New Jersey Administrative Code › Title 7 - ENVIRONMENTAL PROTECTION › Chapter 1D - GENERAL PRACTICE AND PROCEDURE › Subchapter 3 - NON-PUBLIC RECORDS › Section 7:1D-3.2 - Records not subject to disclosure

Current through Register Vol. 56, No. 14, July 15, 2024
(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.