Ernest Bozzi v. City of Atlantic City

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0532-12T4

ERNEST BOZZI,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. January 7, 2014

APPELLATE DIVISION
CITY OF ATLANTIC CITY,
RHONDA WILLIAMS, RMC, AND
WILLIAM M. ENGLAND, P.E.,
CITY ENGINEER,

Defendants-Appellants.
_______________________________

Argued August 6, 2013 - Decided January 7, 2014

Before Judges Messano,1 Lihotz and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-1588-12.

George N. Polis argued the cause for
appellants.

Donald M. Doherty, Jr., argued the cause for
respondent.

The opinion of the court was delivered by

LIHOTZ, J.A.D.

1
Judge Messano did not participate in oral argument. He joins
the opinion with counsel's consent. R. 2:13-2(b).
 Defendants, the City of Atlantic City, the city's municipal

clerk Rhonda Williams, and the city engineer William M. England,

P.E. (collectively defendants), appeal from a Law Division order

concluding plaintiff Ernest Bozzi suffered a violation of the

Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The

trial court entered judgment for plaintiff and awarded

attorney's fees. The judge rejected defendants' argument that

the absence of a written OPRA request obviated plaintiff's

recovery under the statute and also that the cost charged for

providing plaintiff with a bid package for a city project was

subject to the Local Public Contracts Law (LPCL), N.J.S.A.

40A:11-1 to -51.

We reverse, in part, concluding plaintiff's failure to

satisfy OPRA's requirement for a written record request is fatal

to recovery under the statute. Further, we affirm the order

denying the claimed exception under the LPCL, concluding the

requested bid specifications are government records, not

otherwise excepted from OPRA's fee limits.

On February 3, 2012, plaintiff requested a copy of bid

specifications for award of a thirty-three month contract to

provide heating, ventilation, and air conditioning maintenance

and service for the Clayton G. Graham Public Safety Building.

Plaintiff went to Williams's office. Williams is designated as

2 A-0532-12T4
the official records custodian of Atlantic City. There, a staff

member directed plaintiff to the city engineer's office.

Plaintiff then presented his request to a staff member in

England's office. Plaintiff asserted the staff member told him

an OPRA form was "not necessary." That same day, plaintiff was

provided with the sixty-nine page bid specification package and

charged a flat fee of twenty-five dollars, which he paid.

Plaintiff filed an order to show cause and a three-count

complaint, alleging defendants violated OPRA, the common law

right to access, and the Civil Rights Act (the Act), N.J.S.A.

10:6-1 to -2. The complaint asserted OPRA limited copying costs

of public documents to five cents per page, making the fee

charged for the material excessive. Plaintiff sought a refund

of $21.55,2 along with counsel fees and costs.

The matter proceeded summarily. Defendants filed an answer

and responding certifications. Williams detailed the City's

OPRA policy and stated no OPRA request was filed by plaintiff.

England explained the bid specifications, when prepared,

"require[d] specialized and skilled services usually by

professional and experienced staff in consultation with other

City departments' staff [that] are equally skilled and

2
Plaintiff's complaint requested $21.80, which was later
acknowledged as a mathematical error.

3 A-0532-12T4
experienced in their respective fields." Oral argument was

held, and supplemental briefs submitted.

The Law Division judge issued a written opinion. He

determined defendants violated OPRA, after finding the requested

"public records . . . were public bid specifications pursuant to

N.J.S.A. 40A:11-23.1, not competitive contract proposals as

contemplated by N.J.S.A. 40A:11-4.5." Accordingly, the judge

concluded the $25 "blanket fee for distribution of public

bidding documents under N.J.S.A. 40A:11-23[.1]" was unlawful as

charges were subject to the copying limits of N.J.S.A. 47:1A-

5(b). Judgment was entered for plaintiff as a "prevailing

party," along with counsel fees in an amount to be set pursuant

to N.J.S.A. 47:1A-6. A subsequent counsel fee petition was

considered, and plaintiff was awarded $10,096.05. The same

order enjoined defendants from future OPRA violations and

specifically restrained the imposition of a flat fee for

provision of bid specifications. This appeal ensued.

Defendants argue plaintiff's failure to submit a written

OPRA request is fatal to relief under the statute. Further,

defendants maintain the provision of bid specifications falls

outside OPRA's scope and is governed by the LPCL.

In our examination of these issues, we must consider

certain legal principles. First, we note the applicability of

4 A-0532-12T4
OPRA is a legal question. K.L. v. Evesham Twp. Bd. of Educ.,

423 N.J. Super. 337, 349 (App. Div. 2011), certif. denied, 210

N.J. 108 (2012). "A trial court's interpretation of the law and

the legal consequences that flow from established facts are not

entitled to any special deference." Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Whether a

municipality appropriately responded to a record request and the

manner the request was effectuated are legal issues subject to

our plenary review. Sussex Commons Assocs., LLC v. Rutgers, 416

N.J. Super. 537, 548 (App. Div. 2010), rev'd on other grounds,

201 N.J. 531 (2012).

Second, in undertaking our review,

we are guided by the rules governing
statutory interpretation. Primarily, "[i]n
interpreting a statute, our role 'is to
determine and effectuate the Legislature's
intent.'" Allen v. V & A Bros., Inc., 208
N.J. 114, 127 (2011) (quoting Bosland v.
Warnock Dodge, Inc., 197 N.J. 543, 553
(2009)). We are obligated to glean the
Legislature's intention from the words of
the statute, giving them their ordinary
meaning. Burnett v. Cnty. of Bergen, 198
N.J. 408, 421 (2009); see also N.J.S.A. 1:1-
1 (stating a statute's "words and phrases
shall be read and construed with their
context" and "given their generally accepted
meaning"). "To that end, 'statutes must be
read in their entirety; each part or section
should be construed in connection with every
other part or section to provide a
harmonious whole.'" Burnett, supra, 198
N.J. at 421 (quoting Bedford v. Riello, 195
N.J. 210, 224 (2008)).

5 A-0532-12T4
 [Newark Morning Ledger Co. v. N.J. Sports &
Exposition Auth., 423 N.J. Super. 140, 159-
160 (App. Div. 2011).]

See also Waterfront Comm'n of N.Y. Harbor v. Mercedes-Benz of N.

Am., Inc., 99 N.J. 402, 414 (1985) (holding our construction is

guided by consideration of individual statutory components in

the context of the entire enactment). "Statutes that deal with

the same matter or subject matter should be read in pari materia

and construed together as a unitary and harmonious whole."

Shelton v. Restaurant.com, Inc., 214 N.J. 419, 438 (2013)

(quotation marks and citations omitted).

Finally, we are "guided by the legislative objectives

sought to be achieved by the statute." Id. at 429 (citing

Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572

(2012)). The legislative purpose in enacting OPRA was to assure

ready access to government records "for inspection, copying, or

examination by the citizens . . . ." N.J.S.A. 47:1A-1. "OPRA

was specifically designed 'to maximize public knowledge about

public affairs in order to ensure an informed citizenry and to

minimize the evils inherent in a secluded process.'" Newark

Morning Ledger Co., supra, 423 N.J. Super. at 160 (quoting

Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581,

588 (2011)).

6 A-0532-12T4
 Defendants initially maintain the trial judge erred in

concluding OPRA applied to these facts because plaintiff did not

submit a written OPRA request. Also, because "the most basic

yet procedurally necessary element of an OPRA claim is lacking,"

defendants conclude the attorney fee award must be set aside.

Defendants advanced this argument before the trial judge,

who determined:

While [p]laintiff's [c]omplaint makes
reference to "an OPRA request" and there is
some muddled discussion regarding whether
one was partially prepared, it's clear from
the submissions of counsel and
[c]ertifications that a written OPRA request
form was never formally completed and
submitted to the [defendants] by the
[p]laintiff.

. . . .

While it is true . . . "all requests for
OPRA records must be in writing" that
doesn't end the discussion but, rather,
merely begins the conversation that the
[c]ourt and counsel must have on the issues
raised by this litigation. Whether . . . a
claim by a citizen is an "OPRA case" is not
determined by whether . . . an OPRA form is
utilized. The fee guidelines of OPRA are
not triggered by the use [of] an OPRA form
prepared by a municipality but, rather,
whether . . . the fees assessed to a member
of the public are lawful, i.e., established
by a particular statute authorizing the same
or whether there are no guidelines, in which
case OPRA guidelines must control.

7 A-0532-12T4
 The judge concluded plaintiff's document request was for a

public record, triggering OPRA's copying cost limitations, a

conclusion defendants argue is erroneous.

In pertinent part, OPRA provides:

A request for access to a government
record shall be in writing and hand-
delivered, mailed, transmitted
electronically, or otherwise conveyed to the
appropriate custodian. A custodian shall
promptly comply with a request to inspect,
examine, copy, or provide a copy of a
government record. If the custodian is
unable to comply with a request for access,
the custodian shall indicate the specific
basis therefor on the request form and
promptly return it to the requestor. The
custodian shall sign and date the form and
provide the requestor with a copy thereof.

[N.J.S.A. 47:1A-5(g).]

The requirement for a written request is not gratuitous.

See Renna v. Cnty. of Union, 407 N.J. Super. 230, 232 (App. Div.

2009) ("We hold that all requests for OPRA records must be in

writing[.]"). The detailed process set forth in subsection (g),

as well as the other subsections of N.J.S.A. 47:1A-5,

purposefully devises a uniform procedure to be followed by one

making a request for government records and one responding to

that request. "Various provisions in the statute are designed

to foster cooperation among requestors and agencies and

reasonably accommodate their interests." Mason v. City of

Hoboken, 196 N.J. 51, 66 (2008). The writing requirement gives

8 A-0532-12T4
the government entity a clear understanding of the nature of

what is sought and triggers an obligation to comply with OPRA's

provisions to fulfill the request.

The Legislature had the option of allowing oral requests.

Indeed, when OPRA was adopted, similar legislation existed in

other states that permitted various means of communicating a

government record request. See Renna, supra, 407 N.J. Super. at

241 n.4 (providing a survey of state legislation that allows

oral requests for copies of government records). New Jersey's

Legislature specifically chose not to permit oral requests, and

instead sought to guard against contests over the specifics of

an application by mandating each request "shall be in writing

and hand-delivered, mailed, transmitted electronically, or

otherwise conveyed to the appropriate custodian." N.J.S.A.

47:1A-5(g). See also Paff v. City of E. Orange, 407 N.J. Super.

221, 226 (App. Div. 2009).

"[C]ourts are not to read into a statute words that were

not placed there by the Legislature." State v. Smith, 197 N.J.

325, 332 (2009). We are precluded from "'rewrit[ing] a plainly-

written enactment of the Legislature . . . [or] presum[ing] that

the Legislature intended something other than that expressed by

way of the plain language.'" Bosland, supra, 197 N.J. at 553

(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

9 A-0532-12T4
 In this light, we conclude the express requirement for a

written record request, unequivocally set forth in N.J.S.A.

47:1A-5(g), cannot be ignored merely because a government record

was sought. We are not free to disregard the writing

requirement, which would render the statutory provision

meaningless, and create a circumstance running counter to the

express language in OPRA. See Renna, supra, 407 N.J. Super. at

238; see also Evans v. Atl. City Bd. of Educ., 404 N.J. Super.

87, 92 (App. Div. 2008) ("[I]t is appropriate to consider the

doctrine of 'expressio unius est exclusio alterius,' which

suggests that the mentioning of one or more things excludes

others.").

Plaintiff suggests his written OPRA form was not accepted.

Defendants refute this claim. Had plaintiff proven his efforts

to submit an OPRA request were rebuffed, he would certainly have

a basis for relief under the statute, as a governmental entity

may not sidestep its obligations to comply with OPRA by

declining to accept a written OPRA request. However,

plaintiff's allegations were unsupported by the evidence. The

reviewing judge specifically determined "a written OPRA request

form was never formally completed and submitted to the

[defendants] by the [p]laintiff."

10 A-0532-12T4
 We also reject plaintiff's argument suggesting subsection

(b)'s limitation on the charge for provision of copies of

government records operates independently of subsection (g),

allowing recovery, notwithstanding the failure to submit a

written request. The sections are combined under one statutory

provision, the unitary structure of which must be read together.

Burnett, supra, 198 N.J. at 421. As we noted, we may not ignore

the Legislature's deliberate mandate imposing requisites upon

the requester and the record holder. Prior opinions addressing

charges for use of self-service copy machines to copy deeds,

mortgages and lien information are inapposite to the facts at

hand. See Dugan, supra, 376 N.J. Super. at 278.3

Consequently, the determination that defendants violated

OPRA must be reversed. Further, the order granting an attorney

fee award in favor of plaintiff as a prevailing party is

unsupported and also must be vacated. Fee shifting can be

3
We recognize that in Dugan v. Camden County Clerk's Office,
376 N.J. Super. 271 (App. Div.), certif. denied, 184 N.J. 209
(2005), we concluded an OPRA request was triggered, despite the
absence of the submission of a written request. Id. at 278.
However, the facts of that case presented unique circumstances.
In that matter, the records sought — "deeds, mortgages and other
lien information" — were required to be kept by the county clerk
in a public area, accessible to self-service public users. Id.
at 273, 278. This case, however, does not present a similar
type of document request, that is, documents mandated to be
accessible for self-service by the public. Therefore, Dugan is
distinguishable on its facts.

11 A-0532-12T4
sustained only when the statute applies in the first instance.

Spectraserv v. Middlesex Cnty. Util. Auth., 416 N.J. Super. 565,

583-84 (App. Div. 2010).

For completeness, we address defendants' argument the

bidding documents are not public records and their provision, as

well as any fee for doing so, is governed by the LPCL, not OPRA.

Additional statutory background will aid understanding.

The LPCL requires "certain contracts entered into by local

public entities be procured through a public bidding process

detailed in that statute." Borough of Princeton v. Bd. of

Chosen Freeholders of Mercer, 169 N.J. 135, 140 (2001). The

LPCL provides that all contracts for the performance of

municipal work or services must be advertised for and awarded to

the lowest responsible bidder. See N.J.S.A. 40A:11-4. The

Supreme Court has underscored the importance of the unique

public policy concerns of the LPCL, as necessary to "'secure for

the public the benefits of unfettered competition,' and to

'guard against favoritism, improvidence, extravagance, and

corruption.'" Nat'l Waste Recycling, Inc. v. Middlesex Cnty.

Improvement Auth., 150 N.J. 209, 219 (1997) (quoting Terminal

Constr. Corp. v. Atl. Cnty. Sewage Auth., 67 N.J. 403, 410

(1975)).

12 A-0532-12T4
 Statutory amendments enacted in January 2000 added N.J.S.A.

40A:11-4.1 to -4.5, which afford public entities an alternative

means of advertising for specific public services. Weidner v.

Tully Envtl., Inc., 372 N.J. Super. 315, 318 (App. Div. 2004).

The competitive contracting provisions recognize that a

governmental entity may satisfy a need for services where other

considerations outweigh the public benefit of cost savings. The

amendments reflect the Legislature's intent to provide a

flexible method to award bids by the use of a scoring and

evaluation process, rather than awarding bids at the lowest

cost. This process ensures bidding remains fair and free from

fraud. N.J.S.A. 40A:11-4.4(b).

Among the added provisions regarding competitive

contracting proposals is N.J.S.A. 40A:11-4.5(a), which permits

the contracting unit to charge the greater of $50 or the cost of

reproducing the documentation for a request for proposal.

Defendants maintain this section also guides a municipality's

fee charged for requests for proposals on bidding contracts,

thus overriding OPRA's payment provisions.

The bid specifications sought by plaintiff for maintenance

services over a thirty-three month period were for an award of a

public contract governed by the LPCL. See N.J.S.A. 40A:11-3(a),

(b) (exempting contracts that do not exceed $17,500 per contract

13 A-0532-12T4
year and do not extend beyond twenty four months); N.J.S.A.

40A:11-2 (exempting a number of transactions from the public

bidding requirement, none of which apply here).

We concur with the trial judge's conclusion that

plaintiff's request for the bid specifications for the proposed

maintenance contract falls outside the specialized goods and

services eligible to be obtained through competitive contracting

proposals identified in N.J.S.A. 40A:11-4.1(b). Further, we

agree N.J.S.A. 40A:11-4.5(a) is generally inapplicable to all

contracts and is limited to requests for competitive contracting

proposals. Finally, no provision of the LPCL, which for the

most part was enacted long before OPRA, addresses a fee amount

to obtain copies of the contracting unit's request for bid

specifications. Accordingly, no provision of the LPCL would

specifically exempt plaintiff's request from OPRA.

We turn to whether the bid specifications are government

records covered by OPRA. In determining whether a document

request submitted to a governmental entity is subject to OPRA,

we analyze whether the material requested constitutes a

government record.

As noted, OPRA defines a government record broadly, to

include

any paper, written or printed book,
document, drawing, map, plan, photograph,

14 A-0532-12T4
 microfilm, data processed or image processed
document, information stored or maintained
electronically or by sound-recording or in a
similar device, or any copy thereof, that
has been made, maintained or kept on file in
the course of his or its official business
by any officer, commission, agency or
authority of the State or of any political
subdivision thereof, including subordinate
boards thereof, or that has been received in
the course of his or its official business
by any such officer, commission, agency, or
authority of the State or of any political
subdivision thereof, including subordinate
boards thereof.

[N.J.S.A. 47:1A-1.1.]

Defendants rely on the final sentence of this definitional

provision, which states: "The terms shall not include inter-

agency or intra-agency advisory, consultative, or deliberative

material." Ibid.

The exception at issue "has long been understood to

encompass the common-law deliberative process privilege[.]"

McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 618 (App. Div.

2010). "The deliberative process privilege 'permits the

government to withhold documents that reflect advisory opinions,

recommendations, and deliberations comprising part of a process

by which governmental decisions and policies are formulated.'"

Educ. Law Ctr. ex rel. Abbott v. N.J. Dep't of Educ., 198 N.J.

274, 285 (2009) (quoting In re Liquidation of Integrity Ins.

Co., 165 N.J. 75, 83 (2000)). "The privilege exists 'to ensure

15 A-0532-12T4
free and uninhibited communication within governmental agencies

so that the best possible decisions can be reached. . . .'"

McGee, supra, 416 N.J. Super. at 619 (quoting Educ. Law Ctr. ex.

rel. Abbott, supra, 198 N.J. at 286) (citation omitted)).

The initial burden falls on the governmental entity to show

that the documents it seeks to shield are pre-decisional and

deliberative in nature and contain opinions, recommendations, or

advice about governmental policies. Integrity, supra, 165 N.J.

at 88.

In order to claim the protection of this provision, a

custodian must satisfy two requirements. Id. at 84-85. First,

the custodian must show that the document is "pre-decisional,"

or "generated before the adoption of an agency's policy or

decision." Id. at 84. Second, the custodian must establish

that the document is "deliberative in nature, containing

opinions, recommendations, or advice about agency policies."

Id. at 84-85.

Guided by this test, it is clear defendants cannot satisfy

these requirements. While we can agree inter-departmental input

was necessary for the creation of the bid specifications and the

exception might shield any interdepartmental documents exchanged

in creating the final bid specification package, we cannot

accede to the suggestion that the final document requested by

16 A-0532-12T4
plaintiff was pre-decisional or deliberative. The bid

specifications were intended to be distributed, not protected

from disclosure. Consequently, we reject as unfounded

defendants' suggestion the "advisory, consultative, or

deliberative material" exception applies.

Finding no provision in the LPCL to allow a standard fee

for defendants' provision of bid specifications and, also,

concluding the documents sought fall within OPRA's encompassing

definition of government records and are not shielded by a

statutory exception, we must conclude that had plaintiff

submitted a written OPRA request seeking the bid specifications,

defendants' fee for duplication must accord with the limits of

N.J.S.A. 47:1A-5(b), that is, "$0.05 per letter size page or

smaller, and $0.07 per legal size page or larger[,]" or the

"actual costs of duplication." Ibid.

We recognize bid specifications may not be the type of

government records the Legislature had in mind when adopting

OPRA. However, it is up to the Legislature to craft an

exception to OPRA's fee limits for provision of such documents,

not the courts.

In summary, we affirm the trial court's order finding the

bid specifications are government records subject to OPRA.

However, we reverse the May 22, 2012 order finding defendants

17 A-0532-12T4
violated OPRA and concluding plaintiff is a prevailing party

entitled to counsel fees and costs. Finally, we reverse the

August 17, 2012 attorney fee award.

Affirmed in part and reversed in part.

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