In In the Matter of Petition for Rulemaking to Amend N.J.A.C. 10A:71-3.11 (A-48/49-24/089529) (Decided January 14, 2026), the New Jersey Supreme Court held that failing to disclosure medical, psychiatric and psychological records used to determine a parolee’s eligibility is unconstitutional. Accordingly, the Court directed the State Parole Board to promulgate a new regulation.
Facts of In the Matter of Petition for Rulemaking to Amend N.J.A.C. 10A:71-3.11
The case involved the Office of Public Defender’s (OPD) petition for rulemaking before the Parole Board, in which the OPD proposed changes to N.J.A.C. 10A:71-2.2 (Rule 2.2). It states that “written materials concerning an offender’s medical, psychiatric or psychological history, diagnosis, treatment or evaluation” “shall be deemed confidential,” and that “[i]nmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board or the Department.”
The OPD proposedto allow “individuals seeking parole to access psychological reports and other medical records that the Parole Board relies upon in release decisions.” In support, the OPD submitted that Rule 2.2 restricts an inmate’s access to their mental health records and deviates from the due process requirements set forth in Thompson v. State Parole Board, 210 N.J. Super. 107 (App. Div. 1986).
The Board declined to amend the rule. Among other reasons, the Board contended that, in practice, the agency follows constitutional standards when it decides whether individual requests for records should be granted. The Appellate Division upheld the Board’s determination.
NJ Supreme Court’s Decision in In the Matter of Petition for Rulemaking to Amend N.J.A.C. 10A:71-3.11
The New Jersey Supreme Court reversed. “We recognize there are valid reasons not to disclose records in particular cases to ensure safety and security at correctional institutions and to avoid interfering with an inmate’s rehabilitation, among other concerns,” Chief Justice Stuart Rabner wrote on behalf of the unanimous Court. “But because the plain language of Rule 2.2 bars disclosure in all cases, we find that it violates settled constitutional principles. We therefore reverse and remand the matter to the Parole Board to promulgate a new regulation.”
In reaching its decision, the New Jersey Supreme Court noted that the regulation in effect at the time of Thompson permitted disclosure of inmates’ psychological and mental health records “provided disclosure would not threaten the life or physical safety of any person, interfere with law enforcement proceedings or result in the disclosure of professional diagnostic evaluations which would adversely affect the inmate’s rehabilitation or the future delivery of rehabilitative services.” However, the current regulation, as amended in 2012, does not contain that language. Instead, it treats all medical, psychiatric, and psychological records as confidential. As Chief Justice Rabner explained:
In essence, then, subsection (c)’s promise of disclosure is unwound by subsection (a). Because an inmate or parolee’s medical, psychiatric, and psychological records are “deemed confidential” in subsection (a), they cannot be disclosed under subsection (c). As a result, health records that are adverse to a parole applicant but considered by the Board when it decides whether to grant an applicant parole cannot be revealed to the applicant under the regulation’s plain terms. Rule 2.2 therefore runs contrary to established due process protections.
The New Jersey Supreme Court went on to reject the Parole Board’s arguments for declining to amend the rule. “A rule that is unconstitutional on its face cannot stand based on representations about how it is applied in practice,” Chief Justice Rabner wrote. “It is not possible to know how many inmates and parolees might halt their efforts to obtain mental health records after reading the language of the rule,” he added.
