N.J. Admin. Code § 7:14A-18.5

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:14A-18.5 - Procedure for confidentiality determinations

(a) Information for which a confidentiality claim has been asserted shall be treated by the Department as entitled to confidential treatment unless and until the Department determines that the information is not entitled to confidential treatment as provided in this section.

(b) The Department shall determine whether the information is entitled to confidential treatment whenever the Department:

1. Receives a request under the Open Public Records Act, 47:1A-1 et seq., to inspect or copy such information; or

2. Desires to determine whether information in its possession is entitled to confidential treatment, even though no request to inspect or copy such information has been received.

(c) The initial determination of entitlement to confidential treatment is as follows:

1. If, in connection with any person's claim, the Department makes a preliminary determination that the information may be entitled to confidential treatment, the Department shall:

i. Furnish the notice of opportunity to submit comments as specified in (d) below to the affected person who is known to have asserted an applicable claim and who has not previously been furnished such notice with regard to the information in question; and

ii. Furnish, to any person whose request for release of the information is pending under 47:1A-1 et seq., a notification that the information may be entitled to confidential treatment under this subchapter, that further inquiry by the Department pursuant to this subsection is required before a final determination on the request can be issued, that the person's request is therefore initially denied, and that after further inquiry a final determination shall be issued by the Department.

2. If, in connection with all applicable claims, the Department determines that the information clearly is not entitled to confidential treatment, the Department shall take the actions required by (g) below.

(d) The Department shall provide notice to the affected person and an opportunity to comment as follows:

1. Whenever required by (c)1i above, the Department shall promptly furnish the affected person a written notice stating that the Department is in the process of determining under this subchapter whether the information is entitled to confidential treatment, and that the affected person shall substantiate the claim by submitting comments. The notice shall be furnished by certified mail (return receipt requested), or by other means which provides verification of the date of delivery to the Department. The notice shall state the address of the office to which the affected person's comments shall be addressed, the time allowed for comments, and the method for requesting a time extension under (d)1ii below. The notice shall further state that the Department will construe a person's failure to furnish timely comments as a waiver of the person's claim.

i. If action under this section is occasioned by a request for the information under 47:1A-1 et seq., the period for comment shall be 10 days after the date of the affected person's receipt of the written notice. In other cases, the period for comment shall be 20 days after the person's receipt of the written notice. In all cases, the notice shall reference the provisions of (d)1ii below.

ii. The period of submission of comments may be reasonably extended if, before comments are due, a request for an extension of the comment period is made by the affected person and approved by the Department. Except in extraordinary circumstances, as determined by the Department, the Department shall not approve such an extension without the consent of any person whose request for release of the information under 47:1A-1 is pending.

2. The written notice required by (d)1 above shall inform the affected person of the requirement to submit comments on the following points, subject to (d)3 below:

i. Measures taken by the person to guard against undesired disclosure of the information to others;

ii. The extent to which the information has been disclosed to others, and the precautions taken in connection therewith;

iii. Pertinent confidentiality determinations, if any, by the Department, by USEPA or by other agencies, and a copy of any such determination, if available, or reference to it;

iv. Whether the person asserts that disclosure of the trade secret information would be likely to result in substantial harmful effects on the person's competitive position, and if so, what those harmful effects would be, why they should be viewed as substantial, and an explanation of the causal relationship between disclosure and such harmful effects; and

v. The period of time for which confidential treatment is desired by the person.

3. New information, not submitted in the initial claim for confidentiality, provided it is marked when received in accordance with 7:14A-18.3 shall be regarded by the Department as entitled to confidential treatment if in accordance with the criteria listed in 7:14A-18.6, the Department determines that the information is entitled to confidential treatment. This new information shall not be disclosed by the Department without the person's consent, unless its disclosure is duly ordered by a court, notwithstanding other provisions of this subchapter to the contrary.

(e) An affected person shall be determined to have waived his or her claim of confidentiality as follows:

1. If the Department finds that a person has failed to furnish comments as required under this section, it shall determine that the person has waived his or her claim, and that the information is therefore not entitled to confidential treatment under this subchapter and is available to the public.

2. In all other cases, the Department shall determine with respect to each claim whether or not the information is entitled to confidential treatment for the benefit of the affected person.

(f) If, in accordance with the criteria listed in N.J.A.C. 7:14A-18.6, the Department determines that the information is entitled to confidential treatment, it shall maintain the information in confidence, subject to court order, any applicable court rules, 7:14A-18.9, 18.10, 18.12 and 18.13 or other provisions of this subchapter which authorize disclosure in specified circumstances, and the Department shall so inform the affected person. If any person's request for the release of the information is then pending under 47:1A-1 et seq., the Department shall issue a determination denying that request, which shall state the basis for the determination and that it constitutes final agency action.

(g) If, in accordance with the criteria listed in 7:14A-18.6, the Department determines that the information is not entitled to confidential treatment, the Department shall so notify the affected person. Such notice of denial, or partial denial, of a confidentiality claim shall be in writing, and shall be furnished by certified mail, return receipt requested or by other means which provides verification of the date of delivery to the Department. The notice shall state the basis for the determination, that it constitutes final agency action concerning the confidential claim, and that the Department shall make the information available to the public 10 days after the date of the affected person's receipt of the notice.

(h) If the Department finds that disclosure of information covered by a confidentiality claim would serve to alleviate a situation posing an imminent and substantial danger to public health or safety, it may prescribe such shorter comment period as it finds necessary under the circumstances and make such shorter comment period known to affected persons pursuant to (d)1 above or post-determination waiting period pursuant to (g) above, or both; or disclose confidential information to any person whose role in alleviating the danger to public health or safety necessitates that person's knowing the information. Any such disclosure shall be limited to the minimum information necessary to enable the person to whom it is disclosed to carry out his or her role in alleviating the dangerous situation.

1. Any disclosure made pursuant to this section shall not be deemed a waiver of a confidentiality claim, nor shall it of itself be grounds for any determination that information is no longer entitled to confidential treatment.

N.J. Admin. Code § 7:14A-18.5