Memo in Opposition, A9022

A.9022 (Englebright)

MEMORANDUM IN OPPOSITION

             This memorandum is submitted on behalf of Energy Coalition New York in opposition to the subject bill which would require state agencies to periodically review records that have been excluded from release because they include trade secrets or critical infrastructure information, effectively limiting the time frame of a Freedom of Information Law (“FOIL”) exemption pursuant to Section 87 of the Public Officers Law.

             Energy Coalition New York consists of New York State’s major gas and electric utility companies: Central Hudson Gas & Electric Corporation, Consolidated Edison Inc., National Fuel Gas Distribution Corporation, National Grid, New York State Electric & Gas Corporation, and Rochester Gas and Electric Corporation. Coalition member companies collectively employ more than 32,000 people, service more than 8.5 million customers, and pay more than $3 billion in State and local taxes, assessments and fees. The Coalition member companies annually invest billions of dollars to make capital improvements to the electric and natural gas infrastructure located in New York State.

             Investor owned utilities file rate and other applications with the New York State Public Service Commission (“PSC”) which include trade secret information that is currently excepted from disclosure under FOIL by determination of the PSC. This bill provides that an exception for a trade secret would expire at the end of three years. It places the burden on the party receiving the trade secret designation to seek a renewal of the trade secret protection for an additional three years within sixty days prior to its expiration.

                    Investor owned utilities are also subject to the provisions of Executive Law §§ 713 and 716. These provisions, enacted in 2003 and 2007, respectively, require the state Division of Homeland Security and Emergency Services (DHSES, formerly the state Office of Homeland Security) to periodically review “critical infrastructure” relating to energy generation and transmission, and natural gas fuel transmission facilities as part of the state’s efforts to prevent and prepare for acts of terrorism. Energy Coalition members work with state agencies to conduct vulnerability assessments to ensure that the critical infrastructure is best protected from terrorist attack, and that we are prepared to respond appropriately in case of such an attack. FOIL exemptions are essential to ensuring that this critical infrastructure information is not available to the general public. This legislation provides that FOIL exemptions for critical infrastructure will expire every three years, placing a burden to re-apply for such exemption on the companies maintaining such infrastructure.

             This bill places an extraordinary burden on businesses to preserve their trade secrets and protect their critical infrastructure by requiring re-application to maintain the exemption. The state agency has made a determination that the submitted material is exempt. If a party wants to challenge that determination, access to an Article 78 proceeding is available.

This bill creates a situation where sensitive trade secrets and information relating to critical infrastructure could be made public through a ministerial failure to renew. There is no public policy foundation to change the current system. This bill creates a paperwork burden not only on the applicant but also on the state agencies that would be required to re-process applications. It may also result in the inadvertent release of sensitive information relating to critical infrastructure, which (per Public Officers Law § 86) “could jeopardize the health, safety, welfare or security of state, its residents or its economy.”

             Based on the foregoing, Energy Coalition New York respectfully requests that this legislation not receive favorable consideration.