N.J. Admin. Code § 7:26C-15.4

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:26C-15.4 - Confidentiality determination

(a) When the Department receives a request for a confidentiality determination that complies with N.J.A.C. 7:26C-15.3, the Department shall determine that the information for which a confidentiality claim has been asserted is confidential as follows:

1. The person has asserted a confidentiality claim pursuant to this subchapter which has not expired by its terms, been waived or withdrawn;

2. The person has shown that reasonable measures were taken to protect the confidentiality of the information and that the person intends to continue to take such measures;

3. The person has demonstrated that the information is not, and has not been, available or otherwise disclosed to any other person without the consent of the person asserting a confidentiality claim (other than by subpoena or by discovery based on a showing of special need in a judicial or quasi-judicial proceeding, as long as the information has not become available to persons not involved in the proceeding);

4. The person has demonstrated that no statute or regulation specifically requires disclosure of the information; and

5. Except for information related to national security, the person has shown that disclosure of the information would be likely to cause substantial damage to its competitive position.

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

1. Receives a request under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., or the Freedom of Information Act, 5 U.S.C. § 552(b)(5), to inspect or copy such information;

2. Finds it necessary to determine whether information in its possession is entitled to confidential treatment; or

3. Determines for any reason in the public interest to disclose the information to persons not authorized by this subchapter to have access to confidential information.

(c) Within 30 calendar days after deciding that the information is not entitled to confidential treatment, the Department shall send written notification, by certified mail, return receipt requested, to the person who submitted the information, outlining the reasons for its decision and that the information will become part of the Department's public files unless successfully contested pursuant to (d) below.

(d) A person who wishes to contest a determination by the Department that the information submitted is not entitled to confidential treatment shall, within 30 calendar days after receipt of the Department's written notification, submit evidence to support the person's contention that the Department's initial determination was incorrect. The evidence may include, but need not be limited to, a statement indicating:

1. The period of time for which confidential treatment is desired by the person (for example, until a certain date, until the occurrence of a specified event, or permanently);

2. The measures taken by the person to guard against undesired disclosure of the information to others;

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

4. The extent to which disclosure of the information would result in substantial damage to the person, including a description of the damage, an explanation of why the damage would be substantial, and an explanation of the nexus between disclosure and the damage.

(e) Failure of the person to furnish timely comments or exceptions pursuant to (d) above waives the person's confidentiality claim.

(f) The person may assert a confidentiality claim to any information submitted to the Department as part of its comments pursuant to (d) above.

(g) A person may submit a written request for an extension to contest the Department's determination pursuant to (d) above. The Department may extend the time limit for submitting comments pursuant to (d) above for good cause.

(h) The Department shall review the evidence and:

1. To the extent that the Department determines that the information submitted is not entitled to confidential treatment, the Department shall send written notification of this determination to the person by certified mail, return receipt requested. The notice shall state the basis for the determination and that the Department shall make the information available to the public on the 14th calendar day after receipt by the person of the written notice; or

2. To the extent that the Department determines that the information submitted is entitled to confidential treatment, the information shall not be disclosed, except as otherwise provided by this subchapter. The Department shall send written notification of this determination to the person by certified mail, return receipt requested.

N.J. Admin. Code § 7:26C-15.4