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Technical Guidance Memo 90-3 Confidentiality of Records

Procedures for Handling and Granting Confidential Status
June 18, 1990

This memo clarifies Division policies and procedures for handling confidential records subject to Section 23-0313 of the Oil, Gas and Solution Mining Law, and introduces new guidelines for holding certain records confidential under Article 6 Section 87-2 of the New York State Public Officers Law, independent of ECL 23-0313. Public access to confidential materials under FOIL is also discussed:

  1. Filing of Confidential Records

    1. Each regional office will maintain three file categories for confidential records.

      1. A holding file for records under six month confidentiality.

      2. A confidential file for records under two year confidentiality.

      3. An interim file for records being reviewed for extended confidentiality under Public Officers Law 87-2.

    2. The central office will maintain a confidential file for records under extended confidentiality subject to Public Officers Law 87-2.


  2. Procedures for handling records confidential under Section 23-0313 of the Oil, Gas and Solution Mining Law.

    Applications for permits, information on the total depth of wells, and plugging records are never excepted from public disclosure.

    Records eligible for confidential status under Section 23-0313 of the Oil, Gas and Solution Mining Law include well logs, well samples, directional surveys, and well drilling and completion reports. These records are never eligible for "unlimited" confidentiality under Public Officers Law 87-2.

    1. Initial six month confidentiality

      1. The regional office issues the permit and establishes a well folder in the open files and another well folder in the confidential holding file.

      2. The regional office receives spud notification from the operator and:

        1. enters the spud date into the computer,

        2. enters the release date (six months from the spud date) into the confidential status date field (conf date), and

        3. enters a'Y' into the confidential field (confid) on the computer.

      3. The regional office places all confidential materials into the locked holding file organized by spud date.

      4. If drilling operations are continuous beyond six months, the operator may request a six-month extension of the initial confidential period. (While these procedures have been included here, we anticipate that there will be very few, if any, circumstances that warrant six-month extension.)

        1. The request must be made to the regional office in writing no more than thirty days before the expiration of the first six-month period.

        2. The regional office must act upon the request within 15 days after the receipt of the written notification.

        3. The regional office enters new release date in the computer records conf date field and updates record in holding file.

      5. The regional office runs check on the computer at least monthly using the confidential status release date (conf date) to identify those wells due for release from six month confidentiality. If an operator does not request an extension of the confidential period beyond the applicable six-month period, the regional office changes the'Y' in the "confid" field to an 'R', transfers the confidential records from the holding file to the open files and forwards copies to the central office and the New York State Museum.

    2. Two Year Extension of Confidentiality

      1. If an operator requests an extension of confidential status beyond the applicable six-month period, he must send a letter by certified mail to the central office postmarked at least 30 calendar days before the expiration of the six-month period. The central office will only forward to the regional office those requests meeting these criteria. In all other cases, the central office will notify the operator by mail that his request is denied, and will forward a copy of the denial notice to the regional office.

        1. Central office logs in all requests and forwards properly submitted requests to region. The central office will periodically review the log at least monthly to verify confidential status.

        2. Upon receipt of the request, the regional office determined the extended release date of two years from the commencement of the applicable six-month period and notifies the operator of this date by letter. The regional office enters an 'E' into the confidential field (confid) and the release date into the confidential status date field (conf date) of the computer record for such wells. The regional office remove records from the holding file and places them in locked confidential files.

        3. The regional office notifies the central office and Museum of confidential status and transmits copies of records as confidential.

        4. The regional office runs check on the computer at least monthly using the confidential status release date (conf date), transfers released wells to the open files and changes the 'E' code for confidential status to an 'R'. The regional office notifies central office and Museum of released records.

        The Division will honor all requests meeting the criteria for extending confidential status for the 18-month period. However, when any person requests such information in accordance with State Freedom of Information Law procedures during the 18-month period, the Division must issue a written determination either continuing or terminating exception from public disclosure.

      2. Records which were confidential before Section 23-0313 was enacted (July 24, 1990) or until two years from the spud date, whichever is later.

  3. Procedures for Handling Records Confidential Under Section 87-2 of the New York State Public Officers Law

    Records not specified in Section 23-0313 of the Oil, Gas and Solution Mining Law may be eligible for continuous confidential status under Section 87-2 of the Public Officers Law. Such records must be classifiable as "trade secrets," and will generally consist of the following types of information:

    1. Detailed analysis, opinion, interpretation or evaluation of factual data, such as reservoir study or analysis

    2. Records, reports or studies of a formation or geologic phenomenon, or some other significant topic

    Procedures for determining "trade secret" status are outlined in Chapter 3364 of the Policies and Procedures Manual, 6NYCRR 616.7 (general regulations) and Charles E. Sullivan's memo of August 2, 1985, FOIL Determinations Guidelines.

    1. An operator may request confidential status for records at the time of submission, according to the following guidelines:

      1. The records in question must be clearly identified as "trade secret" or "proprietary information."

      2. The request for exception from public disclosure must be in writing and sufficiently justify the exception.

    2. The central office will log in the request and forward it to the appropriate Section Chief or Regional Minerals Manager. The log will be periodically reviewed to insure a timely response to each request.

    3. The respective region or section, in consultation with the central office records custodian, will determine if the material is excepted from disclosure under Section 87-2 of the Public Officers Law.

      1. The determination will be based on whether the information can be considered a "trade secret" or "proprietary information."

      2. During this time, all records will be held in a locked cabinet, separated from well files and other confidential material.

    4. The respective region or section will arrive at one of four possible conclusions and perform the tasks outlined below:

      1. Approval of confidentiality

        1. Notify operator of approval.

        2. Briefly describe materials in "completion remarks" field on computer.

        3. Transmit all confidential materials and a copy of approval notification to the central office.

      2. Denial of confidentiality

        1. Inform operator of denial and option to appeal to DEC general counsel.

        2. Continue to hold all records confidential until the time limit for operator appeal expires or appeal is denied.

      3. Demand for substantiation of trade secret status

        1. Will demand further substantiation from the operator within five business days of receiving a written request.

        2. The operator will be given ten business days to acknowledge receipt of demand for further substantiation; failure to do so will result in denial. In this case, the region/section will continue to hold all records confidential until the time limit for operator appeal expires.

      4. Partial approval of confidentiality

        1. The region/section may determine that only certain portions of records submitted for extended confidentiality are in fact trade secrets. The decision to deny trade secret status to certain portions will be subject to operator appeal.

        2. Notify the operator which records will be held as trade secrets and which will not, and of their option to appeal to DEC general counsel.

        3. Continue holding all records confidential until time limit for operator appeal expires or appeal is denied.

      In all cases, the region or section must forward a copy of its determination to the central office records custodian. If confidentiality is approved, either by the regional office or by DEC general counsel, the confidential records will be transmitted to the central office for storage.

    5. Central office activities

      1. Materials held confidential under the Public officers Law 87-2 will be stored in a locked cabinet in the central office.

      2. The central office will complete entries to the confidential well log based on the regional/section determination.

      3. The central office will verify that the region or section enters a brief description of materials into the computer's "completion remarks" field.

      4. Central office will place a card in regular well file attesting to material being held confidential pursuant to the Public Officers Law.

      5. The central office will notify the state museum of the existence of such records, but will not forward copies of those records to the museum.

  4. Public Access Under FOIL to Records Held Confidential by the Division of Mineral Resources

    1. No materials subject to six month confidentiality are subject to access challenge under FOIL.

    2. Records subject to two year confidentiality under Section 23-0313.1(d)(2) of the Oil, Gas and Solution Mining Law, and those confidential under Section 87-2 of the Public Officers Law, are subject to access challenge under FOIL.

      1. FOIL requests for access to records will be handled in accordance with procedures in the following documents:

        1. Policy and procedures manual:
          Title 3300 - Office Management, Chapter 3364 - Freedom of Information

        2. Charles E. Sullivan's memo of August 2, 1985:
          FOIL Determinations Guidelines

      2. FOIL requests for access to records subject to two year confidentiality under ECL 23-0313 will be handled by the appropriate regional office.

      3. FOIL requests for access to records subject to extended confidentiality under Public Officers Law 87-2 will be handled by the central office.

      4. The central office will notify the appropriate Regional Minerals Manager or Section Chief of requests for access to materials confidential under Public Officers Law 87-2.

      5. All appeals will be handled in consultation with the DEC general counsel in Albany.


  5. Transmittal of confidential records from the regional offices must be carried out in accordance with Technical Guidance Memo 87-1 of January 6, 1987.

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