OPRA Applies to Requests for Bid Specifications

By: Kelly E. Adler, Esq.

In Bozzi v. City of Atlantic City, 2014 N.J. Super. LEXIS 6, decided on January 7, 2014, the Appellate Division addressed three important issues:  (1) whether an actual written OPRA request is necessary for the Open Public Records Act (“OPRA”) to apply;  (2) whether bid specifications are government records under OPRA; and (3) regardless of whether a written OPRA request is made, is a public entity required to follow the fee provisions of OPRA with regard to copying fees when providing a government record to a member of the public.  In determining that a failure to make a written request was fatal to an award pursuant to the Open Public Records Act (“OPRA”), the Appellate Division also determined that bid specifications are government records and the fee provisions apply with regard to all government records, regardless of whether an OPRA request was made for access to the record.

On February 3, 2012, Plaintiff, Ernest Bozzi, requested, from the City of Atlantic City, 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.  No OPRA form was filled out by the Plaintiff and the request was made verbally.  Plaintiff was given a copy of the bid specifications and charged $25.00, which Plaintiff paid. 

Thereafter, Plaintiff sued Atlantic City, alleging that Atlantic City, their records custodian and civil engineer (“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 alleged that 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, along with counsel fees and costs.  Defendants argued that Plaintiff never filed an OPRA request and that 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 experienced in their respective fields,” and therefore, the $25.00 charge was reasonable. 

The trial judge found in favor of Plaintiff, holding that the requested document was a public record and that the $25.00 blanket fee for the bid specifications was a violation of the OPRA statute.  The trial judge also awarded attorneys fees. 

As a result, Defendants appealed the trial judge’s decision and argued that plaintiff’s failure to submit a written OPRA request was fatal to relief under the statute. Further, Defendants maintained that the provision of bid specifications falls outside OPRA’s scope and is governed by the Local Public Contracts Law (“LPCL”). 

With regard to the requirements for a proper request for access to a government record pursuant to OPRA, the statute states:

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 Appellate Division, in analyzing this matter, held that the courts are not free to ignore the language of a statute.  Specifically, the Appellate Division stated:

“. . . 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.”

As a result, the Appellate Division vacated the attorneys fee award because the fee award can only be sustained if the statute applies.  Since OPRA does not apply due to the Plaintiff’s failure to submit a written OPRA request, he was not entitled to a fee award.

The Appellate Division, however, also addressed the Defendants’ argument that the bidding documents are not public records and are governed by the LPCL and not OPRA.  This argument was rejected by the Appellate Division.  The Appellate Division explained that the LPCL requires certain contracts entered into by local public entities be procured through a public bidding process detailed in that statute.  Further, the Court noted that 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.  The Court further noted that 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. The Court further noted that no provision of the LPCL would exempt the bid specifications from OPRA.  The Appellate Division explained that OPRA defines a government record as:

any paper, written or printed book, document, drawing, map, plan, photograph, 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.  The Court determined that no exception applies that would carve out the bid specifications from the definition of a government record.  As a result, the Court explained that even though a proper OPRA request was not made, the fee provisions found in OPRA apply since the record provided is a government record as defined by OPRA.   The Court noted that the Legislature may not have had bid specifications in mind when lawmakers crafted the OPRA statute.  Nevertheless, the Court indicated that it was not the Court’s job to craft exceptions.

Therefore, it is important for public entities to understand the implications of this decision.  Although it is an unpublished decision and, hence, not binding on the trial courts, it is recommended that public entities evaluate their policies and make a determination whether their copying policies should be changed.

Many public entities have charged a flat fee to anyone requesting copies of bid specifications.  Assuming this decision is followed by the trial courts, charging a flat fee will no longer acceptable and, instead, OPRA’s fee provisions would apply with regard to all documents that are public records under OPRA.  No longer would it be appropriate for public entities to charge more than the current per page rate established by OPRA when providing a public record to a member of the public, even if the request for the bid specifications was not made pursuant to OPRA.