LAW AND PUBLIC SAFETY

DOMESTIC SECURITY PREPAREDNESS

Access to Records                                  

Proposed New Rules: N.J.A.C. 13:1F

Authorized By: Peter C. Harvey, Attorney General, in consultation with the Domestic Security Preparedness Task Force.

                                                                              

Authority: N.J.S.A. 47:1A-1, Executive Order No. 9 (Hughes 1963) and Executive Order No. 21  (McGreevey 2002).

Calendar Reference: See Summary below for explanation of exception to calendar requirement.  

Proposal Number: PRN 2004-410         .

 

Submit comments by December 17, 2004 to:

Timothy P. Crowley

Deputy Attorney General

P.O. Box 080

Trenton, NJ 08625-0080

 

 

The agency proposal follows:

 

        Summary

The Open Public Records Act, Chapter 404, P.L. 2001, took  effect on July 7, 2002.  The Open Public Records Act (OPRA) provides that all government records shall be subject to public access unless exempt by the provisions of the Act, any other statute, a resolution of either or both houses of the Legislature, a regulation promulgated under the authority of a statute or executive order of the Governor, an executive order of the Governor, the Rules of Court, or any Federal law, Federal regulation or Federal order.  Executive Order No. 21 assigns responsibility to the Attorney General, in consultation with the Domestic Security Preparedness Task Force, to promulgate regulations governing the determination of which government records, at all levels of government, should not be accessible because access to such government records would substantially interfere with the State=s ability to protect and defend the State and its citizens against acts of sabotage and terrorism and would materially increase the risk or consequences of potential acts of sabotage or terrorism.

The events of September 11, 2001, the anthrax attack on postal facilities in this State, and recent events in Spain and Great Britain demonstrate that the threat of sabotage and terrorism against our people and facilities is real and immediate.  Unqualified access to certain government records can threaten the lives, health and safety of the citizens of this State and endanger public and private property.  These regulations are being proposed, consistent with Executive Order No. 21, to strike a balance between the need to allow ready access to government records and the need to deny access to government records where such access would materially diminish the State=s ability to protect and defend the State and its people against sabotage and terrorism.

Executive Order No. 21 declares that at all levels of government- State, county, municipal and school district - certain government records shall not be deemed to be public records within the meaning of P.L. 1963, c. 73 as amended and supplemented by P.L. 2002, c. 404.  Those records include any government record where the inspection, examination or copying of that record would substantially interfere with the State=s ability to protect and defend the State and its citizens against attacks of sabotage and terrorism or would materially increase the risk or consequences of potential acts of sabotage or terrorism.  The Executive Order further directs the Attorney General, in consultation with the Domestic Security Preparedness Task Force, to adopt regulations to govern the determination of which records will be confidential.  The Attorney General, after consulting with the Task Force, proposes new rules for determining which records held by a government agency are deemed confidential and therefore not subject to public access under N.J.S.A.47:1A-1 et seq. as amended and supplemented.  The Open Public Records Act and the Domestic Security Preparedness Act each represent a policy determination by the Legislature regarding the availability of government records on demand.  The purpose of the proposed new rules is to establish standards for use at all levels of government for determining questions of access to a government record on a record specific and/or request specific basis where there is a bona fide security concern.  Such purpose can best be achieved by identifying categories of records that clearly relate to domestic security and by establishing the specific criteria to be used by custodians in determining whether unqualified access should be denied because of domestic security considerations.  See proposed new rule N.J.A.C. 13:1F-1.3.  While the proposed new rules provide custodians with discretion and, authorize custodians, in appropriate circumstances, to deny access to a record that falls within one of the categories of records in furtherance of the security and public safety interests underlying the rule, the rules are not intended to and do not authorize the indiscriminate denial of access to every government record in a category.  Furthermore, nothing in the proposed new  rules is intended to prevent a department or agency from sharing information with the public on a bona fide need to know basis.

Proposed new rule N.J.A.C. 13:1F-1.1 defines the applicability and scope of the rules.  Proposed new rule N.J.A.C. 13:1F-1.2 contains definitions of major terms such as Abiological agent@, Abiotechnology@, Apublic agency@, Amaterial@ and Asubstantial@.  The term Abiological agent@ is defined with reference to the list of such agents found in the Federal regulations governing the interstate shipment of etiologic agents found at 42 C.F.R.  Part 72, Appendix A, which is incorporated by reference, as amended and supplemented.  That appendix includes viruses such as haemorrhagic fever, equine encephalitis, ebola, smallpox and yellow fever.  It includes bacteria such as bacillus anthracis, brucella abortus, burkholderia mallei and pseudomallei and clostridium botulinum.  It also includes rickettsiae such as coxiella burnetii and rickettsia rickettsii.  Finally, that appendix includes toxins such as abrin, botulinum toxins, ricin, shigatoxin and T-2 toxin.  The definitions of Abiotechnology@ and Apublic agency@ track the similar definitions found in OPRA (N.J.S.A. 47:1A-1.1).  The definitions of Amaterial@ and Asubstantial@ follow accepted dictionary definitions of those terms.

Proposed new rule N.J.A.C. 13:1F-1.4 identifies categories of records which will be deemed confidential and not subject to public access, if the inspection, examination or copying of that record would substantially interfere with the State=s ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism.  Paragraph 1 excludes from public access under OPRA that portion of any record relating to building plans, blueprints, schematic drawings, diagrams or operational records where disclosure would reveal the specific location of life safety and support systems, load bearing structural elements, surveillance techniques, alarm or security systems or technologies, operational and transportation plans or personnel deployments.  It also exempts portions of records pertaining to critical infrastructure, government-owned or operated buildings, mass transit facilities, bridges, tunnels, public utilities, emergency response facilities, buildings containing hazardous materials, arenas and stadiums, where disclosure would substantially interfere with the State=s ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or where disclosure would materially increase the risk or consequence of such acts.  Paragraph 2 excludes from public access under OPRA that portion of any record disclosing any inventory or operational protocols pertaining to explosives stored in magazines within the state but does not exclude the location of such magazines.  Paragraph 3 excludes from public access under OPRA that portion of any record that would reveal information pertaining to nuclear power plants, radioactive waste or the Nuclear Regulatory Commission, information regarding shielding designs for low level sources of radiation or certain Nuclear Regulatory Commission advisories that address lessons learned, security or enforcement issues.  Paragraph 4 excludes from public access under OPRA that portion of records disclosing any inventory of cultures and stocks of biological agents infectious to humans, animals or plants, or any regulated medical waste that may contain those agents.  It also excludes certain information on the nature and quantities of certain raw pharmaceuticals as well as any portion of records that would reveal operational protocols pertaining to said materials.  Paragraph 4 applies only to the select biological agents specified in the Federal regulations governing the interstate shipment of etiologic agents found at 42 C.F.R. Part 72, Appendix A.  Paragraph 5 excludes from public access under OPRA that portion of records disclosing any inventory of State and local emergency resources compiled and any policies or plans compiled by a public agency pertaining to the mobilization, deployment or tactical operations involved in responding to emergencies.  It also excludes certain environmental emergency plans, maps and analyses such as off site consequence analyses under the Toxic Catastrophe Prevention Act.  Paragraph 6 excludes from public access under OPRA any overlay or analysis generated by GIS for the purpose of evaluating or securing the state=s critical infrastructure.  Paragraph 7 excludes from public access under OPRA any records regarding the infrastructure and security of computer and telecommunication networks consisting of security passwords, security access codes, security recovery plans, security risk assessments and security test results.  Paragraph 8 excludes from public access under OPRA information prepared from national and state security briefings related to domestic preparedness for acts of terrorism and records not subject to public disclosure under Federal and state law that are shared by Federal or international agencies.  Paragraph 9 excludes from public access under OPRA that portion of any intelligence records, national defense information, advisories marked classified or Aneed to know@ by Federal or State intelligence or law enforcement agencies or other records pertaining to military missions and operations generated by Federal or State governments or any subdivisions.  It also excludes from access classified homeland security information and sensitive but unclassified homeland security information obtained by a State or local government agency from a Federal agency under section 892 of the Homeland Security Act of 2002 (P.L. 107-296).  That section provides that state laws authorizing or requiring a state or local entity to disclose such information shall not apply to such information.  Paragraph 10 excludes from public access under OPRA information reported to the Department of Agriculture or local animal health officials that identifies specific outbreaks or potential outbreaks of contagious diseases in livestock, poultry or bee colonies, or information compiled by the Department as part of an investigation of or surveillance for actual or potential outbreaks of such diseases.  This exclusion only applies, initially, for a brief period to allow the State to determine whether they are dealing with an act of terrorism.  If there is a substantial basis for believing that it was an act of terrorism, the exclusion continues.  Otherwise, the records will be accessible.

Proposed new rule N.J.A.C. 13:1F-1.5 provides that records otherwise exempt from disclosure under N.J.A.C. 13:1F-1.4(a)1 through (a)(10) may be disclosed if the head of a cabinet-level agency, with the approval of the Task Force, determines that there is a bona fide need for public access to the record.  Such disclosures may include appropriate limitations on access, such as the reading room practice followed by some federal agencies.

Because the Attorney General has provided a 60 day comment period, the  proposal is exempt from the rulemaking calendar requirement under  N.J.A.C. 1:30-3.3(a)5.

 

  Social Impact

The proposed new rules implement the requirements of Executive Order No. 21 that the Attorney General adopt regulations to govern the determination of which government records, at all levels of government, should not be accessible on an unqualified basis in order to protect the State and its citizens from acts of sabotage and terrorism.  The proposed rules will have a positive social impact because the Attorney General  has carefully balanced the need for the Governments to protect human life and critical infrastructure, with the need for citizens to have open Government in accordance with N.J.S.A. 47:1A-1 et seq. as amended and supplemented by P.L. 2001, c.404 (Open Public Records Act).  The rules limit access to records where that information could be used by terrorists to commit acts or sabotage or terrorism.  At the same time, the rules recognize that these same records should, in certain instances, be disclosed to those citizens who have a bona fide need to know.  For example, a chemical worker in a plant with hazardous material might need to know protocols necessary to protect that worker and fellow workers.   Emergency responders would need to know what chemicals are stored in a particular facility in order to react properly in an emergency without endangering their lives or the lives of other citizens.  Those persons would still have access to the necessary information, but under controlled circumstances.  The proposed new rules assist law enforcement officers in protecting the lives and critical infrastructure of the State of New Jersey without unduly burdening the general public's right to have access to government records.  The  rules reflect the requirements of P.L. 2002, c. 404, limiting access to records of emergency or security information or procedures for any buildings or facility, and records of security measures, which would endanger public safety if released.

 

        Economic Impact

The proposed new rules will not have direct economic impact on the public or on government in the state.  The rules do not impose any costs on the public or on government agencies.  The proposed new rules will, however, have an indirect beneficial economic impact in that they are intended to preserve the State=s citizens and critical infrastructure assets from the threat or occurrence of sabotage and terrorist acts.

 

            Federal Standards Statement

A Federal standards analysis is not required because the proposed new rules are not subject to any Federal standards.  The Federal Freedom of Information Act, 5 U.S.C. '' 550a et seq., does not apply to records of State government and does not constitute a Federal standard.  The proposed new rules incorporate by reference Federal standards on biological agents, which are found at 42 C.F.R. Part 72, Appendix A. 

 

     Jobs Impact Statement

The proposed new rules will not have an impact on the generation or loss of jobs in the public or private sector in New Jersey. 

 

       Agriculture Industry Impact

The proposed new rules will not have an impact on the agriculture industry in New Jersey.

 

       Regulatory Flexibility Statement

A  regulatory flexibility analysis is not required because the proposed new rules do not impose reporting, record keeping or other compliance requirements on small businesses, as that term is defined in the Regulatory Flexibility Act, N.J.S.A. 52: 14B-16 et seq.

  Smart Growth Impact

The proposed new rules will not have an impact on the achievement of smart growth or implementation of the State Development and Redevelopment Plan.

 

Full text of the proposed new rules follows:

 

CHAPTER 1F DOMESTIC SECURITY PREPAREDNESS

SUBCHAPTER 1 ACCESS TO RECORDS

 

13:1F-1.1                     Scope and applicability

The rules in this chapter apply to all public agencies as defined in N.J.S.A. 47:1A-1.1; provided, that this chapter shall not apply to the Legislature or any other office, board, bureau or commission within the Legislative Branch.

13:1F-1.2            Definitions

The words and terms as used in this section shall have the following meaning, unless the context clearly requires otherwise:

ABiological agent@ means:

a.  any select agent that is a microorganism, virus, bacterium, fungus, rickettsia or toxin listed in 42 C.F.R. Part 72, Appendix A, incorporated herein by reference, as amended and supplemented.

b.   any genetically modified microorganism or genetic element from an organism listed in 42 C.F.R. Part 72, Appendix A, incorporated herein by reference, as amended and supplemented shown to produce or encode for a factor associated with a disease; or

c.   any genetically modified microorganism or genetic element that contain nucleic acid sequences coding for any of the toxins listed in 42 C.F.R. Part 72, Appendix A, incorporated herein by reference, as amended and supplemented, or their toxic subunits.

ABiotechnology@ means any technique that uses living organisms, or parts of living organisms, to make or modify products, to improve plants or animals, or to develop micro-organisms for specific uses, including the industrial use of recombinant DNA, cell fusion and novel bioprocessing techniques.

ACritical infrastructure@ means any system or asset, including but not limited to, communications, financial, computers, transportation, military, government services, emergency services, water, waste water, and energy and public utility services, vital to this State such that the incapacity or destruction of such systems and assets or parts thereof would have an impact on the physical or economic security and public health or safety of any combination of those matters of this State.

ACultures and stocks@ means etiologic agents and associated biologicals, including specimen cultures and culture dishes and devices used to transfer, inoculate, and mix cultures, wastes from production of biologicals and serums, and discarded live and attenuated vaccines. 

AGeographic Information Systems@ or AGIS@ means a computerized system used to store, edit, query, visualize, manipulate and analyze both geographic and non-geographic information comprised of spatial and attribute data.

AMaterial@ means significant, essential.

AOverlay@ means the layers of data generated by GIS that can be classified and analyzed interdependently for the purposes of performing specialized geographic and non-geographic analyses.

APublic agency@ means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; and any independent State authority, commission, instrumentality or agency.  The term also means any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.

ASubstantial@ means of real worth and importance; real, not seeming or imaginary.

13:1F-1.3            Requests for Government Records

(a) Requests to a custodian of a public agency for access to the government records specified in N.J.A.C. 13:1F-1.4  shall be determined by the custodian and such other person as the public agency may direct, in accordance with the standards set out in N.J.A.C. 13:1F-1.4.

(b) In the event that a request for access to the government records specified in N.J.A.C. 13:1F-1.4 is received by the custodian of a state agency and the requested records are held by more than one state agency, the custodian who receives the request shall consult with the custodian(s) of the other state agency(ies) holding such records.

13:1F-1.4            Records Exempt from Access

(a)            The following records shall not be deemed to be Government Records subject to public access, inspection, examination or copying pursuant to the provisions of N.J.S.A. 47:1A-1, as amended and supplemented, if the inspection, examination or copying of that record would substantially interfere with the State=s ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism:

1. i.            Records or portions thereof regarding building plans, blueprints, schematic drawings, diagrams, and operational manuals, where disclosure would reveal the specific location of life safety and support systems, load bearing structural elements, surveillance techniques, alarm or security systems or technologies, operational and transportation plans or protocols or personnel deployments;

ii.          records of airports, mass transit facilities, bridges, tunnels, public utilities, municipal utilities authorities;

iii.          records of critical infrastructure, including but not limited to energy, telecommunications, water and sewage networks, and records of other entities with energy generation, production, distribution, transmission or storage facilities in the State, or entities with transportation lines or facilities;

iv.            emergency response facilities or structures;

v.            buildings where hazardous materials are stored;

vi.            arenas and stadiums;

vii.          any building or structure owned or operated by the State or any of its political subdivisions

2. That portion of records disclosing any inventory or operational protocols pertaining to explosives stored in magazines within the state, provided, that this exception shall not include the location of such magazines;

3. Information relating to nuclear power plants, radioactive waste or the Nuclear Regulatory Commission; information related to a nuclear power plant, which if disclosed, would jeopardize the public health, safety and welfare or the security of the plant; information regarding shielding designs of low-level waste generators; and Nuclear Regulatory Commission issued Radioactive Materials Licenses or advisories that address lessons learned, security or enforcement issues;

4. That portion of records disclosing any inventory of  State cultures and stocks of biological agents and toxins infectious  to humans, animals or plants, as defined in Appendix A of Part 72 of Title 42 of the Code of Federal Regulations as amended and supplemented, and as may be established by the New Jersey Department of Health and Senior Services; that portion of records disclosing any medical waste regulated under the Comprehensive Waste Management Act (N.J.S.A. 13:1E-48.1 et seq.) that may contain those biological agents and toxins; that portion of records disclosing the nature and quantities of  raw pharmaceutical materials such as botox; and any portion of records that reveals operational protocols pertaining to the above-cited materials, including but not limited to the purchase, collection, storage, handling, destruction, treatment, transportation and disposal of said materials;

5. That  portion of records disclosing any inventory of State and local emergency resources compiled and any policies or plans compiled by a public agency pertaining to the mobilization, deployment or tactical operations involved in responding to emergencies, including employee emergency contact information; and any environmental emergency plans and maps as follows:  Environmental Emergency Procedures plans such as emergency procedures for Wastewater Treatment facilities pursuant to N.J.A.C. 7:14A-6.12(D); Inundation maps submitted as part of Emergency Action Plans pursuant to N.J.A.C. 7:20-1.7f and 1.11i; Discharge Prevention Containment and Countermeasures and Discharge Cleanup and Removal Plans and related general site plans; and Off-Site Consequence Analyses developed pursuant to the Toxic Catastrophe Prevention Act;

6. That portion of any overlay or analysis generated using GIS for the purpose of evaluating or securing the State=s critical infrastructure or domestic security preparedness;

7.   Records or portions thereof regarding the infrastructure and security of computer and telecommunication networks, consisting of security passwords, security access codes and programs, access codes for secure software applications, security and service recovery plans, security risk assessments, and security test results to the extent that they identify specific system vulnerabilities;

8. Information prepared from national and state security briefings provided to state or local government officials related to domestic preparedness for acts of terrorism and records not subject to public disclosure under Federal and state law that are shared by Federal or international agencies;

9. That portion of any intelligence  records, national defense information, such as Lockheed Martin=s Aegis radar System facility, advisories marked Aneed to know@ or operations plans, orders and reports pertaining to military missions generated by Federal or state governments or any subdivision thereof, and any information obtained by a State or local government agency from a Federal agency under section 892 of the Homeland Security Act of 2002 (P.L. 107-296); and

10.  Information that identifies specific potential or actual cases of contagious disease in livestock, poultry, or bee colonies, that has been 1) reported by producers, dealers, veterinarians, or by the owner or agent of the owner of such livestock, poultry, or bee colonies; or 2) compiled by the Department of Agriculture as part of an investigation of, or surveillance for, actual or potential outbreaks of contagious disease.  Such information shall not be deemed a government record and shall be confidential pending a determination by the State whether there is a substantial basis to believe that the causes thereof are acts of sabotage or terrorism, which period shall not exceed 15 days unless the state is unable to make this determination, and the state may extend this deadline for an additional 15 days.  Where the State has determined that a substantial basis exists to believe that the causes are acts of sabotage or terrorism, such information shall not be deemed a government record.  Where the State does not have such a substantial basis to believe that the causes are acts of sabotage or terrorism or does not make a determination within 30 days of receipt of the information, such information shall be deemed a government record.

13:1F-1.5 Release of information by state agencies

Notwithstanding the provisions of N.J.A.C. 13:1F-1.4, upon submission to and approval by the Domestic Security Preparedness Task Force, heads of Cabinet-level agencies of State government shall have the authority to allow disclosure of government records, exempt from disclosure under N.J.A.C. 13:1F-1.4(a)(1) through (a)(10), in whole or in part, where the agency head determines that there is a bona fide need for public access to the records and imposes appropriate limitations or conditions upon such authorized disclosure.  Appropriate limitations or conditions may include, but are not limited to, redacting certain information, establishing controlled conditions for access to the records or permitting inspection or examination and as appropriate and agreed to by the state agency the copying of the records.