STEVE RAMSHUR VS. DEPARTMENT OF ENVIRONMENTAL PROTECTION (L-0831-18, MERCER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1527-18T3
STEVE RAMSHUR,
Plaintiff-Respondent,
v.
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, MATTHEW J. COEFER,
Records Custodian in the New Jersey
Department of Environmental Protection,
Defendant,
and
LIBERTY NATIONAL GOLF COURSE,
LLC,1 a New Jersey limited liability
company,
Defendant-Appellant.
___________________________________
Argued December 16, 2019 – Decided February 19, 2020
Before Judges Rothstadt and Mitterhoff.
1
WA Golf Company, LLC was incorrectly designated as Liberty National Golf
Course, LLC.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0831-18.
Nicole Bianca Dory argued the cause for appellant WA
Golf Company, LLC (Connell Foley LLP, attorneys;
Kevin J. Coakley, William Nevins Mc Cann, and
Nicole Bianca Dory, of counsel; Nicole Bianca Dory
and Michael J. Affrunti, on the briefs).
Walter M. Luers argued the cause for respondent.
PER CURIAM
WA Golf Company, LLC (WA Golf), which operates Liberty National
Golf Club (Liberty National), appeals from a July 25, 2018 order compelling it
to disclose to plaintiff Steve Ramshur the bid it submitted in response to a
November 21, 2017 request for proposals (RFP) issued by the New Jersey
Department of Environmental Protection (DEP). WA Golf also appeals from an
October 22, 2018 order awarding plaintiff attorneys' fees.
Plaintiff submitted a request to the DEP under the Open Public Records
Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking access to bids submitted in
response to the RFP. Matthew J. Coefer, a DEP records custodian, denied
plaintiff's request, so plaintiff filed an order to show cause and a verified
complaint against the DEP, Coefer, and Liberty National, seeking to compel
disclosure of Liberty National's bid. On July 25, 2018, after a hearing on the
order to show cause, the judge issued an order compelling Liberty National to
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disclose its bid to plaintiff, after determining that the OPRA exemptions did not
preclude disclosure of the bid and that the common law right to access to public
records also mandated disclosure. The judge awarded plaintiff attorneys' fees,
and the parties agreed to an amount in a consent order dated October 22, 2018.
Liberty National appeals, contending that its bid is protected by various
OPRA exemptions and that plaintiff failed to show that he is entitled to
disclosure under the common law right of access to public records. Having
reviewed the record, and in light of the applicable law, we affirm in part, reverse
in part, and remand for an in camera review to ascertain whether Liberty
National's bid contains information protected by the competitive advantage
exemption, the trade secret and proprietary information exemption, or the
security exemptions.
I.
We discern the following facts from the record. In 1983, the DEP
purchased Caven Point, a twenty-one-and-a-half-acre peninsula with a large
stretch of natural beach along the Hudson River in Liberty State Park. Although
Caven Point is accessible from the park and surrounding neighborhoods, it is
isolated from a large section of the park and largely borders the golf course
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operated by Liberty National. The DEP's purchase of Caven Point was partly
funded by the New Jersey Green Acres Bond Act of 1978, L. 1978, c. 118.
On November 21, 2017, the DEP issued an RFP, "solicit[ing] proposals
from qualified organizations to operate public or private outdoor recreational
amenities within the Caven Point area." The DEP aimed to "advance the use of
. . . Caven Point to provide enhanced public or private recreational amenities
while preserving or enhancing existing public recreational uses, natural
resources, and ecological values of the site." The RFP allowed bidders to submit
a proposal for amenities that would be "reasonably . . . expected to result in a
diversion and/or conversion," provided that the proposal detailed how the bidder
would satisfy an additional compensation requirement. Regardless of the
proposed use, the DEP could reject any proposal if doing so was in the public
interest.
The RFP included the following provisions relevant to public disclosure
of submitted proposals and confidentiality during the proposal evaluation and
selection process:
1.4.6 Contents of Proposal
The entire content of every proposal that is
opened and read shall become a public record,
notwithstanding any statement to the contrary made by
a bidder in its proposal. As public records, all proposals
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are available for public inspection with the filing of an
[OPRA] request with the [DEP].
....
6.5 Negotiation and Best and Final Offer (BAFO)
After evaluating proposals, the [DEP] may enter
into negotiations with one bidder or multiple bidders
. . . . Negotiations will be structured by the [DEP] to
safeguard information and ensure that all bidders are
treated fairly.
....
All contacts, records of initial evaluations, any
correspondence with bidders related to any request for
clarification, negotiation or BAFO, any revised
technical and/or price proposals, the [e]valuation
[c]ommittee [r]eport and the [a]ward
[r]ecommendation, will remain confidential until a
[n]otice of [i]ntent to [a]ward a contract is issued.
On December 22, 2017, Liberty National submitted a bid. On April 9,
2018, plaintiff submitted an OPRA request to the DEP, seeking a "copy of the
entire content of every bid proposal" submitted in response to the RFP. Liberty
National's bid was the only submission. Three days later, Coefer denied
plaintiff's request, explaining that the competitive advantage exemption, see
N.J.S.A. 47:1A-1.1, exempted Liberty National's bid from public disclosure.
Consequently, on April 19, 2018, plaintiff filed an order to show cause and a
verified complaint against the DEP, Coefer, and Liberty National, alleging he
A-1527-18T3
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was denied access to Liberty National's bid in violation of OPRA and the
common law right of access to public records. He requested disclosure of the
bid and an award of attorney's fees.
Meanwhile, in a letter dated May 3, 2018, the DEP rejected Liberty
National's bid as "materially nonresponsive to a number of essential
requirements." In explaining the bid's deficiencies, the DEP identified some of
Liberty National's proposed terms, including rent payments and the amount of
compensation it would pay for deviating from the requirement that Caven Point
be used for recreational purposes. The rejection letter "also serve[d] as notice
that the DEP has exercised its right, in its sole discretion, to reject all bids,
responsive or otherwise, and not to pursue the project at this time." The DEP
did not know whether it would "re-bid the same or similar RFP."
In opposition to plaintiff's order to show cause, Liberty National's chief
financial officer (CFO) certified that, as part of its bid, "Liberty National
submitted confidential and sensitive business documents and infor mation,
including proprietary information related to [its] business operations and
financial viability." These documents were relevant to both its strategy in
competing for the RFP and "its continued viability as a prominent, private golf
course." He identified the following documents contained in the bid, which he
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asserted revealed Liberty National's financing and business operations: a
certified financial statement; an asset confirmation letter; a draft proposed leas e
agreement that included proposed monetary lease terms, a budget proposal,
insurance policy terms, and confidential information revealing construction and
design plans; an expert valuation of Caven Point; business registration forms;
stock ownership forms; revenue summaries from past events; proposed
operating and maintenance hours for Caven Point; advertising and marketing
proposals; "[s]ensitive security information . . . developed in conjunction with
multiple federal and state law enforcement agencies;" and liquor license
information. He claimed that disclosure of this information "would impair the
ability of Liberty National to compete for the subject RFP should [the] DEP
decide to reissue the RFP . . . . and would hinder Liberty National's ability to
stay competitive amongst other golf courses in the region," specifically with
regard to hosting the PGA TOUR.
The chief operating officer (COO) of PGA TOUR Golf Course Properties,
Inc., a subsidiary of PGA TOUR, also opposed plaintiff's order to show cause.
He certified that "Liberty National is currently under a long[-]term contract with
the PGA TOUR through which it is a recognized championship golf course with
an obligation to maintain its existing golf course in exchange for its right to host
A-1527-18T3
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future professional golfing events." Liberty National "routinely design[s] and
re-design[s] [its] . . . course[] in order to . . . compete for the right to host certain
championship golfing events." The COO further certified that the PGA Tour's
"professional engineers, architects and other professionals collaborate with
[Liberty National] and its engineers, architects, and other personnel in order to
facilitate the proper design, construction and management of its projects in
accordance with the necessary PGA TOUR standards." These designs "are kept
confidential by and between the PGA TOUR and Liberty National." The COO
claimed that disclosure of Liberty National's "golf course designs, construction
plans, and security information would cause irreparable harm to the PGA
TOUR's ability to maintain the integrity of its business relationships, as well as
the safety of its patrons."
On July 24, 2018, the judge heard oral argument, after which she issued
an oral decision compelling Liberty National to disclose its bid to plaintiff. She
largely relied on section 1.4.6 of the RFP, which provided that "every proposal
. . . shall become a public record . . . available for public inspection with the
filing of an [OPRA] request." She added that section 6.5 of the RFP did not
protect the bid because the DEP rejected it as nonresponsive, and there was no
evidence that the DEP negotiated with or contemplated negotiating with Liberty
A-1527-18T3
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National. The judge then discussed the OPRA exemptions in light of section
1.4.6, although she conducted no in camera review to ascertain the nature of the
bid's contents.
The judge found that the record did not support a finding that
nondisclosure was warranted to prevent unfair competitive advantage.
According to the judge, that Liberty National's bid was the only submission
"undercut the claims that there would be a competitive disadvantage," but even
if there had been other bidders, Liberty National's bid would not have been
useful because Liberty National was in a unique position as the operator of the
golf course on the adjacent property. As to the concern about PGA TOUR
competitors gaining a competitive advantage, the judge found that the impact of
disclosing the bid was speculative, since it would have become public if the DEP
had awarded the project to Liberty National. Likewise, the judge found that
Liberty National's bid did not contain trade secrets, finding persuasive the lack
of measures Liberty National took "to guard the secrecy of the information."
Next, the judge addressed N.J.A.C. 7:1D-3.2(c), which exempts "[r]ecords
related to Green Acres . . . land acquisitions, program offerings, and active
projects" when the "land transaction, program offering, or active project is
actively under negotiation." She found that the exemption did not apply because
A-1527-18T3
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there was no longer an active project, as the DEP had stopped pursuing the RFP
and indicated no probability of pursuing the same project in the future.
Lastly, the judge addressed the common-law right to access government
records. Upon balancing the parties' interests, she determined that the interest
in public access to Liberty National's bid was greater than the DEP's interest in
nondisclosure, due to section 1.4.6 of the RFP.
On July 25, 2018, the judge issued an order compelling Liberty National
to disclose its bid to plaintiff. She also ordered the parties to resolve the matter
of attorney's fees. On July 31, 2018, the parties signed a consent order, staying
disclosure pending disposition of an appeal. On October 22, 2018, the parties
signed a consent order, in which they agreed that the DEP would pay plaintiff's
attorney $10,000 "in full and final satisfaction of [p]laintiff's claim for counsel
fees." Payment was stayed pending disposition of an appeal, and the parties
agreed that any party "may file an appropriate application to modify the counsel
fee" if the July 25 order was modified or reversed on appeal. This appeal ensued.
On appeal, Liberty National contends that the judge erred in failing to
adequately consider the OPRA exemptions after she improperly concluded that
section 1.4.6 of the RFP mandated disclosure of Liberty National's bid. Liberty
National also contends that plaintiff made an inadequate showing that he is
A-1527-18T3
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entitled to disclosure of the bid under the common law. Because Liberty
National argues that plaintiff should not have prevailed before the trial judge, it
also requests reversal of the attorney's fees award.
II.
We review de novo a decision as to the applicability of OPRA and its
exemptions. In re N.J. Firemen's Ass'n Obligation, 230 N.J. 258, 273-74 (2017).
OPRA was enacted "to maximize knowledge about public affairs in order
to ensure an informed citizenry and to minimize the evils inherent in a secluded
process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury
Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law
Div. 2004)). It allows society to "monitor the operation of our government [and]
hold public officials accountable for their actions." Fair Share Hous. Ctr., Inc.
v. N.J. State League of Municipalities, 207 N.J. 489, 502 (2011). Thus, we
construe OPRA "in favor of the public's right to access." O'Boyle v. Borough
of Longport, 218 N.J. 168, 184 (2014) (quoting N.J.S.A. 47:1A-1).
OPRA provides that "government records shall be readily accessible for
inspection, copying, or examination by the citizens of this State, with certain
exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. A
government record includes "any . . . document . . . that has been made,
A-1527-18T3
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maintained or kept on file in the course of . . . official business by any . . . agency
. . . of the State." N.J.S.A. 47:1A-1.1. If "[a] person . . . is denied access to a
government record by the custodian of the record," he or she may initiate a
proceeding in the Superior Court, and "[t]he public agency shall have the burden
of proving that the denial of access is authorized by law." N.J.S.A. 47:1A -6.
The public's right to access government records is not absolute. See
N.J.S.A. 47:1A-1.1; N.J.S.A. 47:1A-9. OPRA excludes various types of
information from the definition of a government record, N.J.S.A. 47:1A-1.1, and
also provides that it "shall not abrogate any exemption of a public record or
government record from public access heretofore made pursuant to . . . [a]
regulation promulgated under the authority of any statute or Executive Order of
the Governor," N.J.S.A. 47:1A-9(a). "[C]ourt[s] must always maintain a sharp
focus on the purpose of OPRA and resist attempts to limit its scope, absent a
clear showing that one of its exemptions or exceptions incorporated in the statute
by reference is applicable to the requested disclosure." Tractenberg v. Township
of West Orange, 416 N.J. Super. 354, 378-79 (App. Div. 2010) (quoting Asbury
Park Press, 374 N.J. Super. at 329).
We preface our discussion of the OPRA exemptions by determining that
section 1.4.6 of the RFP does not compel us to mandate disclosure of Liberty
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National's bid. Although section 1.4.6 provided that "[t]he entire content of
every proposal that is opened and read shall become a public record," a party
requesting to inspect Liberty National's bid was still required to file an OPRA
request. As we previously noted, OPRA's purpose is "to maximize knowledge
about public affairs," Mason, 196 N.J. at 64 (emphasis added), not to provide
the public with an opportunity to seek information that is intended to remain
confidential, see N.J.S.A. 47:1A-1.1. Thus, we conclude that the RFP was still
governed by the OPRA exemptions. We now consider each exemption that
Liberty National contends precludes disclosure of its bid.
A.
OPRA exempts from public disclosure "trade secrets and proprietary
commercial or financial information obtained from any source." N.J.S.A.
47:1A-1.1. The statute does not define these terms, so we have considered
definitions from other sources.
Our Supreme Court considered a definition of trade secrets included in the
Restatement (First) of Torts § 757 cmt. b (Am. Law Inst. 1939): "A trade secret
may consist of any . . . compilation of information which is used in one's
business, and which gives . . . an opportunity to obtain an advantage over
competitors who do not know or use it." Hammock by Hammock v. Hoffman-
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LaRoche, Inc., 142 N.J. 356, 384 (1995) (quoting Smith v. BIC Corp., 869 F.2d
194, 199 (3d Cir. 1989)). Courts may also consider the following factors:
(1) [T]he extent to which the information is known
outside of the owner's business; (2) the extent to which
it is known by employees and others involved in the
owner's business; (3) the extent of measures taken by
the owner to guard the secrecy of the information; (4)
the value of the information to the owner and to his
competitors; (5) the amount of effort or money
expended by the owner in developing the information;
and (6) the ease or difficulty with which the information
could be properly acquired or duplicated by others.
[Id. at 384 (quoting Smith, 869 F.2d at 200).]
We have also considered the Restatement (Third) of Unfair Competition § 39
(Am. Law Inst. 1995), which defines a trade secret as "any information that can
be used in the operation of a business or other enterprise and that is sufficiently
valuable and secret to afford a potential economic advantage over others."
Commc'ns Workers of Am. v. Rousseau, 417 N.J. Super. 341, 361 (App. Div.
2010).
In Rousseau, we considered both definitions and upheld the application of
this exemption where the plaintiffs sought to compel disclosure of investment
agreements between the State and various limited partnerships. Id. at 360-62.
The agreements were not "made available to the general public," and "the
contents of individual agreements [were not] known beyond the partnership."
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Id. at 361-62. Further, "[t]he contents . . . are valuable not only to the general
partners, but also to competitors," as they "outline the organizational structure
of the partnerships, investment strategies, investment limitations, and other
terms governing the relationship between the general partner and limited
partners." Id. at 362.
In defining proprietary commercial or financial information, we have
considered the ordinary meaning of the words. Id. at 355; see DiProspero v.
Penn, 183 N.J. 477, 492 (2005). Proprietary commercial or financial
information is information that is private or exclusively owned and is related to
commerce, business, or "the management of money, banking, investments, and
credit." Rousseau, 417 N.J. super. at 355-56 (citing American Heritage
Dictionary of the English Language (4th ed. 2006)). We consider three factors
to decide whether proprietary information must be disclosed: "the relationship
of the parties at the time of disclosure, . . . the intended use of the information,
. . . [and] the expectations of the parties." Id. at 356 (citing Lamorte Burns &
Co. v. Walters, 167 N.J. 285, 299-301 (2001)). We have not required "an
independent demonstration of confidentiality." Id. at 358.
Liberty National's CFO certified that its bid contained "confidential
information revealing construction and design plans," and he asserted that
A-1527-18T3
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disclosure of such information "would hinder Liberty National's ability" to
compete with other golf courses for hosting PGA TOUR events. The PGA
TOUR subsidiary's COO certified that Liberty National's long-term contract
with the PGA TOUR requires that Liberty National "maintain its existing golf
course in exchange for its right to host future professional golfing events," which
requires Liberty National to "routinely design and re-design [its] . . . course[] in
order to . . . compete for the right to host certain championship golfing events."
He further certified that these designs "are kept confidential by and between the
PGA TOUR and Liberty National."
Liberty National's golf course designs and construction may be
"sufficiently valuable and secret to afford a potential economic advantage over
others," Rousseau, 417 N.J. Super. at 361 (quoting Restatement (Third) of
Unfair Competition § 39), and Liberty National and the PGA TOUR have
indicated that the designs are intended to remain confidential, see Hoffman-
LaRoche, 142 N.J. at 384. See also Rousseau, 417 N.J. Super. at 355-56
(discussing proprietary information). However, because we are unable to review
the contents of Liberty National's bid, we remand for in camera review to
ascertain whether the bid includes construction and design information that
amounts to a trade secret or proprietary information. If the bid contains such
A-1527-18T3
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information, the judge may consider whether to require disclosure of the entire
bid with the exempted portions redacted.
B.
OPRA provides for a competitive advantage exemption, which protects
from disclosure "information which, if disclosed, would give an advantage to
competitors or bidders." N.J.S.A. 47:1A-1.1. A "mere potential" that disclosure
would confer an advantage is insufficient. Tractenberg, 416 N.J. Super. at 379.
In Tractenberg, we declined to apply this exemption where an individual
sought disclosure of property appraisals obtained by the Township of West
Orange in its pursuit to acquire a parcel of private land. Id. at 360-62, 379. We
recognized that there was only a "mere potential for future negotiations"
between the Township and landowner, and the Township failed to make "a
strong showing that negotiations [were] probable." Id. at 379. To apply the
exemption under those circumstances would "subvert[] the broad reading of
OPRA as intended by the Legislature." Ibid. (quoting Times of Trenton Publ'g
Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)).
By contrast, in Rousseau, 417 N.J. Super. at 362, we upheld the
application of this exemption. We agreed with the trial judge's finding that
"[a]ny competitor knowing when a fund's strategy would induce it to buy or sell
A-1527-18T3
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would enjoy an advantage over the fund." Ibid. We added "that disclosure of
. . . the agreements would provide a competitive advantage not only to other
private equity funds but also to other investors interested in the same sectors,
companies, or properties." Id. at 363.
Here, we consider two potential issues: competition for a future RFP and
competition within the golf industry. There is no indication that the DEP intends
to re-bid the same RFP. Thus, this exemption does not apply on the basis that
disclosure would threaten future competition for the RFP. See Tractenberg, 416
N.J. Super. at 379.
The issue of competition within the golf industry, however, requires more
consideration. Substantially the same information that is relevant for the
purposes of the trade secret and proprietary information exemption is relevant
for the purpose of this exemption. Liberty National is concerned that disclosure
of its construction and design plans will provide an unfair advantage to other
golf courses competing for the same PGA TOUR hosting rights. We find this
concern to be justified. See Rousseau, 417 N.J. Super. at 362. Because we are
unable to review the contents of Liberty National's bid, we remand for in camera
review to ascertain whether the bid includes information that would provide
Liberty National's competitors with a competitive advantage in the golf industry.
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If the bid contains such information, the judge may consider whether to require
disclosure of the entire bid with the exempted portions redacted.
C.
OPRA also includes security exemptions, which preserve the
confidentiality of "emergency or security information or procedures for any
buildings or facility which, if disclosed, would jeopardize security of the
building or facility or persons therein[, and] security measures and surveillance
techniques which, if disclosed, would create a risk to the safety of persons,
property, electronic data or software." N.J.S.A. 47:1A-1.1. These exemptions
do "not creat[e] a blanket exception for any and all information about security
measures." Gilleran v. Township of Bloomfield, 227 N.J. 159, 173 (2016).
However, "[t]he compelled release under OPRA, on demand for any or no
reason, of a security system's operational product revealing otherwise nonpublic
information about monitoring capability is at odds with the legislative intent in
creating security exceptions to OPRA." Id. at 164.
Although our limited case law addressing this exemption has focused on
security systems implemented by governmental entities to protect public
buildings, see, e.g., Gilleran, 227 N.J. at 170-77, we see no reason to limit the
exemption to that concern. The statute's plain language does not restrict its
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application to the protection of public spaces, N.J.S.A. 47:1A-1.1, and other
OPRA exemptions protect various aspects of private entities', see Rousseau, 417
N.J. Super. at 360-62; Tractenberg, 416 N.J. Super. at 379. Moreover, Liberty
National has hosted and will likely continue to host professional golfing events
that attract a lot of people, so it is reasonably concerned for the safety of its
property, employees, and patrons.
Liberty National's CFO certified that its bid contained "[s]ensitive
security information . . . developed in conjunction with multiple federal and state
law enforcement agencies." The judge did not address this exemption in her
oral decision. Again, as we are unable to review the contents of Liberty
National's bid, we remand for in camera review to ascertain whether the bid
includes security information that would place at risk the security of Liberty
National's facilities or "the safety of persons, property, electronic data, or
software." If the bid contains such information, the judge may consider whether
to require disclosure of the entire bid with the exempted portions redacted.
D.
In addition to the exemptions enumerated in the OPRA statute, OPRA
incorporates exceptions created by other legal authorities, including regulations.
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N.J.S.A. 47:1A-9(a). The DEP has designated certain records as not subject to
disclosure, including records related to Green Acres land acquisitions:
Records related to Green Acres, Blue Acres, and
Natural Lands Trust land acquisitions, program
offerings and active projects, including appraisals,
valuations and title investigations, shall be made
available for public inspection, examination and
copying . . . unless the land transaction, program
offering, or active project is actively under negotiation,
a binding contract has not been executed, or disclosure
of the records would jeopardize the land transaction,
program offering. or active project.
[N.J.A.C. 7:1D-3.2(c).]
Our courts have not had the occasion to interpret this regulation. We
interpret it as we would interpret a statute, Bedford v. Riello, 195 N.J. 210, 221-
22 (2008), so we look to its plain language, DiProspero, 183 N.J. at 492. Where
the "language is clear and unambiguous, and susceptible to only one
interpretation," we need not look to extrinsic sources. Ibid. (quoting Lozano v.
Frank DeLuca Constr., 178 N.J. 513, 522 (2004)).
We read N.J.A.C. 7:1D-3.2(c) as requiring an existing transaction or
project for a related record to be exempted. Because the DEP stopped pursuing
the RFP, and there has been no indication as to whether it would re-bid the same
RFP again, the RFP is no longer an existing project. Thus, none of the
conditions for exemption are met. Accordingly, we affirm the judge's
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determination that N.J.A.C. 7:1D-3.2(c) does not bar disclosure of Liberty
National's bid.
III.
We review de novo a decision as to the applicability of the common law
right of access to public records. Drinker Biddle & Reath LLP v. N.J. Dep't of
Law and Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011).
OPRA does not "limit[] the common[-]law right of access to a government
record." N.J.S.A. 47:1A-8. "The common[-]law right of access to public
documents provides that a party shall have access to public documents when the
party seeking access has an interest in the documents and the party's interest
outweighs the public's interest in preventing disclosure." Rousseau, 417 N.J.
Super. at 363 (citing Keddie v. Rutgers, 148 N.J. 36, 50 (1997)). Under the
common law, a public record is more broadly defined as
one required by law to be kept, or necessary to be kept
in the discharge of a duty imposed by law, or directed
by law to serve as a memorial and evidence of
something written, said, or done, or a written memorial
made by a public officer authorized to perform that
function, or a writing filed in a public office.
[Nero v. Hyland, 76 N.J. 213, 222 (1978) (quoting
Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App.
Div. 1954)).]
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A party seeking access to a public record "must make a greater showing
than required under OPRA[.]" Mason, 196 N.J. at 67. The requestor "must
'establish an interest in the subject matter of the material.'" Ibid. (quoting
Keddie, 148 N.J. at 50). The requestor's interest "may be either a wholesome
public interest or a legitimate private interest." Drinker Biddle, 421 N.J. Super.
at 499 (quoting Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 302 (2009)).
The court must then balance "the citizen's right to access . . . against the
State's interest in preventing disclosure." Mason, 196 N.J. at 67-68 (quoting
Keddie, 148 N.J. at 50). The court should consider "whether the demand for
inspection is premised upon a purpose [that] tends to advance or further" the
requestor's interest. S. N.J. Newspapers, Inc. v. Township of Mount Laurel, 141
N.J. 56, 72 (1995) (internal quotation marks omitted) (quoting S. Jersey Publ'g
Co. v. N.J. Expressway Auth., 124 N.J. 478, 488 (1991)). The court may also
consider several factors in weighing the parties' interests:
(1) the extent to which disclosure will impede agency
functions by discouraging citizens from providing
information to the government; (2) the effect disclosure
may have upon persons who have given such
information, and whether they did so in reliance that
their identities would not be disclosed; (3) the extent to
which agency self-evaluation, program improvement,
or other decision[-]making will be chilled by
disclosure; (4) the degree to which the information
sought includes factual data as opposed to evaluative
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reports of policymakers; (5) whether any findings of
public misconduct have been insufficiently corrected
by remedial measures instituted by the investigative
agency; and (6) whether any agency disciplinary or
investigatory proceedings have arisen that may
circumscribe the individual's asserted need for the
materials.
[Id. at 73 (quoting Loigman v. Kimmelman, 102 N.J.
98, 113 (1986)).]
Generally, the State's "interest in nondisclosure is based on the need to
keep the information confidential." Keddie, 148 N.J. at 51. "However, where
the interest in confidentiality is 'slight or non-existent,' standing alone will be
sufficient to require disclosure to advance a legitimate private interest." Ibid.
(quoting Loigman, 102 N.J. at 105).
Plaintiff has a valid interest in the contents of Liberty National's bid, as it
arose from his interest in limiting or preventing development on park space. See
Drinker Biddle, 421 N.J. Super. at 499. However, the DEP has an interest in
nondisclosure of certain information. Compelling disclosure of trade secrets or
security information may discourage bidding for future projects. Although the
RFP indicated that the contents of every bid would become public, it also
indicated that interested parties would have to file an OPRA request, indicating
that the OPRA statute in its entirety still applies. The DEP's interest in
protecting future bidders outweighs plaintiff's interest. As we have explained,
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plaintiff is still entitled to inspect Liberty National's bid, with the appropriate
information redacted. Redaction of this information should still provide
plaintiff with an adequate understanding of how Liberty National proposed to
develop Caven Point. Accordingly, we reverse the judge's finding that plaintiff's
interest was greater than any interest in nondisclosure and her determination that
plaintiff was entitled to access the entirety of Liberty National's bid under the
common law.
IV.
In a proceeding to challenge the denial of access to government records,
"[a] requestor who prevails . . . shall be entitled to a reasonable attorney's fee."
N.J.S.A. 47:1A-6. Plaintiff initiated the action below to compel disclosure of
Liberty National's bid, and he was successful. However, we remand for review
of the issues previously discussed. If the judge determines that certain
information must be redacted before the bid is disclosed, the judge may
reconsider the award of attorney's fees. This is supported by language in the
October 22, 2018 order awarding plaintiff attorney's fees that any party "may
file an appropriate application to modify the counsel fee" if the July 25 , 2018
order was modified or reversed on appeal.
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To the extent we have not specifically addressed any remaining arguments
raised by the parties, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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