Monthly Archives: May 2019

GRC: OPRA Requires Disclosure Of Bids Submitted By Unsuccessful Bidders

Ruling on what it characterized as a “novel” issue, the GRC recently concluded that OPRA requires the disclosure of the bid documents submitted by the unsuccessful bidders for a public contract. Barth v. Rutgers (2017-121).

The request sought all proposals submitted to Rutgers in response to the RFP for Commencement Photography Services. Rutgers disclosed the winning proposal, but withheld the losing bids, arguing that disclosure would put vendors at a competitive disadvantage and also could lead to collusion among prospective vendors.

In its decision, the GRC noted that while it has upheld the confidentiality of bids during the vendor selection process, neither it nor a court has addressed whether OPRA mandates the disclosure of the losing bids after the contract has been awarded. Despite the novelty of the issue, the GRC engaged in little analysis; it simply stated that it saw no danger of competitive disadvantage or bidder collusion in this situation.

It’s unfortunate that the GRC did not explain the basis for this determination. I think there are strong arguments in favor of maintaining the confidentiality under OPRA of unsuccessful bidders’ documents. Making them automatically public creates a real risk of potential collusion and bid-rigging. And notably, losing bid records are exempt under FOIA. Hopefully, a future court or GRC case will address these concerns.

Appellate Division Again Rejects Attempt To Compel Disclosure of Personnel Records

The Appellate Division recently upheld the denial of an OPRA request for the name of a State Trooper who had been discharged for misconduct. Libertarians for Transparent Govt v. NJ State Police.

This unpublished opinion applied settled law here; there’s simply no question that OPRA prohibits public disclosure of this confidential personnel information. What’s notable about this case is that it provides another example of an ongoing problem I’ve noted previously: some requestors seem to think that OPRA overrides legitimate personal privacy interests.

The requestor here, the Libertarians for Transparent Government organization, seems dedicated to getting a court to declare that OPRA’s personnel exemption is void, at least with regard to law enforcement officers. It argued in this case that OPRA’s exemption for disciplinary information should not apply to law enforcement. And the Appellate Division rejected this group’s similar effort to disregard personnel privacy in another OPRA case last year, involving a prosecutor’s office employee.

Trial Judge Limits Requestor’s Ability To Continue To File OPRA Requests And Litigation

I’ve previously noted that public bodies often have to deal with OPRA requestors who file an excessive number of requests or pursue frivolous OPRA litigation. A recent Appellate Division opinion shows that trial judges have the authority to stop this kind of conduct.

Garcia v. Bergen Prosecutor and NJ OAG involved a requestor who had made a number of invalid OPRA requests, and then litigated the ensuing denials, in connection with his fruitless efforts to overturn his murder conviction. The Appellate Division affirmed the trial court’s denial of his latest OPRA (and common law) requests, which were invalid for a number of reasons.

Of particular interest here, the court also noted that the trial judge had granted the motion of the Bergen Prosecutor’s Office to preclude plaintiff from making future OPRA requests concerning his conviction, without getting court approval. The trial judge determined that, pursuant to a judge’s “inherent authority to prevent the filing of frivolous litigation,” prior court approval of the future filing of complaints was necessary.

The Supreme Court said years ago that the courts have the power to grant applications by public bodies to restrain requestors who file excessive, unreasonable public records requests. The Garcia case and a 2018 case show that some trial courts recognize the need to exercise this power to protect the public against burdensome and frivolous OPRA requests and litigation.