34:5A-15. Trade secret claim

a. If an employer believes that disclosing information required by this act will reveal a trade secret, he may file with the appropriate department a trade secret claim as herein provided. As used in this section, "department" means either the Department of Health or Department of Environmental Protection, as the case may be.

b. If an employer claims that disclosing information on either the workplace survey or the environmental survey would reveal a trade secret, he shall file with the appropriate department a trade secret claim within 90 days of receipt of the survey. An employer making a trade secret claim shall submit two copies of the survey to the department, one with the information for which a trade secret claim is being made concealed, and one in an envelope marked "Confidential" containing the information for which a trade secret claim is being made, which the department, during the pendency of the trade secret claim, shall keep in a locked file or room. On the copies of the survey sent to the county health department, local fire department, and local police department, and retained on file at the facility, the employer shall conceal the information for which he is making a trade secret claim.

c. If an employer claims that labeling a container pursuant to the provisions of section 14 of this act would reveal a trade secret, he shall file a trade secret claim with the Department of Health. Upon receipt of the trade secret claim, the department shall assign a trade secret registry number to the claim, and transmit the trade secret registry number to the employer. Upon receipt of the trade secret registry number, the employer shall affix the trade secret registry number to each container containing a substance for which the trade secret claim was made.

d. The department shall act to make a determination on the validity of a trade secret claim when a request is made pursuant to the provisions of this act for the disclosure of the information for which the trade secret claim was made, or at any time that the department deems appropriate. Upon making a determination on the validity of a trade secret claim, the department shall inform the employer of the determination by certified mail. If the department determines that the employer's trade secret claim is not valid, the employer shall have 45 days from the receipt of the department's determination to file with the department a written request for an administrative hearing on the determination. If the employer does not file such a request within 45 days, the department shall take action to provide that the information for which the trade secret claim was made be disclosed pursuant to the provisions of this act. If an employer requests an administrative hearing pursuant to the provisions of this subsection, the department shall refer the matter to the Office of Administrative Law, for a hearing thereon. At the hearing the employer shall have the burden to show that the trade secret claim is valid. Within 45 days of receipt of the administrative law judge's recommendation, the department shall affirm, reject, or modify the recommendation. The department's action shall be considered the final agency action for the purposes of the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), and shall be subject only to judicial review as provided in the Rules of Court. The department shall inform the employer of its decision on the administrative law judge's recommendation by certified mail. If the department determines that the trade secret claim is not valid, the employer shall have 45 days to notify the department in writing that he has filed to appeal the department's decision in the courts. If the employer does not so notify the department, the department shall take action to provide that the information for which the trade secret claim was made be disclosed pursuant to the provisions of this act.

e. The department shall provide any information for which a trade secret claim is pending or has been approved pursuant to this section to a physician or osteopath when such information is needed for medical diagnosis or treatment. The department shall require the physician or osteopath to sign an agreement protecting the confidentiality of information disclosed pursuant to this subsection.

f. Any workplace survey or environmental survey containing information for which a trade secret claim is pending or has been approved shall be made available to the public with that information concealed.

g. The subject of any trade secret claim pending or approved shall be treated as confidential information. Except as provided in subsection e. of this section, the department shall not disclose any confidential information to any person except an officer or employee of the State in connection with the official duties of the officer or employee under any law for the protection of public health, or to the contractors of the State and their employees if in the opinion of the department the disclosure is necessary for the completion of any work contracted for in connection with the implementation of this act. Any officer or employee of the State, contractor of the State, physician or osteopath, or employee of a county health department, local fire department, or local police department who has access to any confidential information, and who willingly and knowingly discloses the confidential information to any person not authorized to receive it, is guilty of a crime of the third degree.

h. The provisions of this section shall not apply to the disclosure of information concerning emissions, and shall not apply to the disclosure of any information required pursuant to any other act.

i. The Department of Health and the Department of Environmental Protection shall jointly adopt rules and regulations to implement the provisions of this section.

L.1983, c. 315, s. 15, eff. Aug. 29, 1984.