Facial Unconstitutionality of Categorical Confidentiality Rules: Case-by-Case Disclosure of Medical/Psychological Records in New Jersey Parole Proceedings

Facial Unconstitutionality of Categorical Confidentiality Rules: Case-by-Case Disclosure of Medical/Psychological Records in New Jersey Parole Proceedings

I. Introduction

This Supreme Court of New Jersey decision arises from a rulemaking dispute between the New Jersey Office of the Public Defender (OPD) and the New Jersey State Parole Board. The OPD petitioned the Board to amend N.J.A.C. 10A:71-2.2 (“Rule 2.2”) so that people seeking parole could access psychological reports and other medical records that the Board relies on when making release decisions.

The OPD argued that the current text of Rule 2.2 imposes a per se bar on disclosure of medical, psychiatric, and psychological records, departing from due process protections recognized in Thompson v. State Parole Bd., 210 N.J. Super. 107 (App. Div. 1986). The Parole Board denied the petition, asserting that its actual practices are constitutionally compliant and that related Department of Corrections (DOC) rules and appellate review mechanisms sufficiently protect due process. The Appellate Division affirmed, largely citing the limited evidentiary record on day-to-day disclosure practices.

The Supreme Court granted certification limited to whether Rule 2.2 should be amended and whether, as written, it satisfies constitutional due process in parole proceedings.

II. Summary of the Opinion

The Court (Rabner, C.J., unanimous) held that while there are legitimate reasons to withhold certain documents in particular cases (institutional security, safety, rehabilitation concerns), the plain language of Rule 2.2 categorically bars disclosure of all medical, psychiatric, and psychological records by deeming them confidential. That categorical bar conflicts with the “limited right” to disclosure in parole proceedings established by Thompson v. State Parole Bd., which requires individualized determinations.

The Court rejected the Board’s reliance on (1) DOC regulations, (2) after-the-fact appellate review and court orders, and (3) “practice-based” assurances. A rule that is unconstitutional on its face cannot be preserved by claims that it is administered more flexibly than its text allows. The Court therefore reversed and remanded for the Board to propose and adopt a new regulation through rulemaking. During and after that process, the Court emphasized, Thompson remains controlling.

III. Analysis

A. Precedents Cited

1. Thompson v. State Parole Bd., 210 N.J. Super. 107 (App. Div. 1986)

Thompson is the centerpiece. It recognized an inmate’s “limited right to disclosure of prison records in parole proceedings” while accepting that confidentiality can be necessary in the prison context. Critically, Thompson rejected any policy that “flatly prohibit[ed] prisoner access to parole files” and required a mechanism for case-by-case withholding decisions, including documentation of confidentiality determinations and the role confidential material played in an adverse parole decision (to enable meaningful appellate review).

The Supreme Court treated Thompson’s framework as settled due process law in New Jersey parole administration. The Court’s key move was textual: Rule 2.2’s current wording eliminates the individualized approach Thompson demanded.

2. Vitek v. Jones, 445 U.S. 480 (1980) and Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979)

These U.S. Supreme Court decisions supply the federal constitutional baseline: there is no inherent constitutional right to parole, but where state law creates a “sufficient expectancy of parole”, due process protections attach to parole decisionmaking. The New Jersey Supreme Court used them (as Thompson and Byrne did) to ground why process protections—including some disclosure—are constitutionally relevant once the state’s parole framework creates a liberty interest.

3. State Parole Bd. v. Byrne, 93 N.J. 192 (1983)

Byrne is New Jersey’s foundational case recognizing that the Parole Act triggers “some measure of constitutional protection with respect to parole [eligibility] decisions.” Byrne also supplies two ideas used here: (1) due process is flexible and context-dependent, and (2) parole proceedings do not generally include a right to counsel. The latter point matters because the Board’s reliance on protective agreements (usable by attorneys) may not help most parole applicants who proceed without counsel.

4. In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. 531 (1990)

This case provides the ordinary administrative-law standard: denial of a rulemaking petition is typically reviewed for whether it was arbitrary, capricious, or unreasonable. The Court acknowledged that standard but held that when the dispute is a straightforward constitutional question, deference yields to independent judicial judgment.

5. In re Election L. Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254 (2010) and N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535 (2012)

These cases restate the principle of deference to agency interpretations within the agency’s expertise. The Court cited them to frame the usual posture, then distinguished this case because it turns on constitutional compliance, not technical implementation judgment.

6. In re Ridgefield Park Bd. of Educ., 244 N.J. 1 (2020) and Saccone v. Bd. of Trs., PFRS, 219 N.J. 369 (2014)

These decisions support the Court’s methodological point: constitutional questions are reviewed de novo. That doctrinal move is central to why the Board’s assurances about “practice” could not substitute for a constitutional reading of the regulation’s text.

7. Puchalski v. State Parole Bd., 104 N.J. Super. 294 (App. Div. 1969)

Cited for the continuing proposition that parole hearings do not entail a general right to counsel. The Court used it to underscore why disclosure mechanisms that function mainly through attorneys (e.g., protective agreements) may be inadequate as a systemic safeguard.

B. Legal Reasoning

1. The Court’s textual diagnosis: subsection (a) defeats subsection (c)

The Court read Rule 2.2 as an internal contradiction that resolves against disclosure:

  • N.J.A.C. 10A:71-2.2(a)(1) deems confidential “written materials concerning an offender’s medical, psychiatric or psychological history, diagnosis, treatment or evaluation.”
  • N.J.A.C. 10A:71-2.2(c) promises disclosure of adverse material considered at a hearing only if it is not classified as confidential.

Because the rule itself classifies the entire category as confidential, the disclosure promise does not reach those records. That makes the nondisclosure not a discretionary, individualized exception, but a categorical prohibition.

2. Why the categorical prohibition violates due process under Thompson

Thompson permits withholding for concrete reasons (security, safety, rehabilitation), but only through good faith, individualized determinations under standards “no broader than [their] lawful purpose requires.” By treating all medical/psychiatric/psychological records as confidential by definition, Rule 2.2 eliminates the individualized balancing Thompson requires—especially problematic because the Board may rely on these documents to deny parole.

3. Practice-based defenses fail against a facially invalid rule

The Board argued that, “in practice,” it behaves constitutionally, including by using DOC procedures and disclosing when ordered by appellate courts. The Court rejected that approach for a structural reason: regulated parties are entitled to rely on the text of the rule. If the text says records “shall be deemed confidential,” applicants—often without counsel—may stop trying to obtain them. A facially unconstitutional rule cannot survive on assurances of better administration than the rule authorizes.

4. DOC regulations do not cure the Parole Board’s rule

The Court examined the Board’s reliance on N.J.A.C. 10A:22-2.7(d) (DOC rule) and found multiple gaps:

  • No cross-reference: Rule 2.2 does not incorporate DOC standards, and vice versa.
  • Different scope: DOC rules distinguish “routine” mental health records from “evaluative or administrative assessment reports,” the latter requiring court order or protective agreement, which may not match Thompson’s disclosure standard.
  • Completeness uncertainty: parole-specific evaluations may be ordered by the Board (see N.J.A.C. 10A:71-3.7(i)), and it is unclear whether and how those are available via DOC channels.

5. Remedy: reverse and remand for rulemaking; Thompson governs in the interim

Rather than judicially rewriting the regulation, the Court ordered the Board to promulgate a new regulation consistent with due process and the rulemaking process, while confirming that Thompson remains operative during the transition and thereafter.

C. Impact

1. Immediate operational impact on parole administration

The decision pressures the Parole Board to revise Rule 2.2 so it no longer imposes categorical confidentiality for medical/psychiatric/psychological records in parole proceedings. Even before the new rule is adopted, the Court’s reaffirmation that Thompson “remain[s] in place” signals that inmates can demand Thompson-compliant, individualized disclosure decisions now.

2. Strengthening “law on the books” over “law in action”

The Court’s insistence that regulated individuals may rely on regulatory text—rejecting “we do it differently in practice”— is a significant administrative-law message. It encourages agencies to align written rules with actual constitutional requirements, particularly where affected individuals commonly lack counsel and cannot navigate informal exceptions.

3. Likely effects on litigation and appeals

By holding Rule 2.2 unconstitutional on its face, the Court reduces the need for prisoners to litigate “as-applied” disputes one-by-one and makes it harder for the Board to defend nondisclosure merely by claiming security or rehabilitation concerns in the abstract. Future disputes will likely focus on whether an individualized withholding decision is supported by the record and documented in the file, as Thompson requires.

4. Broader implications for confidentiality regimes in corrections

The decision does not deny the legitimacy of confidentiality; it constitutionalizes the method: confidentiality must be justified through a tailored, case-specific assessment when it deprives someone of access to adverse evidence used in a liberty-interest decision. That logic may influence how agencies draft categorical confidentiality provisions beyond parole contexts.

IV. Complex Concepts Simplified

  • “Liberty interest” in parole: You do not have an automatic constitutional right to parole, but if state law creates a real expectation of possible release, due process requires fair procedures when the state decides whether you will be freed.
  • Due process is “flexible”: The required procedures depend on context. In prisons, safety and rehabilitation can justify withholding certain information, but not by blanket rule when individualized review is feasible and constitutionally required.
  • Facial unconstitutionality: A rule is invalid “on its face” when its text necessarily violates the Constitution in all or virtually all of its applications (here, because it categorically blocks disclosure of an entire class of records relevant to parole decisions).
  • Case-by-case review: Instead of declaring a whole category permanently confidential, the agency must examine particular documents and decide whether disclosure would actually create the harms the law recognizes (e.g., threats to safety, security, or rehabilitation).
  • Why “practice” is not enough: People affected by regulations—especially unrepresented inmates—need to be able to read the rule and understand their rights. Constitutional compliance cannot depend on unwritten exceptions or informal habits.

V. Conclusion

The Court reaffirmed a durable principle of New Jersey parole law: under Thompson v. State Parole Bd., parole applicants have a limited but meaningful right to disclosure of records used against them, subject to narrowly tailored confidentiality exceptions determined case-by-case. Because N.J.A.C. 10A:71-2.2 deems all medical, psychiatric, and psychological records confidential and therefore blocks their disclosure even when relied upon to deny parole, the regulation is unconstitutional on its face. The decision’s significance lies both in protecting procedural fairness in parole eligibility determinations and in insisting that agency rules must transparently reflect constitutional requirements—especially in systems where most affected individuals lack counsel.

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