N.J. Admin. Code § 14:1-12.9

Current through Register Vol. 56, No. 12, June 17, 2024

Section 14:1-12.9 - Final confidentiality determination

(a) If, after review of all the information submitted pursuant to this subchapter, the custodian determines that the asserted confidential information is not confidential information, the custodian shall as quickly as feasible:

1. Notify the claimant's designee of the determination through reasonable efforts to contact the designee by telephone, e-mail, fax, or other means provided in the designation submittal; and

2. Provide written notice that meets the requirements of (b) below to the claimant's designee.

(b) The written notice required under (a)2 above shall include the following:

1. The date on which the disclosure was made or will be made;

2. The name of the agency or other person to which the custodian disclosed or will disclose the information that was asserted, or will assert, as confidential;

3. A brief description of the information;

4. The basis for the determination; and

5. A statement that the written notice constitutes final agency action concerning the confidentiality claim.

(c) If after review of the substantiation submitted pursuant to this subchapter, the custodian determines that the asserted confidential information is confidential information, the custodian shall:

1. Treat such information as confidential;

2. Send written notice of the determination to the claimant and, if applicable, to any requester with a pending request to inspect or copy the information which was the subject of the confidentiality claim; and

3. State in the notice the basis for the determination and that it constitutes final agency action.

(d) Notwithstanding a custodian's determination that information submitted pursuant to this subchapter is not confidential information, the custodian will not release such information if a court of competent jurisdiction, in accordance with the court rules, declares the information confidential and not subject to disclosure.

1. If claimant seeks a declaratory judgment regarding confidentiality, or other court order, claimant shall notify the custodian and any requestor of any action or order seeking a declaration of confidentiality immediately upon filing with the court.

i. Any such judicial determination shall be independent of any confidentiality determination by the custodian. The court shall not be bound by any prior determination by the Board or the custodian.

2. Except as otherwise required pursuant to the Open Public Records Act, 47:1A-1 et seq., or the common law Right-to-Know, the custodian shall not release any information while a judicial confidentiality determination is pending as set forth in this subsection.

(e) The custodian's determination under this section shall constitute final agency action. Notwithstanding that a claimant may seek a declaratory judgment regarding confidentiality under (d) above, any challenge or appeal of a final agency action shall be made in accordance with the court rules or as set forth in the Open Public Records Act, 47:1A-1 et seq.

N.J. Admin. Code § 14:1-12.9

Amended by R.2008 d.79, effective 4/7/2008.
See: 39 N.J.R. 4551(a), 40 N.J.R. 1917(a).
In (a)1, substituted "the designee" for "them"; in (a)2, deleted "by certified mail, return receipt requested" from the end; in (c)2, inserted "and" at the end; in (c)3, substituted a period for "; and" at the end; and deleted (c)4.
Amended by R.2013 d.103, effective 8/19/2013.
See: 45 N.J.R. 22(a), 45 N.J.R. 1965(a).
In (b)1, inserted "or will be made"; in (b)2, inserted "or will disclose", and substituted "asserted, or will assert, as" for "claimed"; in (b)3, deleted "disclosed" following "information"; added new (d); recodified former (d) as (e); and in (e), inserted the last sentence.