Current through Register Vol. 56, No. 24, December 18, 2024
(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,
N.J.S.A. 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
N.J.S.A. 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
N.J.S.A. 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
N.J.S.A. 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
N.J.A.C.
7:14A-18.3 shall be regarded by the
Department as entitled to confidential treatment 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. 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,
N.J.A.C.
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
N.J.S.A. 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 N.J.A.C. 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.
