N.J. Admin. Code § 7:1D-3.2

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

Section 7:1D-3.2 - Records not subject to disclosure

(a) The documents, files, data, and other records of the Department that are listed below shall not be deemed to be government records subject to public access pursuant to OPRA. Such records shall not be available for inspection, examination, or copying by members of the public or by any other individual, except authorized members and employees of the Department or except as provided by order of the Governor of the State, a court or tribunal of competent jurisdiction, or applicable law:

1. Records relating to mediation proceedings conducted by or on behalf of the Department, except that any records that were open for public inspection, examination or copying prior to mediation shall continue to be available for public inspection, examination or copying during and after mediation. Final agreements resulting from mediation shall be available for public inspection, examination or copying;

2. Records that reveal the identity of a complainant. For purposes of this paragraph, "complainant" means a person who submits a report, complaint, or an allegation to the Department either alleging violation of environmental law or reporting an environmental concern and who is not obligated by law or rule to submit such a report, complaint, or allegation;

3. Portions of records containing the precise location of endangered and/or threatened animal species or endangered plant species or plant species of concern.

i. Notwithstanding (a)3 above:

(1) The Department shall disclose the precise location of endangered and/or threatened animal species, endangered plant species or plant species of concern to the owner of land upon which the animal or plant species has been located.

(2) If the Department denies or issues any permit or approval, where any of the aforementioned actions is the subject of a challenge in any administrative or judicial forum, the applicant, or any other person with a constitutional or statutory right to a hearing on that action by the Department, may request, and the Department shall provide, only those Department records containing the location(s) of endangered and/or threatened animal species, endangered plant species or plant species of concern relied upon by the Department to make any of the denials, approvals, or determinations.

(3) Prior to providing the records containing the location(s) of endangered and/or threatened animal species, endangered plant species or plant species of concern under (a)3i(1) or (2) above, the Department shall redact the name(s) of the person(s) who provided the information contained in the records provided under (a)3i(1) or (2) above if the Department determines that the person(s) providing such information did not provide this information in the course of his or her employment with the State of New Jersey.

ii. If the Department determines that disclosure under (a)3i above is likely to create a substantial risk of harm, theft, or destruction to the species or habitats or the area or place where the species or habitats are located, the Department may require the recipient of the records to state in writing prior to access to the records that he or she shall keep the precise location of endangered and/or threatened animal species, endangered plant species or plant species of concern confidential.

iii. A property owner who has obtained records in accordance with this paragraph may share the records or disclose the information contained therein to his or her agent (such as an attorney, environmental consultant, or engineer) to the extent necessary to prepare and submit an application to the Department or any other governmental regulatory authority for a permit, approval, authorization, or other determination. If a property owner is required to execute a confidentiality agreement in accordance with ii above, the property owner shall not share the records or disclose the information contained therein to his or her agent unless the agent states in writing (on a form provided by the Department) prior to access to the records or information contained therein that he or she shall keep the precise location of endangered and/or threatened animal species, endangered plant species, or plant species of concern confidential. The property owner shall submit each such writing to the Department at the address specified on the form.

iv. For the purposes of this paragraph, the term "endangered and/or threatened animal species" shall have the meaning(s) of the terms "endangered" and/or "threatened" as these terms are defined at N.J.A.C. 7:25-4.1. The term "endangered plant species" shall have the meaning of "endangered species" as the term is defined at N.J.A.C. 7:5C-1.4. The term "plant species of concern" shall have the meaning as set forth at N.J.A.C. 7:5C-3.1; and

4. Portions of records that identify, track, or otherwise determine the location of any animal or bird which, in the opinion of the Division of Fish and Wildlife, is potentially capable of inflicting serious or fatal injuries or being a menace to public health including, but not limited to, bears, nondomestic dogs, nondomestic cats, venomous and constrictor snakes, and exotic species. This includes, but is not limited to, records containing information regarding sightings, dens, nests, or other habitation sites, locations of traps or other control techniques, and tracking or locational information generated by collars, tags, or transmitters affixed to such species by the Department including, but not limited to, radio frequency identification tags (RFID) and passive integrated transponder tags (PIT).

i. The Department shall disclose the records identified in (a)4 above to the owner of land upon which the potentially dangerous species has been located, if requested by the landowner.

(1) Prior to providing records containing the location of potentially dangerous species under this subparagraph, the Department shall redact the name of the person who provided the information contained in the records, if the Department determines that the person providing such information did not provide this information in the course of his or her employment with the State of New Jersey.

(b) The Department shall withhold any record if the Department determines that the inspection, examination or copying of that record would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism. Such records include, but are not limited to:

1. Any inventory of enforcement resources, including standard operating procedures, compiled and any policies or plans compiled by the Department pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies, including employee emergency contact information;

2. Information related to a nuclear power plant, which, if disclosed, would jeopardize the public health, safety and welfare or the security of the plant;

3. Listing of low level radioactive waste generators including amounts of waste generated and shielding designs for sources of radiation;

4. National defense related information from Lockheed Martin's Aegis Radar System facility;

5. Environmental Emergency Procedures detailing plans such as emergency procedures for wastewater treatment facilities pursuant to New Jersey Pollutant Discharge Elimination rules, 7:14A-6.12(D);

6. Inundation maps submitted as part of Emergency Action Plans pursuant to Dam Safety Standards, 7:20-1.7(f) and 1.11(i);

7. Discharge Prevention Containment and Countermeasures and Discharge Cleanup Removal Plans and related general site plans; and

8. Radioactive Materials Licenses issued by the Nuclear Regulatory Commission and advisories issued by the Nuclear Regulatory Commission that address lessons learned, security or enforcement issues.

(c) Records related to Green Acres, Blue Acres, and Natural Lands Trust land acquisitions, program offerings, and active projects, including appraisals, valuations, and title investigations, shall be made available for public inspection, examination, and copying no later than 48 hours before formal action is to be taken on any land transaction, program offering, or active project, unless the land transaction, program offering, or active project is actively under negotiation, a binding contract has not been executed, or disclosure of the records would jeopardize the land transaction, program offering, or active project. An active project is one that has been initiated within two years of the date of appraisal.

N.J. Admin. Code § 7:1D-3.2

Amended by 51 N.J.R. 1759(a), effective 12/2/2019