BANKING AND INSURANCE
INDIVIDUAL HEALTH COVERAGE PROGRAM BOARD
SMALL EMPLOYER HEALTH BENEFITS PROGRAM BOARD
REAL ESTATE COMMISSION

Public Records

Proposed New Rules: N.J.A.C. 11:1-44 and 45, 11:20-21 and 11:21-22.

Proposed Amendments: N.J.A.C. 3:3-2.1 and 2.2 and 11:5-1.5

Proposed Repeals: N.J.A.C. 11:1-1.2 and 11:5-1.4

Authorized By: Holly C. Bakke, Commissioner, Department of Banking and Insurance; and as to N.J.A.C. 11:5-1.4 and 1.5, New Jersey Real Estate Commission, Dawn Rafferty, Executive Director; as to N.J.A.C. 11:20-21, Individual Health Coverage Program Board, Wardell Sanders, Executive Director; and as to N.J.A.C. 11:21-22, Small Employer Health Benefits Program Board, Wardell Sanders, Executive Director,.

Authority: N.J.S.A. 17:1-8.1, 17:1-15e, 17:1-1 et seq., 17B:17-1 et seq., 45:15-8 and 47:1A-1 et seq. and Executive Order 9 (Hughes 1963).

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

Proposal Number: PRN 2002-226

Submit comments by August 30, 2002 to:

Karen Garfing
Assistant Commissioner
Legislative and Regulatory Affairs
New Jersey Department of Banking and Insurance
20 West State Street
P.O. Box 325
Trenton, NJ 08625-0325

Fax no.: (609) 292-0896

E-mail: legsregs.dobi.state.nj.us

The agency proposal follows:

 

Summary

On January 8, 2002, the Legislature passed and the Acting Governor approved P.L. 2001, c. 404, known as the Open Public Records Act, which enacted changes in the law concerning public access to government records. The law will be effective July 7, 2002. This law expands the publicís right of access to government records and facilitates the way in which that access is provided by the custodian of those records. Section18 of the law authorizes public agencies to take anticipatory administrative action in advance as may be necessary for the smooth and efficient implementation of the act. The Department of Banking and Insurance ("Department") proposes rules establishing the process by which members of the public may seek access to government records in the possession or control of the Department or agencies within the Department under the revised law. With respect to proposed N.J.A.C. 11:20-21 and 11:21-22, the Department is jointly proposing these new rules with the Individual Health Coverage Program Board ("IHC") and Small Employer Health Benefits Program Board ("SEH"), respectively With respect to N.J.A.C.11:5-1.4 and 1.5, the Department is jointly proposing the amendments and repeal with the New Jersey Real Estate Commission ("Commission"). The act requires the custodian of government records of a public agency to adopt a form for providing public access to government records. The proposed rules in N.J.A.C. 11:1-44 establish a process to be followed by members of the public who seek access to government records held or controlled by agencies within the Department.

The act provides that all government records shall be subject to public access unless exempt from such access by: P.L. 1963, c.73 as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Rules of Court; any Federal law, Federal regulation or Federal order. The Commissioner, pursuant to N.J.S.A.47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), proposes to classify as exempt from public access certain records held or controlled by the Department or agencies within the Department. The act also provides that a public agency should be mindful of the need to safeguard from public access a citizenís personal information with which it has been entrusted when disclosure thereof would violate the citizenís reasonable expectation of privacy. The rules proposed in N.J.A.C. 11:1-45, proposed amendments to N.J.A.C. 11:5-1.5, with respect to the Commission, proposed N.J.A.C. 11:20-21, with respect to the IHC, and N.J.A.C.11:21-22, with respect to the SEH, are designed to serve both these legislative policies by facilitating public access to government records while, at the same time, balancing citizenís reasonable expectations of privacy and the integrity and effectiveness of governmental operations.

A summary of the proposed new rules, amendments and repeals follows:

N.J.A.C. 11:1-44 Access to Government Records

Proposed new N.J.A.C. 11:1-44.1 states the scope and applicability of the rules contained in the subchapter. These new rules apply to agencies under the supervision of the Commissioner and those not under the supervision of the Commissioner, commonly known as in but not of agencies.

Proposed N.J.A.C. 11:1-44.2 sets forth the definitions of terms used in the subchapter.

Proposed new N.J.A.C. 11:1-44.3 provides that the Commissioner shall designate a person to be Department records custodian. The address of the custodian of records is set out in this rule and will be made available to the public by posting on the Department web site.

Proposed new N.J.A.C. 11:1-44.4 provides that all requests for access to government records under the public access to government records law must be on a form approved by the Department. The requester will be asked to provide certain information on the form, including a name, address and telephone number; a brief description of the records requested, type of access (examination, inspection or copying) and medium requested; and the requesterís signature and date submitted to the proper custodian. The form will also provide space for: specific directions and procedures for requesting a government record; which records will be made available; when the record will be available; the fee to be charged; the amount of prepayment of fees that is required; a statement of the requesterís right to challenge a denial and the procedures for challenging a denial; whether the requester has agreed to grant an extension of time; the toll free number of the Government Records Council; a certification by the requester that he or she has not been convicted of an indictable offense; the custodian to sign and date; and reasons if access is denied. Copies of the form will be available at the Department and on the Department web site.

Proposed new N.J.A.C. 11:1-44.5 establishes the procedure for submitting requests for access to government records. Forms may be hand delivered during normal business hours, mailed or transmitted electronically by facsimile or e-mail to the custodian. Upon receipt of the form, the custodian will review it for clarity and completeness and will advise the requester of any deficiencies or request additional information, provided the requester has included contact information. The requesterís identity will be required in order to insure compliance with the provision of the law that prohibits a person convicted of an indictable offense under the laws of this State, any other state or the United States, from receiving personal information concerning the personís victim or the victimís family. Requests for records will be assigned a tracking number, which will be used to track the request and respond to inquiries. The custodian will estimate the fee, including the cost of any special form of mailing requested. A request shall not be deemed complete until any prepayment required is received by the custodian. A requester will also be required to prepay any special mailing or delivery costs such as UPS or Express Mail. A requester will not be charged for ordinary mailing costs.

Proposed new N.J.A.C. 11:1-44.6 provides that the balance of any fee over and above the estimated prepaid fee is due on delivery of the record.

Proposed new N.J.A.C. 11:1-44.7 specifies the records for which a citizen is ordinarily entitled to immediate access. These documents include budgets, bills, vouchers, contracts and public employee salary and overtime information.

Proposed new N.J.A.C. 11:1-44.8 provides that, except as otherwise provided by law, if the custodian fails to grant access to a government record within seven business days after the custodian receives the completed request or such other time as may be required under the law or may be agreed upon, the failure will be deemed a denial of the request for access. As provided in the statute, a custodian need not respond to an anonymous request until the requester reappears before the custodian.

Proposed new N.J.A.C. 11:1-44.9 provides that if requested records are stored in an offsite storage facility outside of the regular business office of the agency, the custodian will advise the requester of the date the records will be available and the estimated cost within seven business days of receipt of the request form. This section codifies the requirements of the statute.

Proposed new N.J.A.C. 11:1-44.10 codifies the requirements of the statute concerning delivery of records in the medium requested. The custodian will deliver the record in the medium requested unless the agency does not maintain the record in that medium and cannot reasonably convert it. In such a case, the custodian will advise the requester of the cost of providing the record in the medium requested. Such charge may include labor.

Proposed new N.J.A.C. 11:1-44.11 deals with the computation of time. Consistent with statutes, court rules and case law, it provides that in computing the time period for granting access, the day the request is received is not included in the computation, but the last day of the period so computed is to be included. This section also clarifies that a request is not complete until all necessary information is provided by the requester and all applicable fees are paid.

N.J.A.C. 11:1-45 Confidentiality of Records

Proposed new N.J.A.C. 11:1-45 contains a list of records deemed by the Commissioner to be confidential and not subject to public access under the provisions of N.J.S.A. 47:1A-1 et seq. as amended and supplemented. This subchapter is proposed under the authority of N.J.S.A.47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963). Under authority of the statute, that Executive Order authorized the head or principal executive of each principal department of State government to adopt and promulgate regulations setting forth which records of the department shall not be deemed public records. The regulations apply to all divisions within the department as well as those assigned or allocated to the department, commonly known as in, but not of, agencies.

Proposed new N.J.A.C. 11:1-45.1 describes the scope and applicability of the subchapter.

Proposed new N.J.A.C. 11:1-45.2 sets forth those records of the Department that are not deemed government records for the purposes of N.J.S.A. 47:1A-1 et seq. as amended and supplemented and establishes the responsibility for access to records of the Department held by the Office of Information Technology (OIT), the State Records Center of the Division of Archives and Records Management (DARM) of the Department of State, or in an offsite storage facility outside of the regular business office of the agency, and furthermore, institutes legal custody of, and responsibility for access to, records of the Department transferred to the State Archives.

The documents listed herein as confidential contain: personal information in which the filer has a legitimate privacy interest (such as in the case of complaint files, an individualís name, address, phone number, policy numbers, account numbers, specific fact situation related to their personal business); proprietary commercial or financial information filed by a financial institution, an insurer, or other entity regulated by the Department; information which, if disclosed, would give an advantage to competitors or bidders; or deliberative, consultative or advisory inter-agency or intra-agency material. This information includes, but is not limited to, pricing assumptions related to life, health, credit, or mortgage guaranty insurance; various special reports required to be filed by insurers, such as tier rating reports and reports on basic and standard private passenger automobile insurance coverage; and financial reports filed by self-insured entities and risk assessment reports on self-insured entities. These documents are not public pursuant to the "Right-to-Know" law, as amended. The Department utilizes this information as part of its review of its licensees and in fulfilling its regulatory functions regarding such licensees.

The text of N.J.A.C. 11:1-1.2 is repealed and replaced with new text at N.J.A.C. 11:1-44 to reflect the procedure for requesting documents from the custodian of the records. N.J.A.C. 11:5-1.4 is also proposed for repeal and a cross reference to proposed N.J.A.C. 11:1-44 is proposed to be added to N.J.A.C. 11:5-1.5, as well as to N.J.A.C. 3:3-2.1, regarding such requests. In addition, the current process for requesting documents related to the Commission is proposed deleted from N.J.A.C. 11:5-1.5 and replaced with the process in proposed N.J.A.C. 11:1-44.

Because a 60-day comment period has been provided on this notice of proposal, this notice is excepted from the rulemaking calendar requirement of N.J.A.C. 1:30-3.3(a)5.

Social Impact

The proposed new rules, amendments and repeals implement the requirements of N.J.S.A. 47:1A-1 et seq. as amended and supplemented by P.L. 2001, c. 404. The proposed new rules will have a positive social impact by establishing a procedure for public access to government records held or controlled by the Department, IHC, SEH, and the Commission. The law requires that government records be readily accessible for inspection, copying or examination by citizens of this State unless exempt by law or regulation, but also calls upon a public agency to safeguard from public access a citizenís personal information with which it has been entrusted when disclosure would violate the citizenís reasonable expectation of privacy. These proposed new rules, amendments and repeal attempt to balance the competing policies in the statute and to exclude records where it would not be in the public interest to permit indiscriminate disclosure or copying of certain records. The proposed new rules also provide safeguards to protect the types of records set forth in the Summary above for the reasons set forth therein.

Economic Impact

The proposed new rules. amendments and repeals will not have an economic impact on the public in excess of that provided by the statute. Persons requesting copies of government records will be required to pay the fees authorized by the statute for copies of records. The proposed rules do not impose any additional costs. The cost incurred will depend on the type and volume of records requested and the medium of delivery.

The Department, IHC, SEH and the Commission, however, will incur costs in processing requests for access to government records in the time set by the Act.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rules, amendments and repeals are not subject to any Federal standards. The Federal Freedom of Information Act, 5 U.S.C. ßß 550a et seq., does not apply to records of State government and does not constitute a Federal standard.

Jobs Impact

The proposed new rules, amendments and repeals will not have an impact on the number of jobs generated or lost in the private sector in New Jersey. They may, however, require public agencies in this State to increase the number of employees designated to respond to requests for public access.

Agriculture Industry Impact

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

 

Regulatory Flexibility Analysis

The proposed new rules, amendments and repeals do not impose reporting or recordkeeping requirements on small businesses, as defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. The proposed new rules impose compliance requirements on all persons seeking access to government records pursuant to N.J.S.A. 47:1A-1 et seq. as amended and supplemented. All persons, including small businesses, will be required to submit requests for access to government records on a form approved by the Department. The statute requires the custodian of records to adopt a form for access to records. The statute authorizes fees for copies of government records. There is no exception for small businesses. The cost depends on the number of copies requested. The proposed new rules provide that the fee will be the maximum set forth in the statute or a fee authorized by the statute that does not exceed the actual cost of providing the record. The cost to the Department of providing the record does not depend on whether the requester is a small business.

Smart Growth Impact

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

Full text of the proposed repeals may be found at N.J.A.C. 11:1-1.2 and 11:5-1.4.

Full text of the proposed new rules and amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

3:3-2.1 [Nonpublic records] Records designated confidential

(a) [Throughout the Department of Banking and Insurance, the following shall not be deemed to be public records pursuant to N.J.S.A. 47:1A-1 et. seq.] In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., as amended and supplemented, any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented:

1. Documents obtained or prepared incident to an examination or audit of a financial institution or licensee, its holding [institution] company or its subsidiary and any examination or audit report;

2. Business plans [and incorporators'], financial statements and criminal history record checks filed in connection with a charter, conversion, [or] license or other application, and all materials the Department receives or prepares incident to an application by a financial institution or other person to make [a leeway or other] an investment or acquisition;

3. [Complaint] Investigative or complaint files [maintained by the Department] in any matter pending investigation or in any completed matter in which no formal disciplinary action was taken;

[4. Memoranda or other correspondence between the Department and the Office of the Attorney General, and all memoranda within the Department concerning advice given by the Office of the Attorney General;

5. Documents obtained pursuant to an investigation by the Department of a financial institution or other person, when disclosure would be inimical to the public interest;]

[6.] 4. Memoranda of understanding, letters of understanding and agreement between the Department and a financial institution, and board resolutions of a financial institution having a supervisory purpose;

[7.] 5. Information regarding individual institutions or licensees obtained pursuant to surveys conducted by the Department;

[8. Personnel or pension records of an individual employed by the Department, except the following, shall be deemed public records:

i. An individual's name, title, position, salary, payroll record, length of service in the Department and in the government, date of separation from government service and the reason therefor, and the amount and type of pension he or she is receiving; and

ii. Data contained in information which discloses conformity with specific experimental, educational or medical qualifications required for government employment or for receipt of a public pension, but in no event shall detailed medical or psychological information be released; and]

[9.] 6. Personnel or pension records of an employee, officer, director or other person affiliated with a financial institution or a Departmental advisory board, such as residence address, residence telephone number, salary or social security number, when such information is contained in any report, filing or record held by the Department;

7. Reports, surveys, information or applications to the extent they contain trade secrets, proprietary commercial or financial information obtained from any source, or information which, if disclosed, would give an advantage to competitors or bidders;

8. Correspondence between the Department and a regulated entity, out-of-State agency or individual to the extent that it contains information confidential pursuant to law;

9. Reports, information, documents and data received from other jurisdictions or associations of regulators which is otherwise confidential pursuant to law or required to be kept confidential as a condition for receipt of such information;

10. Information concerning individuals as follows:

i. Information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation;

ii. Home addresses, home telephone numbers, personal e-mail addresses or other personal contact information;

iii. Information in an income or other tax return; and

iv. Information describing a natural personís finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness, except as otherwise required by law to be disclosed;

11. Test questions, scoring keys and other examination data pertaining to the administration of an examination or an application for public employment or licensing;

12. Records of another department or agency allocated to that department in the possession of this Department when those records are made confidential by a regulation of that department or agency allocated to that department adopted pursuant to N.J.S.A. 47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), or pursuant to another law authorizing the department or agency to make records confidential or exempt from disclosure; and

13. Records of this Department held by the Office of Information Technology (OIT), the State Records Storage Center of the Division of Archives and Record Management (DARM), in the Department of State, or an offsite storage facility outside of the regular business office of the Department. Such records shall remain the legal property of this Department and be accessible for inspection or copying only through a request to the custodian of this Department. In the event that records of this Department have been or shall be transferred to and accessioned by the State Archives in the Division of Archives and Records Management, all such records shall become the legal property of the State Archives, and requests for access to them shall be submitted directly to the State Archives.

(b) The fact that a document is not listed in (a) above shall not be construed as evidence that the document is a public record for purposes of N.J.S.A. 47:1A-1 et seq.

(c) Nothing in this section shall compel the Department to maintain records beyond normal retirement or destruction schedules as approved pursuant to law.

(d) All requests made pursuant to N.J.S.A. 47:1A-1 et seq. (the "Right to Know" law) shall be made in accordance with N.J.A.C. 11:1-44.

3:3-2.2 Definitions

The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.

. . .

"Financial institution" means a State or Federally chartered bank, savings bank, savings and loan association or credit union.

"Licensee" means any person who is licensed or registered by the Division of Banking, or who should be so licensed or registered.

. . .

SUBCHAPTER 44. GOVERNMENT RECORDS

11:1-44.1 Scope and applicability

(a) The rules in this subchapter apply to the Department of Banking and Insurance and all divisions and agencies in the Department, including those agencies allocated to the Department to satisfy the requirements of Article V, Section 4, Paragraph 1 of the New Jersey Constitution, commonly known as "in but not of" agencies.

(b) The custodian for the Department does not have custody or control of records of the following entities:

1. The New Jersey Insurance Underwriting Association established pursuant to N.J.S.A. 17:37A-1 et seq.;

2. The New Jersey Property-Liability Insurance Guaranty Association established pursuant to N.J.S.A. 17:30A-1 et seq.;

3. The New Jersey Life and Health Insurance Guaranty Association established pursuant to N.J.S.A. 17B:32A-1 et seq.;

4. The New Jersey Surplus Lines Insurance Guaranty Fund established pursuant to N.J.S.A. 17:22-6.70 et seq.;

5. The New Jersey Insolvent Health Maintenance Organization Assistance Association established pursuant to N.J.S.A. 17B:32B-1 et seq.;

6. The New Jersey Self-Insurers Guaranty Association established pursuant to N.J.S.A. 34:15-120.15 et seq.;

7. The Compensation Rating and Inspection Bureau established pursuant to N.J.S.A. 34:15-89 et seq.;

8. The New Jersey Automobile Insurance Risk Exchange established pursuant to N.J.S.A. 39:6A-21 et seq.;

9. The New Jersey Medical Malpractice Reinsurance Association established pursuant to N.J.S.A. 17:30D-1 et seq.; and,

10. The New Jersey Automobile Full Insurance Underwriting Association established pursuant to N.J.S.A. 17:30E-1 et seq., and the Market Transition Facility, established pursuant to N.J.S.A. 17:33B-11.

11:1-44.2 Definitions

The following words and terms, as used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Access" means inspection, examination, or copying pursuant to N.J.S.A. 47:1A-1 et seq..

"Commission" means the New Jersey Real Estate Commission.

"Commissioner" means the Commissioner of the Department of Banking and Insurance.

"Custodian" means the custodian of government records officially designated by formal action of the Commissioner as such.

"Department" means the Department of Banking and Insurance.

"IHC Board" means the Individual Health Coverage Program Board.

''Requester" means the person or entity requesting access to government record(s).

"SEH Board" means the Small Employers Health Benefits Program Board.

11:1-44.3 Custodian of records

(a) Pursuant to P.L. 2001, c. 404, the Commissioner shall designate a custodian of records for the Department of Banking and Insurance, who shall be responsible for requests for access to government records of the Department.

(b) The address and other contact information for the custodian of records shall be posted on the Department of Banking and Insurance web site www.njdobi.org and otherwise made available to the public. The contact information is as follows:

Custodian of Records

New Jersey Department of Banking and Insurance

20 West State Street

P.O. Box 325

Trenton, NJ 08625-0325

11:1-44.4 Requests for government records

(a) All requests for access to government records pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented, held or controlled by the Department of Banking and Insurance shall be in writing on a form approved by the Department. For the purposes of this subchapter, access means inspection, examination or copying.

(b) The requester shall be requested to provide the following information on the form:

1. The name, address, and telephone number of the requester;

2. A description of the government record sought, method of access and if copies are sought, the medium requested and mode of delivery; and

3. The date submitted to the custodian.

(c) The request form shall also include an identified space for:

1. The custodian to indicate whether the request is granted or denied;

2. Specific directions and procedures for requesting a record;

3. A statement that prepayment of fees is required and the fees to be charged;

4. The time period within which the public agency is required to make the record available;

5. The custodian to sign and date the form;

6. A statement of the requester's right to challenge a decision by the custodian to deny access;

7. The reasons for a denial of a request, in whole or in part;

8. The procedures for challenging a denial of access;

9. The custodian to indicate whether the requester has agreed to grant an extension of time;

10. A certification by the requester that he or she has not been convicted of an indictable offense under the laws of this State, any other state or the United States; and

11. The toll free number of the Government Records Council.

(d) Copies of the request form shall be available at the Department and on the Department web site.

11:1-44.5 Procedures for requests

(a) Request forms shall be hand-delivered during normal business hours, mailed, or transmitted electronically by facsimile, e-mail or web site access by the requester to the custodian of records.

(b) Any officer or employee of the Department, IHC Board, SEH Board, or Commission who receives a request for access to a government record shall direct the requester to the custodian of records.

(c) Upon receipt of the request form, the custodian shall review the request form for clarity and completeness. If the request form is unclear as to the government record requested, the custodian shall advise the requester of the deficiency, provided contact information is included on the form. The custodian may require the requester to provide additional information to identify the record or to ascertain the requesterís identity and status to determine whether access is authorized. The custodian shall deny a request for access if the request is unclear or incomplete after attempting to reach a reasonable resolution with the requester. A request shall not be deemed complete until the pre-payment required under this section is received by the custodian.

(d) All inquiries and processes involving the request shall include a tracking number.

(e) Upon receipt of a request form, the custodian shall estimate the cost of providing the records and shall require the pre-payment of the estimated sum, and of any special mailing or delivery costs. Payment shall be made by cash, check or money order payable to the State of New Jersey. Except as provided otherwise by law or regulation, costs shall be those set forth in N.J.S.A. 47:1A-1 et seq., as amended and supplemented.

(f) The custodian shall sign and date the request form, enter the estimated fee and tracking number, and provide the requester with a copy.

(g) No fee shall be charged for inspecting or examining government records.

(h) Upon request, a custodian may allow requesters to use their own photocopying equipment to copy public records, provided that it will not disrupt the business operations of the custodian and will not endanger the public records. No special fee for copying shall be charged to a requester who utilizes its own equipment.

11:1-44.6 Delivery of records

The custodian shall notify the requester when the records are available and shall collect any additional fees and charges due prior to delivery of copies.

11:1-44.7 Immediate access to certain records

Immediate access ordinarily shall be granted for requests to inspect, examine or copy budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.

11:1-44.8 Failure to respond

Except as provided in this subchapter, the custodian shall grant or deny access within seven business days after receiving a request completed in accordance with N.J.A.C. 11:1-44.5 or such additional time as may be allowed by law or these rules or as may be agreed to by the requester. The failure to grant access shall be deemed a denial of the request, unless the requester has elected not to provide a name, address, telephone number or other means of contact. If the requester has elected not to provide contact information, the custodian shall not be required to respond until seven business days after the requester reappears before the custodian seeking a response to the original request.

11:1-44.9 Records stored offsite

If the requested record is in storage offsite at a facility outside of the regular business office of the agency, the custodian shall so advise the requester within seven business days after the custodian receives the request. The custodian shall advise the requester of the date when the record will be made available. If the record is not made available by the identified date, the request shall be deemed denied.

11:1-44.10 Requests for copies of a government record in a specified medium

(a) Unless otherwise specifically requested, copies of records shall be provided in printed form on ordinary business size paper. The requester may request that the agency provide a copy of a record in a specific medium. If the agency maintains the government record in the medium requested, the custodian shall provide the record in the medium sought.

(b) If the agency does not maintain the government record in the medium requested, the custodian shall convert the record to the medium requested if reasonable or provide a copy in some other meaningful medium. If a requester asks for copies of a record in a medium not routinely used by the agency, not routinely developed or maintained by the agency, or requiring a substantial amount of manipulation or programming of information technology, the custodian may charge, in addition to the actual cost of duplication, a special charge which shall be reasonable and shall be based upon the cost of any extensive use of information technology or for the labor cost of providing the service actually incurred. The requester shall be given the opportunity to review and object to the charge prior to its being incurred. If the requester objects to the charge and refuses to withdraw the request, the custodian may deny the request after attempting to reach a reasonable solution that accommodates the interests of the requester and the agency.

(c) Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined or copied is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the division or agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies. The requester shall have the opportunity to review and object to the charge prior to its being incurred. If the requester objects to the charge and refuses to withdraw the request, the custodian may deny the request after attempting to reach a reasonable solution that accommodates the interests of the requester and the agency.

11:1-44.11 Computation of time

(a) In computing any period of time under P.L.2001, c. 404 or these rules, the business day a completed request for access is received is not to be included. The last business day of the period so computed is to be included.

(b) For purposes of P.L. 2001, c. 404 and these rules, a request for access is deemed to be complete when the requester provides the information required by N.J.A.C. 11:1-44.3 and pre-pays the fees required by P.L. 2001, c. 404 and these rules.

SUBCHAPTER 45. CONFIDENTIALITY OF RECORDS

11:1-45.1 Scope and applicability

The rules in this subchapter apply to the Department of Banking and Insurance and all divisions and agencies in the Department, including those agencies allocated to the Department to satisfy the requirements of Article V, Section 4, Paragraph 1 of the New Jersey Constitution, commonly known as "in but not of" agencies.

11:1-45.2 Records designated confidential

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., as amended and supplemented, any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented:

1. Reports, surveys, information, or data to the extent they contain trade secrets, proprietary commercial or financial information obtained from any source, or information which, if disclosed, would give an advantage to competitors or bidders;

2. Actuarial memoranda, reports and analyses submitted to or utilized by the Department;

3. Any memoranda, reports or analyses which discuss data or specific formulas and methodology used in the determination or analysis of reserves, values, benefits, dividends, rates or loss ratio for a product;

4. Correspondence between the Department and a regulated entity, out-of-State agency or individual to the extent that it contains information confidential pursuant to law;

5. Plans of operation discussing the structure, investment objectives, investment guidelines or valuation of a separate account of an insurer;

6. Applications for certificates of authority, certificates of eligibility, licenses, or any other authorizations pending before the Department, or withdrawn by the applicant, or the following information contained in such applications on which formal action by the Department has been taken:

i. Business plans;

ii. Financial projections;

iii. Feasibility studies;

iv. Criminal history record checks;

v. Quarterly financial statements; and

vi. Confidential data received from the National Association of Insurance Commissioners ;

7. Investigative or complaint files in any matter pending investigation, or in any completed matter in which no formal disciplinary action was taken;

8. Financial Examinations Monitoring System reports;

9. Quarterly tax returns filed by surplus lines agents and direct procurement tax returns; and tax returns, including retaliatory tax returns, filed by insurers;

10. Information in Windstorm Market Assistance Program survey reports related to individual marketshare of specific insurers in individual zip codes;

11. Risk retention group or purchasing group membership lists;

12. Information concerning individuals as follows:

i. Information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation;

ii. Home addresses, home telephone numbers, personal e-mail addresses or other personal contact information;

iii. Information in an income or other tax return; and

iv. Information describing a natural personís finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness, except as otherwise required by law to be disclosed;

13. Test questions, scoring keys and other examination data pertaining to the administration of an examination or an application for public employment or licensing;

14. Records of another department or agency allocated to that department in the possession of this Department when those records are made confidential by a regulation of that department or agency allocated to that department adopted pursuant to N.J.S.A. 47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), or pursuant to another law authorizing the department or agency to make records confidential or exempt from disclosure; and

15. Records of this Department held by the Office of Information Technology (OIT), the State Records Storage Center of the Division of Archives and Records Management (DARM), in the Department of State, or an offsite storage facility outside of the regular business office of the Department. Such records shall remain the legal property of this Department and be accessible for inspection or copying only through a request to the custodian of the Department. In the event that records of this Department have been or shall be transferred to and accessioned by the State Archives in the Division of Archives and Records Management, all such records shall become the legal property of the State Archives, and requests for access to them shall be submitted directly to the State Archives.

(b) The fact that a document is not listed in (a) above shall not be construed as evidence that the document is a public record for purposes of N.J.S.A. 47:1A-1 et seq.

(c) Nothing in this section shall compel the Department to maintain records beyond normal retirement or destruction schedules as approved pursuant to law.

11:5-1.5 [Commission reports open to public inspection; investigative files not open to public] Records designated confidential

[(a) The New Jersey Real Estate Commission makes, maintains and keeps records as listed in (b) through (g) below.

(b) Current and computerized public licensing records are available at the Commission's office for inspection and copying during normal business hours upon sufficient notice to the Commission staff. The Commission staff may require several weeks notice to locate records other than computerized records. Except as otherwise noted in this section, records are maintained for a minimum of three years. Older records may be unavailable. Copies of records can be purchased from the Commission at the fees established in the Right to Know Law, N.J.S.A. 47:1A-2.

(c) Requests for certified copies of the Commission's public licensing records (or for a certificate of the absence of a public record) shall be submitted in writing and must specify which records are requested and the time period covered by the request. The Commission staff requires at least 10 working days to provide certified copies of public records.

(d) The following records are maintained pursuant to the Real Estate Licensing Act:

1. Certifications of license history and status based upon computerized licensing records;

2. Real estate broker, broker-salesperson, salesperson, school and instructor license applications, and materials submitted therewith to obtain, transfer, reinstate or renew such licenses, and the final disposition of such applications. However, criminal history information obtained by the Commission pursuant to N.J.A.C. 11:5-3.3 and personal data on a licensee such as home address, home telephone number and date of birth are considered confidential;

3. Real Estate Commission meeting minutes;

4. Orders to Show Cause and complaints issued by the Attorney General's office charging that a licensee or an unlicensed person has violated provisions of the Real Estate License Act or the Commission's administrative rules; documents accepted into the agency record in any such proceeding; and the final disposition of such proceedings including settlements; and

5. Notices, proposals and other records concerning rulemaking required to be kept or distributed to the public by the Commission pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and N.J.A.C. 1:30-3 and 4 et seq. Complete records of unadopted proposals are available for one year after publication of the proposal. Complete records of adopted rules are available for three years after each rule's effective date.

(e) The following records are maintained by the Bureau of Subdivided Land Sales Control, pursuant to the Real Estate Full Disclosure Act, N.J.S.A. 45:15-16.27 et seq.:

1. Statements of record and additions or corrections thereto filed with the Bureau pursuant to N.J.S.A. 45:15-16.33, 16.36, 16.39 and 16.41(a);

2. Annual reports submitted by a subdivider pursuant to N.J.S.A. 45:15- 16.40;

3. Public offering statements and amended public offering statements prepared pursuant to N.J.S.A. 45:15-16.38;

4. Orders to Show Cause and other pleadings charging violations of N.J.S.A. 45:15-16.27 et seq. and the final disposition of such orders, including Orders to Cease and Desist and/or imposing penalties or sanctions; documents accepted into the agency record in any such proceedings; and

5. Applications for exemption of a subdivision filed with the Bureau pursuant to N.J.S.A. 45:15-16.32(c) and N.J.A.C. 11:5-9.18 and the final disposition of any such exemption application.

(f) The following records are maintained pursuant to the Real Estate Guaranty Fund Act, N.J.S.A. 45:15-34 et seq.:

1. Court orders for payment from the Real Estate Guaranty Fund; and

2. Pleadings served upon the Commissioner of Insurance or any duly authorized agent or employee of the Department of Insurance pursuant to N.J.S.A. 45:15-39.

(g) The following licensee records are nonpublic in accordance with N.J.S.A. 47:1A-1 et. seq.:]

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., as amended and supplemented, any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented:

1. - 6. (No change.)

7. Personal data on a licensee, such as home address, home telephone number and date of birth; [and]

8. The Social Security numbers of any applicants or licensees which were submitted to the Commission on a license application or otherwise obtained by the Commission[.];

9. Lists of New Jersey customers provided by registrants to the Bureau of Subdivided Land Sales Control under the Real Estate Sales Full Disclosure Act, N.J.S.A. 45:15-16.27 et seq.;

10. Reports, surveys, information, or data to the extent they contain trade secrets, proprietary commercial or financial information obtained from any source, or information which, if disclosed, would give an advantage to competitors or bidders;

11. Correspondence between the Commission and a licensee, out-of-State agency or individual to the extent that it contains information confidential pursuant to law;

12. Franchise or licensing agreements;

13. Information concerning individuals as follows:

i. Information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation;

ii. Home addresses, home telephone numbers, personal e-mail addresses or other personal contact information;

iii. Information in an income or other tax return; and

iv. Information describing a natural personís finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness, except as otherwise required by law to be disclosed;

14. Test questions, scoring keys and other examination data pertaining to the administration of an examination or an application for public employment or licensing;

15. Records of another department or agency allocated to that department in the possession of the Commission when those records are made confidential by a regulation of that department or agency allocated to that department adopted pursuant to N.J.S.A. 47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), or pursuant to another law authorizing the department or agency to make records confidential or exempt from disclosure; and

16. Records of the Commission held by the Office of Information Technology (OIT), the State Records Storage Center of the Division of Archives and Record Management (DARM), in the Department of State, or an offsite storage facility outside of the regular business office of the Commission. Such records shall remain the legal property of the Commission and be accessible for inspection or copying only through a request to the custodian of the Department. In the event that records of the Commission have been or shall be transferred to and accessioned by the State Archives in the Division of Archives and Records Management, all such records shall become the legal property of the State Archives, and requests for access to them shall be submitted directly to the State Archives.

(b) The fact that a document is not listed in (a) above shall not be construed as evidence that the document is a public record for purposes of N.J.S.A. 47:1A-1 et seq.

(c) Nothing in this section shall compel the Commission to maintain records beyond normal retirement or destruction schedules as approved pursuant to law.

(d) All requests made pursuant to N.J.S.A. 47:1A-1 et seq. (the "Right to Know" law) shall be made in accordance with N.J.A.C. 11:1-44.

CHAPTER 20

INDIVIDUAL HEALTH COVERAGE PROGRAM

SUBCHAPTER 21. RECORDS DESIGNATED CONFIDENTIAL

11:20-21.1 Records designated confidential

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., as amended and supplemented, any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented:

1. Reports, surveys, information, or data to the extent they contain trade secrets, proprietary commercial or financial information obtained from any source, or information which, if disclosed, would give an advantage to competitors or bidders;

2. Correspondence between the Board and a regulated entity, out-of-State agency or individual to the extent that it contains information confidential pursuant to law;

3. Performance report filings pursuant to N.J.A.C. 11:20-10.3;

4. Actuarial memoranda and producer commission rates set forth in rate filings;

5. Producer commission rates set forth in Good Faith Marketing filings;

6. Investigative or complaint files in any matter pending investigation, or in any completed matter in which no formal disciplinary action was taken;

7. Information concerning individuals as follows:

i. Information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation;

ii. Home addresses, home telephone numbers, personal e-mail addresses or other personal contact information;

iii. Information in an income or other tax return; and

iv. Information describing a natural personís finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness, except as otherwise required by law to be disclosed;

8. Test questions, scoring keys and other examination data pertaining to the administration of an examination or an application for public employment or licensing;

9. Records of another department or agency allocated to that department in the possession of the Board when those records are made confidential by a regulation of that department or agency allocated to that department adopted pursuant to N.J.S.A. 47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), or pursuant to another law authorizing the department or agency to make records confidential or exempt from disclosure; and

10. Records of the Board held by the Office of Information Technology (OIT), the State Records Storage Center of the Division of Archives and Record Management (DARM), in the Department of State, or an offsite storage facility outside of the regular business office of the Board. Such records shall remain the legal property of the Board and be accessible for inspection or copying only through a request to the custodian of the Department. In the event that records of the Board have been or shall be transferred to and accessioned by the State Archives in the Division of Archives and Records Management, all such records shall become the legal property of the State Archives, and requests for access to them shall be submitted directly to the State Archives.

(b) The fact that a document is not listed in (a) above shall not be construed as evidence that the document is a public record for purposes of N.J.S.A. 47:1A-1 et seq.

(c) Nothing in this section shall compel the Board to maintain records beyond normal retirement or destruction schedules as approved pursuant to law.

CHAPTER 21

SMALL EMPLOYER HEALTH BENEFIT PROGRAM

SUBCHAPTER 22. RECORDS DESIGNATED CONFIDENTIAL

11:21-22.1 Records designated confidential

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., as amended and supplemented, any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented:

1. Reports, surveys, information, or data to the extent they contain trade secrets, proprietary commercial or financial information obtained from any source, or information which, if disclosed, would give an advantage to competitors or bidders;

2. Correspondence between the Board and a regulated entity, out-of-State agency or individual to the extent that it contains information confidential pursuant to law;

3. Investigative or complaint files in any matter pending investigation, or in any completed matter in which no formal disciplinary action was taken;

4. Information concerning individuals as follows:

i. Information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation;

ii. Home addresses, home telephone numbers, personal e-mail addresses or other personal contact information;

iii. Information in an income or other tax return; and

iv. Information describing a natural personís finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness, except as otherwise required by law to be disclosed;

5. Test questions, scoring keys and other examination data pertaining to the administration of an examination or an application for public employment or licensing;

6. Records of another department or agency allocated to that department in the possession of the Board when those records are made confidential by a regulation of that department or agency allocated to that department adopted pursuant to N.J.S.A. 47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), or pursuant to another law authorizing the department or agency to make records confidential or exempt from disclosure; and

7. Records of the Board held by the Office of Information Technology (OIT), the State Records Storage Center of the Division of Archives and Record Management (DARM), in the Department of State, or an offsite storage facility outside of the regular business office of the Board. Such records shall remain the legal property of the Board and be accessible for inspection or copying only through a request to the custodian of the Department. In the event that records of the Board have been or shall be transferred to and accessioned by the State Archives in the Division of Archives and Records Management, all such records shall become the legal property of the State Archives, and requests for access to them shall be submitted directly to the State Archives.

(b) The fact that a document is not listed in (a) above shall not be construed as evidence that the document is a public record for purposes of N.J.S.A. 47:1A-1 et seq.

(c) Nothing in this section shall compel the Board to maintain records beyond normal retirement or destruction schedules as approved pursuant to law