Adoption of Amendments to Supervisory Procedure G 106 (Public Access to Banking Department Records)
Supervisory Procedure G 106 is repealed and a new G 106 is added to read as follows:
SUPERVISORY PROCEDURE G 106
PUBLIC ACCESS TO BANKING DEPARTMENT RECORDS
(Statutory authority: New York Public Officers Law, §87 & §89, Banking Law §12 & § 36.10)
§ 106.1 Definitions.
When used in this Supervisory Procedure:
(a) "Person" shall include individuals and commercial enterprises.
(b) "Interested Parties" shall mean the person requesting the record, the person who requested the exception and the committee on public access to records.
(c) "POL" shall mean New York Public Officers Law.
(d) "CPLR" shall mean the New York Civil Practice Law and Rules.
§ 106.2 Times and places when records are available.
Persons seeking access to the records of the Banking Department made available by POL §§ 87 et seq. (Freedom of Information Law), should submit a written request for photocopies of such records or should submit a written request to inspect such records during regular business hours on regular working days at the Banking Department's New York City office located as set forth in Supervisory Procedure G1. The written request may be submitted by regular mail, by facsimile or by email.
§ 106.3 Records Access Officer.
The Secretary of the Banking Board is the Records Access Officer for the Banking Department and shall be responsible for coordinating the Department's response to requests for records. The Records Access Office is located in the New York City office of the Banking Department as set forth in Supervisory Procedure G1.
§ 106.4 Fees and payment for copies or reproductions.
The Banking Department charge shall be 25 cents per page for copies up to 9 x 14 inches, or the actual cost of reproducing any other type of record. Each requestor is entitled to ten free copies on an annual basis.
Based on the circumstances of each request, the Banking Department may:
(a) Require payment prior to processing a request, or
(b) Require payment prior to releasing a completed request, or
(c) Waive any applicable fees.
Waivers of fees will be granted on a case-by-case basis and will be decided based upon the circumstances surrounding each request. Organizations or entities are not entitled to a blanket waiver of all their FOIL requests.
§ 106.5 Procedures for gaining access to records.
A person seeking access to Banking Department records shall follow the
procedures as set forth below:
(a) A request must be made in writing and shall reasonably describe the records sought. To the extent possible, a request shall supply dates, file designations and any other identifying information that may assist the Banking Department in locating the desired documents.
(b) If a person seeks to review records that are in the possession and control of the Banking Department, an appointment must be arranged through the Records Access Officer. The review of such records shall take place during regular business hours and on regular business days. There is no fee imposed for viewing records. However, the Banking Department may charge 25 cents per page for those records that need to be redacted prior to review.
(c) If access to records is neither granted nor denied within five business days after receiving the request, the Banking Department shall issue a written acknowledgment of the receipt of the request and shall provide a statement as to the approximate date when the request will either be granted or denied. This date will be an estimate based on all the attendant circumstances that are reasonably forseeable at the time that the request is received.
§ 106.6 Denial of access to records and the right to appeal.
(a) Any denial of access to records shall be communicated in writing to the
requestor. Such writing shall state the reasons for the denial and shall advise
the applicant of the right to appeal.
(b) Except for records covered by POL § 89(5), any requestor who is denied access to any departmental records may, within 30 days of such denial, appeal to the Superintendent or an authorized representative of the Superintendent. Within 10 business days from the receipt of the appeal, the Superintendent shall render a decision upholding or reversing the denial and the appellant will be advised in writing as to the reasons for the denial. The action of the Superintendent is subject to judicial review as provided in Article 78 CPLR.
(c) Any denials or appeals concerning records that may be withheld from public disclosure as trade secrets under POL § 87(2)(d), in which a request is made to exempt such records or portions thereof from public disclosure pursuant to § 89(5)(d), shall be subject to the following provisions of section 106.7.
§ 106.7 Trade Secret/Competitive Harm Exemption
(a) A commercial enterprise that submits records to the Banking Department may request pursuant to POL § 89(5) that such records or portions thereof be exempted from public disclosure as trade secrets under POL § 87(2)(d). This section gives the Banking Department the authority to deny access to records that are trade secrets, or are maintained for the regulation of the commercial enterprise, which if disclosed would cause substantial injury to the competitive position of the enterprise. In order to obtain the protection afforded by this section, a person that submits records to the Banking Department, may at the time of submission, request that the Banking Department except such information from disclosure pursuant to § 87(2)(d). The request shall be in writing and shall state the reasons for claiming the exemption.
(b) If a request for confidentiality is made pursuant to POL § 89(5)(a)(1), then the following procedures as set forth in POL § 89(5) shall apply:
(1) The Banking Department may at any time, request additional written justification in support of the said exemption. It then shall notify the commercial enterprise requesting said exemption that it must respond within 10 business days from the date the Banking Department requests such information. POL § 89(5)(b)(2).
(2) Within seven business days of receiving this response, the Banking Department shall issue a written determination granting, continuing or terminating the exemption and the reasons therefore. This determination shall be in writing and shall be served on all interested parties.
POL § 89(5)(b)(3).
(3) Within seven business days of receiving a notice of the written denial of an exemption or access to a record, an appeal may be filed with the Superintendent of Banks. POL § 89(5)(c)(1).
(4) The appeal shall be determined by the Superintendent of Banks, within 10 business days of the receipt of the appeal. A written notice of the determination will be given to all interested parties along with the reasons therefor. POL § 89(5)(c)(2).
(5) A proceeding to review an adverse determination by the Banking Department may be brought under Article 78 of the CPLR. Such proceeding must be commenced in New York Supreme Court, within 15-days after the Superintendent of Banks serves the written notice of the decision on the interested parties. POL § 89(5)(d).
(6) All records submitted to the Banking Department shall continue to be exempt from disclosure pending the 15-day appeal period. POL § 89(5)(a)(3).
§ 106.8 Confidential Communications.
Reports of examinations and investigations, including correspondence and memoranda arising out of such, are deemed to be confidential material by the Banking Department pursuant to New York Banking Law § 36(10). Access to these records may be denied under the provisions of POL § 87(2)(a).