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January 15, 2014

Re: Appellate Division Decision Clarifies OPRA’s Impact on the LPCL

Dear Mayor,

In response to a number of questions regarding a recent court decision, Bozzi v. City of Atlantic City, the League would like to inform you of the possible legal implications of this case.  This case deals with the interplay between New Jersey’s Open Public Records Act (OPRA) and the Local Public Contracts Law (LPCL). In the facts laid out in the opinion, the plaintiff made a verbal OPRA request for bid specifications from the city’s OPRA custodian. He was referred to the City’s engineering office. A staff member in the engineering office told him that an OPRA request was not necessary. A sixty nine page document was provided and the plaintiff paid a twenty five dollar flat fee. Subsequently, the plaintiff brought an action against Atlantic City alleging an OPRA violation.

As an initial matter the Appellate Division stated that OPRA requests must be in writing and that therefore the plaintiff did not make a valid OPRA request. Nevertheless, the court then went on to analyze the appropriateness of charging for these documents under OPRA. Under the LPCL, when a contract is being competitively bid, a contracting unit may charge the greater of fifty dollars or the cost of reproducing the document. N.J.S.A. 40A:11-4.5(a). The city argued that this portion of the LPCL would prevent OPRA from reaching all requests for proposal, even beyond competitive contracting. The court reasoned that because the documents were not related to a competitive contract, this exception would not apply. It also determined that no exception under OPRA would prevent disclosure.

The legal implications of the Appellate Division’s decision in Bozzi is that OPRA requests for bidding documents should be considered accessible under the law. In other words, if an individual makes a valid written OPRA request for a bidding document, and no other statutory exception applies, it must be disclosed. We recommend that you discuss this decision with counsel.

If you have any questions please contact Ed Purcell Esq. at (609) 695-3481 x 137 or epurcell@njslom.org.

Very truly y ours,

William G. Dressel, Jr.
Executive Director

 

 

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