N.J. Admin. Code § 8:59-3.15

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

Section 8:59-3.15 - Restricted access to trade secret information retained by the DOH/DEP

(a) Except as provided in (b) through (g) below and 8:59-3.7 or when so ordered by a court, no person shall willingly and knowingly disclose, and no person shall willingly and knowingly receive, trade secret information protected by this subchapter without the employer's written consent.

(b) An officer or employee of the State may be granted access to trade secret information protected by this subchapter, only in accordance with this section, upon a demonstration to the satisfaction of the DOH/DEP that such request is in connection with the official duties of the officer or employee under any law for the protection of public health.

1. An officer or employee of the State designated by the head of an agency may make a written request to the DOH/DEP for information on a pending or approved trade secret claim. Such request shall state:

i. Name, title, program, division, and department of the officer or employee;

ii. The officer or employee's need for the information and its connection with official duties;

iii. The reason why the information cannot be obtained from other sources; and

iv. The public health law for which the information is needed.

2. If the DOH/DEP proposes to release trade secret information to an officer or employee of the State, the DOH/DEP shall notify, in writing and by certified mail, return receipt requested, the employer that submitted the trade secret claim of the intent to release such information.

(c) A contractor of the State and its employees may be granted access to trade secret information protected by this subchapter if the DOH/DEP determines that such disclosure is necessary for the completion of any work contracted for in connection with the implementation of the Act, and that the requirements of (c)1 through 3 below have been satisfied. Such approval shall restrict access to the trade secret information to persons approved by the Department. The DOH/DEP shall notify employers of this determination prior to disclosure of the trade secret information. A contractor shall not receive any trade secret information unless:

1. The contractor has submitted a plan to the DOH/DEP that describes measures for adequately protecting trade secret information from unauthorized disclosure, and the DOH/DEP approves such plan;

2. The contractor has provided written documentation demonstrating, to the satisfaction of the DOH/DEP, that the contractor maintains professional liability insurance or suitable indemnity insurance and comprehensive general liability insurance in forms and amounts to be set by the DOH/DEP; and

3. In addition to the requirement of (e) below, the contractor has signed an agreement developed by the DOH/DEP, protecting trade secret information from unauthorized disclosure. The agreement shall include a provision whereby the contractor assumes liability for any damages to an employer resulting from the intentional or negligent release of trade secret information by the contractor and its employees.

(d) The DOH/DEP shall provide any information for which a trade secret claim is pending or has been approved to a physician or osteopath when such information is needed for medical diagnosis or treatment. The physician or osteopath who will receive confidential information shall be required to sign an agreement developed by the DOH/DEP protecting the confidentiality of the information disclosed. This agreement shall include a provision prohibiting the physician or osteopath from revealing the trade secret information to any person. Where feasible, the employer shall be notified prior to disclosure of the information.

(e) Any person granted access to trade secret information pursuant to this section shall sign an agreement developed by the DOH/DEP protecting the confidentiality of the information prior to receipt of the information.

(f) Any person who receives trade secret information pursuant to this section shall take appropriate measures to protect the information from unauthorized disclosure that shall include, but not be limited to:

1. Keeping the information confidential from unauthorized persons;

2. Keeping any records containing trade secret information in a locked file cabinet or safe, when not in use;

3. Using the information only for the use approved by the DOH/DEP;

4. Not reproducing the trade secret information; and

5. Returning all material on which the trade secret information has been recorded to the DOH/DEP within 30 days or when finished using the information, whichever is sooner.

(g) For emergency public health or medical purposes, the DOH/DEP may waive the requirements of (b)1 (written request by State officer or employee), (b)2 (notice to employer prior to release of trade secret information), and (e) (signing a confidentiality agreement prior to receipt of trade secret information) above, and shall follow the procedures set forth in (g)1 and 2 below, if the DOH/DEP determines that waiver of said requirements is necessary to protect health or the environment against an unreasonable risk of injury to health or the environment or is necessary for an emergency medical diagnosis or treatment by a physician or osteopath.

1. If trade secret information is conveyed verbally, in person or by telephone, the contents of a confidentiality agreement developed pursuant to (e) above, shall be read to the persons receiving such information.

2. Any person receiving oral or written trade secret information pursuant to this subsection shall sign a confidentiality agreement developed pursuant to (e) above, within 72 hours of receipt of such information.

N.J. Admin. Code § 8:59-3.15

Amended by 50 N.J.R. 1036(a), effective 3/19/2018