Opinion
DOCKET NO. A-4072-11T4
09-30-2015
ACADEMY EXPRESS, LLC, a New Jersey Domestic Limited Liability Company, Plaintiff-Appellant/Cross-Respondent, v. RUTGERS, THE STATE UNIVERSITY, a body corporate and politic organized and existing pursuant to Rutgers, the state university law, N.J.S.A. 18A:65-1 et seq. and NATALIE A. CALLEJA, individually and in her capacity as the Associate Director of the Purchasing Department of Rutgers, the State University, Defendants-Respondents/Cross-Appellants, and KEVIN LYONS, in his official capacity as the Executive Director of the Purchasing Department of Rutgers, The State University, BRUCE C. FEHN, in his official capacity as the Senior Vice President for Finance and Administration of Rutgers, The State University, BOARD OF GOVERNOR OF RUTGERS, THE STATE UNIVERSITY, in its official capacity as the body vested with general supervision over the government, control, conduct, management and administration of Rutgers, The State University, RICHARD McCORMICK, in his official capacity as President and Chief Executive Officer of Rutgers, The State University and KIMBERLEE M. PASTVA, in her official capacity as the representative of the UNIVERSITY CUSTODIAN OF RECORDS of Rutgers, The State University, Defendants, and FIRST TRANSIT, INCORPORATED, a foreign corporation doing business in New Jersey and RICARDO "RICK" PULIDO, individually and in his capacity as an employee and Director of New Business-Shuttles of First Transit, Incorporated, Defendants-Respondents.
Matthew J. Giacobbe argued the cause for appellant/cross-respondent (Cleary, Giacobbe, Alfieri, Jacobs, LLC, attorneys; Mr. Giacobbe and Christopher J. Brennan, on the briefs). Gavin J. Rooney argued the cause for respondents/cross-appellants Rutgers, the State University and Natalie Calleja (Lowenstein Sandler, LLP, attorneys; Mr. Rooney, of counsel and on the brief; Julie Levinson Werner and Joseph A. Fischetti, on the briefs). Thomas P. Scrivo argued the cause for respondents First Transit, Inc. and Ricardo Pulido (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo and Greg Trif, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9083-10. Matthew J. Giacobbe argued the cause for appellant/cross-respondent (Cleary, Giacobbe, Alfieri, Jacobs, LLC, attorneys; Mr. Giacobbe and Christopher J. Brennan, on the briefs). Gavin J. Rooney argued the cause for respondents/cross-appellants Rutgers, the State University and Natalie Calleja (Lowenstein Sandler, LLP, attorneys; Mr. Rooney, of counsel and on the brief; Julie Levinson Werner and Joseph A. Fischetti, on the briefs). Thomas P. Scrivo argued the cause for respondents First Transit, Inc. and Ricardo Pulido (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo and Greg Trif, of counsel and on the brief). The opinion of the court was delivered by ESPINOSA, J.A.D.
This matter arises from the failed bid of plaintiff Academy Express, LLC (Academy) to win a contract with defendant Rutgers, the State University (Rutgers or the University) to operate the school's bus system. Academy filed suit against Rutgers, alleging violations of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 and the common law right of access. In addition, Academy asserted various other claims against Rutgers, First Transit, Inc. (First Transit), the winner of the contract, and individual defendants. The trial court granted summary judgment to Academy, finding Rutgers had violated OPRA and its common law disclosure obligation, and awarded Academy attorney fees, but dismissed all of Academy's other claims. Academy appeals from the dismissals of its claims and the amount of its attorney fee award. Rutgers cross-appeals from the determination it violated OPRA and the common law right of access, and the award of counsel fees to Academy. For the reasons that follow, we affirm the dismissal of Academy's claims and reverse the order finding a violation of OPRA and the award of counsel fees.
When Rutgers issued a new Request for Proposal (RFP) for the contract that would run from July 1, 2011 through June 30, 2016, only two vendors submitted bids, Academy, the incumbent bus vendor, and defendant First Transit. On October 1, 2010, the Rutgers evaluation committee declared First Transit the conditional winner of the contract. On October 21, 2010, Rutgers and First Transit executed a final contract (FT contract).
The following day, Academy submitted an OPRA request to Rutgers. The details regarding Academy's requests and the University's responses are discussed later in this opinion.
Academy's complaint, as amended, alleged claims against Rutgers and the following Rutgers employees: Natalie A. Calleja, as associate director of the Rutgers University Purchasing Department (RUPD); Kevin Lyons, as executive director of the RUPD; Bruce Fehn, as Rutgers Senior Vice-President for finance and administration; Richard McCormick, as Rutgers president and chief executive officer; and Kimberlee M. Pastva, as the representative of the Rutgers custodian of records (collectively, "Rutgers defendants"). Calleja was sued both individually and in her official capacity. The complaint alleged the following claims against Rutgers and Pastva: withholding documents in violation of OPRA (count one) and of common law (count two); promissory estoppel (count three); and that Rutgers and its employees deprived Academy of its due process rights (count four).
Academy also asserted five counts against First Transit and Ricardo "Rick" Pulido (collectively, the First Transit defendants), and against Calleja, individually: intentional interference with its prospective contract with Rutgers (count five); conspiracy to interfere and aid in the commission of that tort (counts six and seven, respectively); unlawful restraint of competition (count eight); and a civil violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2 (count eleven).
In the remaining counts of the amended complaint, Academy asked the court to invalidate First Transit's initial bid and ensuing award pursuant to the Declaratory Judgment Act (DJ Act), N.J.S.A. 2A:16-50 to -62 (count nine), and to find that Rutgers violated several public contracting statutes (count ten).
On March 22, 2011, the Rutgers defendants and the First Transit defendants moved to dismiss counts three through eleven. Academy filed a cross-motion on April 7, 2011, to temporarily enjoin Rutgers from commencing its contract with First Transit that was scheduled to begin on July 1, 2011.
By order dated May 6, 2011, the trial court dismissed counts four (violation of due process), nine (invalidation of FT contract) and ten (violations of public contracting laws) pursuant to Rule 4:6-2(e). The court also denied Academy's cross-motion to set aside the FT contract based on the holding in Rutgers, the State University v. Kugler, 110 N.J. Super. 424 (Law Div. 1970), aff'd, 58 N.J. 113 (1971), which established that Rutgers is not subject to public bidding laws. The court reasoned that, pursuant to Kugler, Academy lacked a basis to challenge the First Transit proposal and therefore, could not establish a legal basis to sustain counts four, nine and ten. Academy's motion for reconsideration of the dismissal of count nine was denied.
In August and September 2011, Academy voluntarily dismissed its RICO claim (count eleven) and the tort claim alleging unlawful conspiracy to restrict competition (count eight). The parties filed summary judgment motions as to all remaining counts. The trial court granted summary judgment to Calleja, First Transit and Pulido, dismissing the counts against them in their entirety. In a written decision, the court granted summary judgment to Rutgers, dismissing the promissory estoppel claim alleged in count three. The court also granted summary judgment to Academy on its OPRA and common law right of access counts, deeming it to be a prevailing party. As directed by the order of judgment, Academy submitted a fee certification for the award of counsel fees. The trial court awarded Academy $38,9 90 in counsel fees and costs of $3,162.
Academy presents the following arguments in its appeal:
POINT I
THE COURT BELOW ERRED IN REDUCING THE NUMBER OF HOURS THAT WERE
COMPENSABLE TO ACADEMY AS A PREVAILING PARTY UNDER OPRA (COUNTS 1 AND 2).
POINT II
THE COURT BELOW ERRED IN FINDING THAT AS A MATTER OF LAW, RUTGERS' POLICIES AND PROCEDURES DID NOT OPERATE AS A PROMISE TO ACADEMY TO ENSURE A COMPETITIVE BID PROCESS AND THUS WRONGFULLY DISMISSED ACADEMY'S PROMISSORY ESTOPPEL CLAIM (COUNT 3)
POINT III
THE COURT BELOW ERRED BY DISMISSING ACADEMY'S CLAIM TO DECLARE THE CONTRACT BETWEEN RUTGERS AND FIRST TRANSIT VOID AB INITIO.
A. THE COURT MISAPPLIED THE RULE REQUIRING A LIBERAL CONSTRUCTION OF PLEADINGS.
B. THE COURT ERRED IN DECLARING THAT ACADEMY HAD NO STANDING TO BRING THE CLAIM.
C. THE COURT BELOW ERRED IN FOCUSING SOLELY ON THE TERMS OF THE RFP WHILE IGNORING THE POLICIES AND PROCEDURES UPON WHICH THE COMPLAINT SOUGHT TO DECLARE THE RUTGERS-FIRST TRANSIT COUNTRACT VOID AB INITIO.
POINT IV
THE COURT BELOW ERRED IN DISMISSING ACADEMY'S DUE PROCESS CLAIM (COUNT 4) AT THE PLEADINGS STAGE WHEN IT DETERMINED THAT ACADEMY HAD NOT PLED SUFFICIENTLY TO DEMONSTRATE A DEPRIVATION OF A PROPERTY RIGHT.
POINT V
THE COURT BELOW ERRED IN DISMISSING THE CLAIMS FOR VIOLATIONS OF THE PUBLIC CONTRACTS LAW (COUNT 10) WHEN IT FAILED TO RECOGNIZE AN EVOLUTION IN THE LAW SINCE RUTGERS, [THE STATE UNIVERSITY] V. KUGLER, 110 N. J. Super. 424 (Law Div. 1970), aff'd, 58 N.J. 113 (1971).
A. RUTGERS IS BOUND BY PUBLIC BIDDING REQUIREMENTS BECAUSE THE LAW HAS EVOLVED SINCE RUTGERS, [ THE STATE UNIVERSITY] V. KUGLER, 110 N.J. Super. 424 (Law Div. 1970), aff'd, 58 N.J. 113 (1971) (Count 10).
POINT VI
THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT ON THE CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS, NATALIE CALLEJA AND RICARDO PULIDO, AND FIRST TRANSIT BECAUSE THE COURT IMPROPERLY REMOVED FROM CONSIDERATION BY A JURY THE FACT QUESTIONS OF WHETHER CALLEJA AND/OR PULIDO ACTED OUTSIDE THE SCOPE OF EMPLOYMENT AND WHETHER FIRST TRANSIT'S PULIDO WAS AIDING IN THE COMMISSION OF A TORT (COUNTS 5, 6 & 7).
A. THERE ARE SUFFICIENT FACTS IN THE RECORD TO HOLD CALLEJA, PULIDO AND FIRST TRANSIT LIABLE FOR TORTIOUS INTERFERENCE (COUNT 5).
B. THERE ARE SUFFICIENT FACTS IN THE RECORD TO HOLD CALLEJA, PULIDO AND FIRST TRANSIT LIABLE FOR AIDING IN THE COMMISSION OF A TORT (COUNT 6) AND CONSPIRACY TO COMMIT A TORT (COUNT 7).
In its cross-appeal, Rutgers argues the trial court erred in holding that it violated OPRA and awarding counsel fees to Academy.
I.
Kugler was a declaratory judgment action in which Rutgers sought
a determination that it is not bound by (a) the provisions of N.J.S.A. 52:32-2, which requires the letting of multiple contracts in connection with the construction of public buildings; (b) the provisions of N.J.S.A. 52:35-1 et seq., which requires the prequalification of bidders on such construction projects, and (c) the provisions of N.J.S.A. 52:34-6 et seq., which requires public bidding.
[Kugler, supra, 110 N.J. Super. at 425.]
The trial court carefully reviewed the history of Rutgers and the adoption of the Rutgers, the state university law, L. 1956, c. 61, (codified at N.J.S.A. 18A:65-1 to -102), which demonstrated no legislative intent to include Rutgers within the ambit of the public bidding statutes. Kugler, supra, 110 N.J. Super. at 425-29. The court concluded, "Rutgers is not bound by any of the bidding statutes in question." Id. at 434. The Supreme Court affirmed, "essentially for the reasons" set forth in the Law Division opinion. Kugler, supra, 58 N.J. at 113. See also Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253, 257 n.1 (1982) (citing Kugler and noting the Court had determined that the public bidding statute does not apply to Rutgers); Rutgers, State Univ. of N.J. v. Grad P'ship, 269 N.J. Super. 142, 150 (App. Div. 1993), certif. denied, 135 N.J. 470 (1994).
Nonetheless, Academy argues we should disregard Kugler because the law has evolved since that decision. We are unpersuaded. Academy's argument rests upon an expansive reading of the 2010 Annual Appropriations Act, L. 2010, c. 35, and various executive orders, and falls short of establishing a basis to reject Kugler's holding. The trial court did not err in dismissing count ten.
II.
Academy alleges that Rutgers failed to comply with its own policies and procedures. This allegation forms the premise for its claims of promissory estoppel (count three), violation of due process (count four) and that it was entitled to declaratory judgment holding the FT contract void ab initio. The trial court granted summary judgment, dismissing the promissory estoppel claim based upon its finding that the University's policies did not constitute an enforceable promise. The court dismissed the due process claim on the ground that Academy lacked a constitutionally protected property right. The court denied the declaratory relief sought after concluding Academy did not have a legal entitlement to the relief sought. Academy argues that the trial court erred in each of these rulings. We disagree.
A.
The University's procurement policies and guidelines can be summarized as follows.
The policy includes a "competitive purchasing process" (CPP) section that governs the acquisition of goods and services costing $40,000 and above. The CPP states Rutgers "may use one of a variety of methods of soliciting information and pricing from a supplier to promote a competitive procurement environment." One of the methods, which was used here, is the RFP, described as "a competitive bid solicitation generated by Purchasing used when the requestor wants multiple suppliers to describe how they would address a defined project or task. . . . Price is usually not the single determining factor in evaluating RFPs." The policy describes Vendor Selection as follows:
Rutgers reserves the right to establish competitive and non-competitive negotiated agreements with a vendor when it is in the best interest of the university. Vendor selection shall be made using an evaluative process and shall be based on the total benefits to the university. Consideration will be given to price, level of service, market conditions, and other variables as appropriate. Negotiated agreements with vendors require prior approval of the Director.
The guidelines describe the three phases of the competitive bidding process. In the first phase, "a public bid opening is conducted by Purchasing, [and] the buying staff will make competing bid information available to competitors upon request." In describing this process, Calleja stated that bidders' questions regarding the RFP are submitted in writing and answered in a communication to all bidders so that all have the same information.
After vendors submit their bids, the evaluation phase begins. The guidelines state:
The buyer then reviews the bids in detail. If the buyer has formed a product/service committee to provide operational expertise in the supplier selection process, the buyer will share all bids received with the team members, coordinate the evaluation process, lead the team to a consensus decision, and make the award to the supplier that has offered the "lowest total evaluated cost."Calleja stated that, during this phase, Rutgers communicates directly with individual bidders to "clarify issues or seek additional information" and may request individual presentations from bidders. These communications are typically not shared with other bidders.
Calleja explained that in the third and final phase, the decision-makers (usually, an evaluation committee) select a conditional winner based on a determination of which proposal provides Rutgers the best value. This begins a negotiation period that ends when Rutgers and the bidder agree on a final, binding contract. In the interim, the bids submitted by any other competitors remain "active" and other bidders are not informed a conditional winner has been selected. The rationale for this practice is to enhance the University's bargaining power and, should the need arise, to preserve the University's leverage in negotiations with other bidders.
The guidelines state the following regarding the University's right to reject all bids:
If the director of Purchasing concludes on the basis of all available evidence that a particular bidder appears to be insufficiently responsible to ensure adequate performance, the bid may be rejected, even though it is the lowest bid submitted. The University also retains the right to reject bids when costs are higher than budgetary constraints, when bids do not meet specifications, or when it is in the best interest of the University.
[(Emphasis added).]
The guidelines identify a "bid protest" as "a potential bidder(s)' remedy for correcting a 'perceived' wrong in the procurement process used by the University." When lodged, the protest is to be "communicated to the appropriate buyer for follow-up action."
B.
In Point II, Academy argues the trial court erred in dismissing its promissory estoppel claim, contending genuine issues of material fact existed that precluded summary judgment. "Promissory estoppel is made up of four elements: (1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment." Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008) (citation omitted). "The essential justification for the promissory estoppel doctrine is to avoid the substantial hardship or injustice which would result if such a promise were not enforced." Pop's Cones, Inc. v. Resorts Intern. Hotel, Inc., 307 N.J. Super. 461, 469 (App. Div. 1998) (citation omitted). Academy argues that a factual issue existed here as to whether the University's policies and procedures could constitute the "clear and definite promise" necessary to support its claim. This argument is unpersuasive.
Academy has articulated no promise made by First Transit to support a claim of promissory estoppel.
An example of a "clear and definite promise" is found in Peck v. Imedia, Inc., 293 N.J. Super. 151 (App. Div.), certif. denied, 147 N.J. 262 (1996). In that case, an at-will employment contract offer letter contained the position title, a "detailed position description . . . as well as information on . . . benefits" and an annual salary. Id. at 156 (internal quotation marks omitted). We determined the offer was a "clear and definite promise" for purposes of promissory estoppel. See id. at 165-68. Similarly, in Pop's Cones, supra, we found a "clear and definite promise" in Resorts' offer to lease space to the plaintiff Pop's, followed by advice to Pop's to give notice it would not extend its lease and "pack up [its store] and plan on moving." 307 N.J. Super. at 465, 472. But see Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 480 (App. Div. 1978) (finding no "clear and definite promise" in an "implied undertaking to lend an unspecified amount of money"), certif. denied, 79 N.J. 488 (1979).
In contrast to the cases in which a "clear and definite promise" was found, the promise here consisted of no more than the University's adoption and publication of a competitive bidding process. We do not quarrel with Academy's contention that Rutgers expected prospective vendors would rely upon its policy and guidelines. The key stumbling block to Academy's argument is that the policy itself left far too much to the University's discretion to qualify as a "promise." See E. Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 405 N.J. Super. 132, 147-48 (App. Div.) (holding that a "general expectation" of benefit is insufficient to support a promissory estoppel claim), certif. denied, 199 N.J. 540 (2009).
As the trial court found:
The RFP made scrupulously clear that Rutgers retained the right to reject all
proposals; to consider and accept alternative proposals; to receive bids at the bidders' own risk; to make a contract award in its sole discretion; and to accept "proposals that do not strictly meet the stated requirements if [doing so was] in the best interest of the University."
[(Emphasis added).]
Following our de novo review of the record and arguments, we conclude Academy has failed to show there is a material issue of fact that would permit a jury to find a "clear and definite promise" to support its promissory estoppel claim. See R. 4:46-2(c). Summary judgment was, therefore, properly granted to dismiss this claim.
C.
In Point IV, Academy argues the trial court erred in dismissing its due process claim (count four), pursuant to Rule 4:6-2(e). Applying the same standard as the trial court, Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005) (citation omitted), we review the complaint indulgently, assume the truthfulness of the allegations in the pleadings and afford the complainant every reasonable inference. NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006). The focus of the inquiry at this early stage is upon the adequacy of the pleadings to state a cause of action, not the plaintiff's ability to prove its allegations. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. However, "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 560 (1972). Such property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Ibid.
The trial court dismissed this count on the ground that it failed to allege a legitimate claim of entitlement to the contract. The complaint sets forth extensive excerpts from the University's published policy and guidelines and alleges that the violation of those procedures deprived Academy of property rights. Academy contends that if the contract had not been awarded to First Transit, it would have been "entitled" to the contract. Academy argues it pleaded sufficient facts to support its claim because it was one of only two bidders for the contract. It alleged that the award of the contract to First Transit was a legal impossibility and "Rutgers' plethora of procurement policies secured Academy's interest in equal consideration of its bid in an open and fair contracting process."
These allegations are insufficient to state a claim that will survive a Rule 4:6-2(e) motion because the complaint also includes portions of the policy and guidelines that show Rutgers retained "the right to reject bids . . . when it is in the best interest of the university." Moreover, in our independent review, we can consider the content of documents referred to in the complaint under the Rule 4:6-2(e) standard. See N.J. Sports Prods., Inc. v. Bobby Bostick Promotions, LLC, 405 N.J. Super. 173, 178-179 (Ch. Div. 2007).
Paragraph 2.18 of the RFP states:
The University reserves the right to reject any or all proposals, or to accept a proposal in whole or in part if deemed to be in the best interest of the University to do so.Academy's contention that its pleadings allege a right to the contract is irreconcilable with this language. Consequently, Academy's pleadings failed to allege a constitutionally protected property right, and count four was properly dismissed.
[(Emphasis added).]
D.
Academy also relies upon the University's purported failure to follow its procedures as the basis for its request for a declaratory judgment holding the FT contract void ab initio. It alleges the trial court erred in finding a lack of standing. Again, we disagree.
The DJ Act is remedial legislation designed "to settle and afford [a party] relief from uncertainty and insecurity with respect to rights, status and other legal relations." N.J.S.A. 2A:16-51. To maintain a DJ action, there must be a justiciable controversy between adverse parties, and the plaintiff must have an interest in the suit. Chamber of Commerce v. State, 89 N.J. 131, 140 (1982).
Academy maintains it has standing to assert a claim for declaratory relief under N.J.S.A. 2A:16-53, which states:
A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
Academy argues it has standing because it "is an entity interested in the contract between Rutgers and First Transit, because as the only other bidder for the contract, Academy's 'rights' and 'status' has been affected by the improper contract award to First Transit." Academy's reliance is misplaced.
The DJ Act "cannot be used to decide or declare rights or status of parties upon a state of facts which are future, contingent and uncertain." Chamber of Commerce, supra, 89 N.J. at 140 (quoting Lucky Calendar Co. v. Cohen, 20 N.J. 451, 454 (1956)). Academy was not a party to the contract and, as we have noted, Academy had no "right" to obtain the contract even if it was not awarded to First Transit. At best, the factual allegations underlying this claim are contingent and uncertain, plainly insufficient to support a claim for declaratory relief.
III.
In Point VI, Academy argues the trial court erred in granting summary judgment, dismissing counts five, six and seven against the individual defendants, Calleja, Pulido and First Transit. At the relevant time, Calleja was the Associate Director of the RUPD and Pulido was First Transit's director of new business. The counts in question alleged that the individual defendants conspired to and aided in the commission of a tort and tortiously interfered with Academy's business relationship. Academy argues material issues of fact existed that precluded summary judgment. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
IV.
We next turn to the arguments raised in the appeal and cross-appeal regarding Academy's request for documents and the award of counsel fees.
A.
On October 22, 2010, the day after Rutgers executed the contract with First Transit, Academy made a request pursuant to OPRA and the common law that Rutgers provide "[a]ny and all documents submitted by First Transit in response to [the RFP] any and all documents related to the evaluation of all bids submitted in response to [the RFP]. The University's initial responses are set forth in a letter dated November 4, 2010, from Kimberlee M. Pastva, Compliance Associate for the University's Custodian of Records, to Academy's counsel.
In that letter, Pastva stated she spoke to Academy's counsel on October 26, 2010, seeking clarification. She stated that, as confirmed in an email, the request was clarified to be for:
1) All bid proposal documents submitted by First Transit in response to [the RFP] and 2) all bid evaluations and scoring sheets regarding First Transit and Academy for [the RFP].
Pastva received a further clarification from Academy's counsel on October 27, 2010, requesting:
[A]ll documents, including, but not limited to bid evaluations and/or scoring sheets, used
and/or relied upon in consideration of all bids for, and the award of the contract under, [the RFP]. Additionally, please provide a copy of any correspondence between Rutgers and First Transit in relation to [the RFP] and the award of the contract under [the RFP].
Pastva's November 4 letter separated the request into three categories of documents: bid proposals, evaluations and correspondence.
As to the request for bid proposals, Pastva stated Rutgers had two responsive documents, the proposals from First Transit and Academy. The letter explained that pages 232, 236 and 240 of First Transit's proposal were redacted to remove financial information submitted by First Transit pursuant to the exemption of "proprietary, commercial or financial information obtained from any source" from the definition of government records subject to disclosure. N.J.S.A. 47:1A-1.1. The described documents were provided with the November 4 letter.
Addressing the request for evaluative material, Pastva cited the exemption of "inter-agency or intra-agency advisory, consultative, or deliberative material" from the definition of government records, N.J.S.A. 47:1A-1.1, and stated:
RFP evaluation documents, including scoring sheets and bid evaluation, are considered (and are comprised of) inter- and intra- departmental documents, memoranda or letters which are considered part of the University's "predecisional" privilege and/or "deliberative process" privilege. See Educ[.]
Law [C tr .] v. New Jersey Dept. of Educ[.], 198 N.J. 274 (2009). RFP evaluation documents are thus advisory, consultative and deliberative and are specifically excluded from the definition of "government record" under OPRA. Accordingly, because these documents are exempt from OPRA, your request is denied.
Finally, Pastva addressed the request for "any correspondence between Rutgers and First Transit in relation to [the RFP] and the award of the contract under [the RFP]." Noting that "a request under OPRA must specifically describe the document sought," she stated, "[a] blanket request for a class of various documents is not a request for specific identifiable documents, and a custodian is not required to conduct research to locate records potentially responsive to a request." Accordingly, the request was denied.
The letter further advised that Academy could appeal the denials to the Government Records Council (GRC) or file a lawsuit as provided by OPRA. A brochure explaining the appeal procedure was provided with the letter.
Academy did not appeal the denials to the GRC. Instead, by letter dated November 8, 2010, Academy's counsel wrote to Pastva that the University's "decision to withhold certain records violates OPRA." Academy "renew[ed]" its request for the following:
(a) "all documents, including, but not limited to bid evaluation and/or scoring sheets, used and/or relied upon in consideration of all bids for, and the award of the contract under [the RFP]" (hereinafter referred to as the "Evaluation Documents");
(b) "a copy of any correspondence between Rutgers and First Transit in relation to [the RFP] and the award of the contract under [the RFP]" (hereinafter referred to as "the Corresponding Documents").
The letter went on to challenge the University's reliance on the deliberative privilege as misplaced, contending the privilege is "narrowly construed in favor of the requestor and applies only to those documents which: (1) are 'pre-decisional' and (2) reflect 'opinions, recommendations, or advice about agency policies.'" Academy stated further that the privilege was not available "where there exists a compelling need for the materials which overrides the public entity's interest in non-disclosure as is present here." Academy's counsel stated, "With respect to this matter, there is certainly such a need as our client is in the middle of a Protest on the award of this contract to another bidder." Counsel reiterated, "[T]he need for confidentiality is clearly outweighed by the requestor's need for documents. I requested these documents on behalf of my client in order to ascertain the propriety of Rutgers [sic] decision to award the contract to First Transit."
The letter from Academy's counsel also challenged the denial of access to the correspondence, maintaining the request provided adequate specificity. Notably, Academy did not challenge the production of the bid proposals or register any objection to the redaction of financial information from First Transit's proposal.
After consulting with General Counsel, Pastva responded by letter dated November 15, 2010. She provided further explanation for the University's denial of the request for evaluation documents. Noting that the November 8 letter made the same request, for the first time, under the common law right of access, Pastva stated the request for evaluation documents was denied in response to that request as well. In response to the correspondence request, Pastva provided 197 pages of documents as well as the RFP and a handout from First Transit's presentation of its proposal.
Once again, the letter advised of the procedure to be followed to appeal from the denials. However, Academy did not appeal to the GRC. Instead, it included claims that Rutgers violated OPRA and the common law right to access as the first two counts in the complaint it filed seeking to set aside the FT contract. And later, after discovery was complete, Academy moved for summary judgment on these claims. Summary judgment was granted in February 2012, approximately thirteen months after the OPRA claim was asserted in Academy's complaint.
B.
Having reviewed the record, we conclude the procedure followed by Academy to challenge the denial of its OPRA requests was at odds with N.J.S.A. 47:1A-6, which requires that OPRA proceedings "proceed in a summary or expedited manner."
This means that a trial court is to proceed under the procedures prescribed in Rule 4:67. R. 4:67-1(a). The action is commenced by an order to show cause supported by a verified complaint, and at an initial hearing, if the court is "satisfied with the sufficiency of the application, [it] shall order the defendant to show cause why final judgment should not be rendered for the relief sought." The court must try the case at the return date of the order to show cause "or on such short day as it fixes."See also Mason v. City of Hoboken, 196 N.J. 51, 66 (2008); Tractenberg v. Twp. of West Orange, 416 N.J. Super. 354, 365 (App. Div. 2010).
[MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 550-51 (App. Div. 2005) (quoting Courier News v. Hunterdon Cnty. Prosecutor's Office, 358 N.J. Super. 373, 378 (App. Div. 2003)) (citations omitted).]
Because the OPRA claim is governed by Rule 4:67-2(a), the record is not "to be supplemented by depositions or other forms of discovery." MAG, supra, 375 N.J. Super. at 551. As we observed in MAG, "[P]rotracted discovery is simply not suitable, and, absent legitimate need, is not permissible in actions, like OPRA proceedings, that are inherently summary by nature and expedited in manner." Id. at 552.
In contrast to the required procedure, the OPRA claim here was disposed of through summary judgment, after discovery was complete. The trial judge concluded that Rutgers "properly withheld access to advisory, consultative, or deliberative material," and also properly withheld First Transit's proprietary data. Academy has not appealed either of those rulings.
Despite its conclusions that access to the documents in these categories was properly denied, the court found that Rutgers violated OPRA because it had not described the withheld documents sufficiently. The court stated, "[T]he nature of [the University's] assertion" that it redacted information "it deemed to be 'proprietary commercial or financial'. . . . was not properly or reasonably described," and "Academy could not therefore ascertain the propriety of the assertion of privilege."
The trial court did not set forth an independent basis for granting summary judgment to Academy on the common law right of access claim. --------
The trial judge's measure of the lack of reasonable clarity -- that Academy could not "ascertain the propriety of the assertion of the privilege" to the redaction of First Transit's proprietary information -- is belied by the record. Pastva's first letter to Academy's counsel identified the exemption asserted and the specific pages of First Transit's proposal that were redacted. Significantly, because the pages immediately preceding the redactions were provided, it was evident that the redacted materials were First Transit's financial statements for 2008, 2009 and 2010. It is also clear that Academy accepted the University's assertion of the exemption as valid because it never challenged it or appealed from the trial judge's ruling that Rutgers properly withheld that information. In addition, we note the court did not cite authority that supports the principle that, notwithstanding the proper withholding of a document, a perceived shortcoming in the description of what was properly withheld would be sufficient to find a violation of OPRA.
The judge also found an OPRA violation in the University's response to the request for all correspondence with First Transit. He stated, "Rutgers was required to search records for copies of all correspondence between it and First Transit in relation to the RFP. It did not do so. It did not articulate clearly which documents were withheld."
In this appeal, Rutgers contends Academy received all the documents it had requested, except for the deliberative materials and redacted financial information, with its November 15 response before the lawsuit was filed. Academy counters that the production of these documents did not satisfy the University's obligation, noting that "16,394 pages of documents [were] produced as a result of and during litigation . . . which were produced in response to document demands that mirrored the OPRA requests."
Academy's argument highlights the confusion caused by the fact its OPRA claim was permitted to proceed with the amalgam of claims alleged in its complaint as opposed to the summary fashion required by Rule 4:67-1(a). From its first "renewal" of its request for documents, Academy has contended it had a "compelling" need for the requested documents for use in its protest of the FT contract that "overrides the public entity's interest in non-disclosure." Similarly, in support of its contention that additional fees should have been awarded, Academy argued that "discovery on the non-OPRA counts is what revealed the OPRA violations in the first place." This view subverts the purpose of both OPRA and the common law right to disclosure.
"OPRA's purpose is 'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason, supra, 196 N.J. at 64-65 (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). That purpose is separate and distinct from the obligation to respond to discovery requests in litigation.
OPRA is a public disclosure statute and is not intended to replace or supplement the discovery of private litigants. Its purpose is to inform the public about agency action, not necessarily to benefit private litigants. That is, a party's status as a litigant does not enlarge its access to public records under OPRA. The private needs of the requesting party for information in connection with collateral proceedings play no part in whetherThus, the fact that additional documents were produced in response to discovery requests during litigation has no relevance to a determination as to whether documents were wrongfully withheld under OPRA.
the request is proper or whether the disclosure is warranted.
[MAG, supra, 375 N.J. Super. at 545-46.]
The scope of the University's obligation to produce documents under OPRA is established by the definition of "government record" contained in N.J.S.A. 47:1A-1.1. Significantly, "OPRA only allows requests for records, not requests for information." Bent v. Twp. of Stafford Police Dept., Custodian of Records, 381 N.J. Super. 30, 37 (App. Div. 2005). The requirement that an OPRA request must specifically describe the document sought shields government officials from the use of OPRA to force them "'to conduct research among its records.'" Ibid. (quoting MAG, supra, 375 N.J. Super. at 546).
The request here was for "any correspondence between Rutgers and First Transit in relation to [the RFP] and the award of the contract under [the RFP]." In initially denying the request, Pastva stated, "[A] blanket request for a class of various documents is not a request for specific identifiable documents, and a custodian is not required to conduct research to locate records potentially responsive to a request." However, Rutgers later supplied some responsive documents after Academy's renewal of its request. The sufficiency of this response was to be measured against the definition of "government record" contained in OPRA, not against the documents ultimately provided in discovery.
In addition, the standard applied by the trial judge exceeded that required by OPRA. "Under OPRA, agencies are required to disclose only 'identifiable' governmental records not otherwise exempt. Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein." MAG, supra, 375 N.J. Super. at 549. In contrast, the judge stated Rutgers was "required to search records for copies of all correspondence between it and First Transit in relation to the RFP." (Emphasis added). The court's finding that Rutgers violated OPRA regarding this request was based upon its failures to conduct such a search and "articulate clearly which documents were withheld." Plainly, a requirement to identify what documents were "withheld" with such particularity would oblige the custodian of records to conduct a search on a scale not contemplated by OPRA.
We therefore conclude that the trial judge erred in finding that Rutgers violated OPRA and the common law right of access and reverse the order granting summary judgment to Academy on those claims. As a result, we need not address the quantum of the attorney fees and vacate that award.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION