PARSONSINFRASTRUCTURE AND ENVIRONMNENT GROUP, INC v. STATE OF NEW JERSEY, DEPARTMENT OF TREASURY, DIVISION OF PURCHASE AND PROPERTY, SGS TESTCOM, INC and OPUS INSPECTION, INC and APPLUS TECHNOLOGIES, INC
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1893-16T4
PARSONS INFRASTRUCTURE AND
ENVIRONMNENT GROUP, INC.,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT
OF TREASURY, DIVISION OF PURCHASE
AND PROPERTY, SGS TESTCOM, INC.,
and OPUS INSPECTION, INC.,
Defendants-Respondents,
and
APPLUS TECHNOLOGIES, INC.,
Defendant.
____________________________________
Argued December 14, 2017 – Decided February 26, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-1319-16.
Maeve E. Cannon and Wade D. Koenecke argued
the cause for appellant (Stevens & Lee, PC,
attorneys; Maeve E. Cannon and Patrick D.
Kennedy, of counsel and on the briefs; Wade
D. Koenecke, on the briefs).
Roza Dabaghyan, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (Christopher S. Porrino, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Roza Dabaghyan,
on the brief).
Sandy L. Galacio argued the cause for
respondent SGS Testcom, Inc. (Matthew J. Cowan
and Windels Marx Lane & Mittendorf, attorneys;
Matthew J. Cowan and Pasqualino Russo, of
counsel and on the brief).
Jenna M. Beatrice argued the cause for
respondent Opus Inspection, Inc. (Genova
Burns, LLC, attorneys; Jennifer Borek of
counsel and on the brief; Jenna M. Beatrice,
on the brief).
PER CURIAM
Appellant Parsons Infrastructure and Environment Group, Inc.
(Parsons) appeals from the Law Division's partial denial of its
request for public records pursuant to the Open Public Records Act
(OPRA),
N.J.S.A. 47:1A-1.1, and the common law right of access.
Parsons made the request in connection with its protest of
defendant Department of Treasury, Division of Purchase and
Property's (DPP) intended award of the Enhanced Motor Vehicle
Inspection and Maintenance System contract to another bidder. We
affirm.
The following facts are not in dispute. On December 21,
2015, on behalf of the New Jersey Motor Vehicle Commission (MVC)
and the New Jersey Department of Environmental Protection (DEP),
2 A-1893-16T4
DPP issued a Request for Proposal (RFP) for an Enhanced Motor
Vehicle Inspection and Maintenance System (System), RFP No. 16-X-
24049. The purpose of the RFP was to solicit contractor proposals
to implement a next generation motor vehicle inspection and
maintenance system. The RFP provisions specified all the bidding
requirements.
On February 22, 2016, DPP's Proposal Review Unit received
proposals from four contractors, Parsons, the incumbent
contractor,1 and defendants Applus Technologies, Inc. (Applus),2
SGS Testcom, Inc. (SGS), and Opus Inspection, Inc. (Opus). In
accordance with the RFP, DPP's Evaluation Committee evaluated each
bid for conformity with the RFP's requirements, including
consideration of pricing and other factors. On May 13, 2016, DPP
sent a Notice of Intent (NOI) to award the contract to SGS.
According to DPP, Opus' bid ranked second, Parsons' third, and
Applus' fourth.
Upon receiving the NOI, Parsons immediately requested copies
of the proposals submitted by SGS, Applus, and Opus, as well as
the procurement file, pursuant to OPRA, the common law right of
access, and DPP's protest regulations, N.J.A.C. 17:12-1.2. DPP,
1
Parsons had been providing the services since 1978.
2
Applus has not participated in this appeal.
3 A-1893-16T4
in turn, notified the bidders that they had the right to object
to the disclosure of any portion of their proposal and to provide
a detailed statement identifying those sections.
After reviewing the bidders' responses, DPP provided Parsons
with over 3000 pages of information, including redacted copies of
the proposals. Along with the redacted proposals, DPP provided
an exemption log identifying the pages redacted and the specific
reason for the redaction. Quoting the security based exemptions
contained in
N.J.S.A. 47:1A-1.1, DPP notified Parsons that
redactions reflected in the SGS and Opus proposals and appendices
were "asserted by the State" to protect
administrative or technical information
regarding computer hardware, software and
networks which, if disclosed, would jeopardize
computer security; emergency or security
information or procedures for any buildings
or facility which, if disclosed, would
jeopardize the security of the building or
facility or persons therein; and security
measures and surveillance techniques which, if
disclosed, would create a risk to the safety
of persons, property, electronic data or
software[.]
DPP also notified Parsons that in addition to the security-
based exemptions, additional redactions to Opus' proposal were
"based on [Opus'] assertion that the information was trade secret,
proprietary commercial or financial information, and that the
release would give an advantage to competitors . . . ."
4 A-1893-16T4
Additionally, based on the privacy exemption, DPP withheld the
names of the bidders' employees who would be working on the
contract if awarded the bid.
Parsons filed a verified complaint and application for entry
of an Order to Show Cause in the Law Division challenging the
propriety of the redactions under OPRA and the common law right
of access, and seeking injunctive relief and disclosure of the
documents in un-redacted form.3 After hearing oral argument on
August 18, 2016, Judge Mary C. Jacobson decided to conduct an
incamera review of the un-redacted documents, and permitted
defendants to submit certifications explaining why the redactions
were necessary.4
DPP submitted the certification of Joseph Salvatore, the
State's Director of Information Security at the Office of
Information Technology. Salvatore certified that the public
release of "network topology" or "[i]nfrastructure [i]nformation[]
3
Parsons obtained extensions of the bid protest deadline,
initially from DPP and, ultimately, from this court.
4
Relying on N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst,
441 N.J. Super. 70, 105 (App. Div. 2015), aff'd, in part, rev'd, in
part,
229 N.J. 541 (2017), the judge permitted the submission of
"ex parte certifications in order for the State to provide
confidential information that can elucidate their position but
could actually jeopardize the need for confidentiality if it was
released."
5 A-1893-16T4
would provide a blueprint to non-authorized individuals or
organization ([i]ntruders) to compromise information technology
systems and the applications they support." He averred that
"[d]isclosure of [i]nfrastructure [i]nformation could reasonably
result in increased vulnerability of the . . . hardware and
software, and susceptibility to threats from malicious software,
hacking, Zero Day Exploits,5 and social engineering[,]"6 by
providing "a map by which an [i]ntruder can determine the best way
to penetrate the [S]ystem without being detected."
Salvatore explained that "the methods used for physical and
logical security and surveillance" of the System "are designed to
protect personnel, electronic information systems, and related
buildings from natural and environmental hazards and unauthorized
5
According to Salvatore, "[s]pecific components or combinations
of components of hardware, software, and network connections may
have known vulnerabilities called Zero Day Exploits, which are
threats for which the hardware or software vendor has no immediate
defense."
6
Salvatore defined social engineering as
a specific, targeted threat that uses the
knowledge of the deployed hardware, software,
or network components to gain access to
information or compromise the system,
sometimes by the [i]ntruder pretending to be
a person with authority to access the
hardware, software, or network components, or
pretending to be a vendor seeking remote
access to troubleshoot a reported problem.
6 A-1893-16T4
intrusion." According to Salvatore, releasing the "physical and
logical security mechanisms put personnel at risk and compromise
official government documents and data" used by the public.
Release would also
place the [S]ystem in jeopardy due to the fact
that all physical assets including hardware,
workstations, equipment, official motor
vehicle documents . . . , and the processes
used to protect them would become public
knowledge and place the [S]ystem in a
compromised position because would-be
attackers would have access to the techniques
in place to thwart them.
SGS submitted the certification of Christopher Marlow, SGS'
Information Technology Operations Manager, who expressed similar
concerns as Salvatore. Marlow certified "[t]he Security-Related
Redactions" included "detailed information concerning" "[a]nti-
tamper methods;" "[s]ecure document storage;" "[s]ecurity response
protocols;" "[s]ecurity training;" "[v]ideo capture and storage;"
"[w]orkstation security configurations;" "[v]ulnerability
patching frequencies;" "[m]ethodologies for authentication,
authorization and auditing;" "[u]ser access levels;" "[a]dditional
IT auditing;" "IT facility locations;" "[d]ata storage locations;"
"[n]etwork data flows;" "[n]etwork security devices and
protocols;" and "[m]ethods to ensuring data security and client
access." Marlow specified that disclosure of "the Security-
Related Redactions . . . could allow discovered but unpatched
7 A-1893-16T4
vulnerabilities to be exploited by unauthorized parties" as well
as "zero-day exploits" described as "a cyber attack that occurs
on the same day a vulnerability is discovered in an application"
and "exploited before a fix becomes available."
Opus submitted the certification of their president, James
E. Sands, Jr., outlining the "confidential, proprietary and/or
trade secret" information contained in their proposal and
expressly invoking the OPRA exemption. Sands certified Opus'
Visionary High-Efficiency Inspection Process, Wait Time System,
Lane Configuration Plan, and Xpress Test Facility Design: 1) were
"specifically customized for the RFP based on New Jersey property,
building and lane configurations[;]" 2) was "a technical
development . . . known only to Opus" and known only by twenty-
two Opus employees who had signed non-disclosure agreements; 3)
contained information "guarded by Opus under a secure . . . server
requiring user authentication via tracked user name and password"
for access, which information was highly valuable to Opus in future
contracts, would be valuable to competitors, such as Parsons, and
would place Opus "in a position of substantial competitive
disadvantage in [the] industry" if disclosed; and 4) constituted
a system that could not be duplicated by competitors without access
to their proposal.
8 A-1893-16T4
After conducting the incamera review, on October 3, 2016, in
an oral decision, Judge Jacobson denied Parsons "access to the
[]redacted security information because it [fell] within the
protection of the security exemption of OPRA." The judge noted
that under OPRA, the inquiry was limited to determining whether
the documents were public records and whether they fell within an
exemption. She also acknowledged that the agency had the burden
of proving "that the denial was authorized by law[,]" and "there
ha[d] to be a clear demonstration" that non-disclosure was
warranted because "the exemptions should be narrowly construed in
favor of disclosure."
After reviewing the un-redacted records in conjunction with
certifications provided by each vendor and "Salvatore's [twenty-
eight-]page detailed certification . . . [,]" the judge was
satisfied that DPP met its burden and provided "a strong basis for
not providing the documents under OPRA."7 She recognized that the
State was entering into a "very big contract8 of great public
importance" and wanted "to make sure that the processes [were]
7
In this regard, the judge distinguished Salvatore's "detailed
certification" from Gilleran v. Bloomfield,
440 N.J. Super. 490
(App. Div. 2015), rev'd,
227 N.J. 159 (2016), "where the
certification was not sufficiently specific . . . ."
8
SGS' bid was over $136 million, Opus' was over $213 million and
Parson's was over $248 million.
9 A-1893-16T4
secure . . . particularly from . . . threats of cyberterrorism."
She noted that although "the RFP had requested . . . draft security
plans and descriptions of plans as part of the submission[,]" many
of the provisions would be the same in any final plan.
Judge Jacobson carefully scrutinized the State's "very strong
position that to release the . . . security plan and descriptions
of the different aspects of the security plan, would jeopardize
the security of . . . any new motor vehicle system . . . installed
as a result of the contract award." She concluded that the State's
concern about the safety and security of the System was valid and
agreed that nondisclosure was warranted to avoid "cyber attacks"
and "vulnerability to intruders" because knowledge of the
proposals "could provide specific insight to an intruder as to how
to exploit hardware, software, network components, and the
applications they support."
For example, she pointed to "a diagram . . . that explained
how the whole [S]ystem worked . . . and presented a clear security
risk." In addition, "the plan itself explained all of the proposed
security features . . . ." According to the judge, "with the
knowledge contained in the redacted portions[,] an intruder could
remove information footnotes that would be critical for the
operators of the [S]ystem to locate and take proactive measures
to prevent any further . . . incursion into the [S]ystem." She
10 A-1893-16T4
was persuaded that disclosing the proposals "would unnecessarily
compromise the [S]ystem and the data integrity" including the
integrity of the stickers issued to motorists, and "could give a
roadmap to intruders who wanted to circumvent the security and
surveillance measures designed to protect the personnel and the
electronic information systems, the buildings in which the
inspections are being done, and various other intrusions."
Likewise, Judge Jacobson concluded that Parsons was "not
entitled to the redacted material under the common law." She
explained:
To be able to get access to a document
under the common law[,] you have to show that
they [a]re common law public documents, which
is shown in this case because the definition
is very broad . . . .
Parsons clearly has an interest in the
subject matter of the material. . . . [I]t’s
a particularized interest. . . . Parsons is a
disappointed bidder who currently has the
contract, is going to lose a very lucrative
contract, is very concerned that there was a
big disparity in price between SGS and the
Parsons bid amount.
Parsons is concerned that there may be a
deviation from the requirements of the RFP
which would require that . . . the SGS bid be
thrown out. They may want to . . . mak[e] the
same kind of arguments as to the number two
bidder which was Opus . . . .
They filed this litigation to enhance
their chances of making a viable protest or
making the strongest possible protest to
11 A-1893-16T4
submit to [DPP]. So they clearly have a
particularized interest.
So the only thing that's left to do is
the toughest part of any common law analysis
and that's the balancing of the Parsons' right
to access the unredacted material against the
State's interest in preventing disclosure.
Citing the six factors identified in Loigman v. Kimmelman,
102 N.J. 98 (1986), she acknowledged that some of the factors were
not relevant to the case at hand. Instead, she focused on the
first factor, the extent to which disclosure will impede agency
functions, and the resulting impact on the agency's decision
making, reasoning:
[T]here [i]s concern about the decision
making that could be chilled by disclosure
. . . [T]he decision making . . . at stake
here[] is the ultimate decision making of
adopting a security plan for . . . the Motor
Vehicle Inspection Stations and that if this
information was provided, made public, it
would make that decision making more
difficult.
They might have to go away from the
draft, not want to embrace any piece of the
draft because the public would know what
. . . had been proposed and there would be
concern that if they adopted the draft that
there would be the roadmap provided to enhance
the possibility of a cyber attack.
In contrast, she considered the impact of non-disclosure on
Parson's ability to launch a formidable protest, explaining:
Parsons will be limited if the information
that's sought is not turned over to them. And
12 A-1893-16T4
so you have Parsons' . . . effort to protest
which is . . . largely based on the interest
of the company to try to prevail and retain
the contract, but it also has the public
interest because public bidding statutes are
infused with the public interest and you want
to make sure that . . . whichever vendor gets
the contract can fulfill it.
And Parsons is very concerned that how
could . . . SGS fulfill the contract for
. . . the price that they bid. So it's . . .
their own self-interest that they're seeking
to promote but there is also the general
public interest in assuring that the bid was
not defective and they may very well not be
able to do as complete an analysis with the
redactions in this case.
She concluded:
But in light of the Salvatore
certification in which there was the great
detail as to the concerns of the State for
protecting the draft plans of these vendors
to protect the security of any Motor Vehicle
Inspection System ultimately put in place
versus the interest of a particular vendor to
have the fullest possible protest, the [c]ourt
finds that the interest of the State outweighs
the interest of Parsons.
. . . .
[W]hen you're talking about the security of
the State process and the importance of the
integrity of that [S]ystem and the State's
. . . realistic concern that it could be
breached if this information is made public[,]
. . . the balancing goes in favor of the State.
However, relying on the factors enunciated in Burnett v. Cty.
of Bergen,
198 N.J. 408 (2009), to determine whether privacy
13 A-1893-16T4
interests support a redaction, Judge Jacobson ordered the
disclosure of the names of the vendor employees working on the
system, particularly SGS' employees. In so doing, citing
Tractenburg v. Twp. of West Orange,
416 N.J. Super. 354 (App. Div.
2010), she also rejected SGS' invocation of the competitive
disadvantage exception in OPRA. She concluded that "employee
names really don't have the same need for confidentiality as
proprietary information or trade secrets" and there was no
disadvantage "other than pure speculation on the part of SGS" that
"releasing the names would have a competitive disadvantage" as "a
rival could try to hire them away." She noted that SGS' concern
was not the concern the "Legislature had in mind" when enacting
"the competitive disadvantage exception" and there were other
contractual "mechanisms by which SGS [could] protect its employees
. . . ."
On October 11, 2016, Judge Jacobson issued a supplementary
oral decision addressing DPP's redaction of technological
information contained in Opus' proposal based on the trade secret,
proprietary information and competitive disadvantage provisions
of OPRA and the common law, and concluded that Parsons was not
entitled to the information. In determining that the OPRA
exemption applied, she analogized the facts to Commc'n Workers of
14 A-1893-16T4
Am. v. Rousseau,
417 N.J. Super. 341, 358 (App. Div. 2010), and
pointed to
[t]he sworn representation by Opus that it had
spent approximately $70,000 developing this
system to customize it for New Jersey, that
there were a limited number of employees that
had worked on it, . . . that only certain
individuals had access . . . and that Opus
very much believed that it would be a
competitive disadvantage to turn this all over
to one of their competitors, Parsons.
Further, she rejected Parsons' contention that Opus' "lane
configuration" and "wait time system" would have been exposed to
the public anyway. She reasoned that
just seeing it from the outside may not give
the key to the technology that you need to do
it the way that Opus proposes to do it and,
frankly, since Opus, at least at this point,
did not win the contract, it's not at all clear
that . . . anyone will ever see what's been
customized for New Jersey . . . .
Similarly, in addressing the common law right of access, the
judge noted "it's pretty much a similar analysis" as was conducted
at the October 3, 2016 hearing. She acknowledged that "Parsons
has [a] particularized interest" in obtaining the information
sought as a "disappointed bidder[.]" She observed that the
redactions "will not prevent Parsons from doing a protest[,]"
admittedly not "as informed a protest as they wish." She
acknowledged that "while the common law does not have exemptions
the way OPRA does, . . . trade secrets[] are something that's
15 A-1893-16T4
acknowledged under the common law." In balancing the interests,
the judge concluded that "to turn over technology that's been
developed by Opus in the guise of doing a protest to a main
competitor, I think the balance falls in favor of Opus here."
Thus, Judge Jacobson determined that the State had met its burden
and that Opus satisfied the requirements articulated "in the trade
secret and proprietary information case law." She entered a
memorializing order on October 12, 2016, entering judgment "in
favor of [d]efendants, except for release of the names of SGS
employees[,]" and dismissing the complaint with prejudice.
Parsons filed a motion seeking over $57,500 in attorney's
fees and costs as the prevailing party under OPRA,
N.J.S.A. 47:1A-
6. On November 30, 2016, after hearing oral argument, Judge
Jacobson determined in an oral decision that Parsons was "a
partially prevailing party" but substantially reduced the
"inflated" amount sought. She considered the factors delineated
in the case law and the Rules of Professional Conduct 1.5(a),
including the level of success achieved, the type of case, the
complexity of the issues, and the experience level of the
attorneys.
She noted that OPRA litigation was a summary action, involving
"no discovery," and "no trial." In addition, according to the
judge, there was "almost no legal research" and "no legal analysis"
16 A-1893-16T4
in connection with the request for the names and during "oral
argument, the names were hardly mentioned at all." In terms of
the hourly rate, Judge Jacobson reduced the requested rate, finding
that $350 was "an appropriate amount in Mercer County for attorneys
doing OPRA cases, even attorneys with experience." Citing New
Jerseyans for a Death Penalty Moratorium v. Dep't of Corr.,
185 N.J. 137 (2005), "where the critical factor . . . quoted . . .
[was] the degree of success obtained[,]" she reduced the counsel
fee award to $3500 for ten hours plus $50 towards costs because,
in the judge's view, "the level of success . . . in the scheme of
things . . . [was] quite low." A memorializing order was entered
on December 1, 2016, and this appeal followed.
On appeal, Parsons renews its arguments, arguing that the
"trial court improperly affirmed DPP's blanket redactions to SGS'
and Opus' bid proposals based on OPRA's security exemptions
. . . ." Parsons also challenges the trial court's denial of
access under the common law. Parsons argues that "DPP's expansive
redactions are contrary to controlling law, which has expressly
rejected the imposition of blanket security redactions to public
bidding documents." Parsons also challenges DPP's reliance on
"Opus' contention that the [technological] information was exempt
from disclosure under OPRA as confidential trade
secret/proprietary information" as well as under the common law.
17 A-1893-16T4
According to Parsons, if Opus was awarded the contract, their
systems and processes would have been "visible to millions of New
Jersey motorists as they pass through the inspection process[,]"
thereby defeating their trade secret protection. Lastly, Parsons
argues that the trial court erred in granting it "nominal
attorneys' fees and costs under OPRA's mandatory fee-shifting
provision," and urges us to "grant Parsons' full application
. . . ."9 Like the trial judge, we reject Parsons' arguments and
affirm substantially for the reasons stated in Judge Jacobson's
comprehensive and well-reasoned oral decisions. We add only the
following comments.
We exercise de novo review of the trial court's interpretation
and application of OPRA. Paff v. Ocean Cty. Prosecutor's Office,
446 N.J. Super. 163, 175 (App. Div.), certif. granted,
228 N.J.
403 (2016). In doing so, we give no special deference to the
trial court's interpretation of the law or its view of the legal
consequences that flow from established facts. Manalapan Realty,
LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995). Likewise,
the standard of review when reviewing a common law right of access
9
Parsons also argues for the first time on appeal that "if this
[c]ourt were to grant Parsons access to the subject records under
the common law and not OPRA," Parsons is still entitled to "an
award of reasonable attorney's fees and costs pursuant to [Mason
v. City of Hoboken,
196 N.J. 51 (2008)]." In light of our decision,
we need not address this point.
18 A-1893-16T4
case is generally de novo. Paff,
446 N.J. Super. at 175. However,
"[i]f a court conducts an incamera review of documents and engages
in a balancing of interests in connection with a common-law-based
request to inspect public records, we apply a more deferential
standard of review." Id. at 176; see also Shuttleworth v. City
of Camden,
258 N.J. Super. 573, 588 (App. Div. 1992). Thus,
factual findings should not be disturbed "as long as they are
supported by adequate, substantial, and credible evidence." Paff,
446 N.J. Super. at 175-76.
OPRA mandates that "all government records shall be subject
to public access unless exempt[ed,]"
N.J.S.A. 47:1A-1, and places
the burden of establishing an exemption on the government,
N.J.S.A. 47:1A-6, to provide a specific reason for withholding a
government record. Newark Morning Ledger Co. v. N.J. Sports &
Exposition Auth.,
423 N.J. Super. 140, 162 (App. Div. 2011). Under
OPRA, a "government record" is defined in
N.J.S.A. 47:1A-1.1, and
clearly encompasses the documents that are the subject of this
dispute. Nevertheless, OPRA provides safeguards in the form of
exemptions from disclosure to protect confidentiality and
security, including
administrative or technical information
regarding computer hardware, software and
networks which, if disclosed, would jeopardize
computer security;
19 A-1893-16T4
emergency or security information or
procedures for any buildings or facility
which, if disclosed, would jeopardize security
of the building or facility or persons
therein;
security measures and surveillance techniques
which, if disclosed, would create a risk to
the safety of persons, property, electronic
data or software. . . .
[Ibid.]
Contrary to Parsons' argument, Gilleran v. Bloomfield,
227 N.J. 159 (2016) does not stand for the proposition that all
security information in a public-bidding document should be
released. In Gilleran, our Supreme Court addressed OPRA's security
exemptions, acknowledged that "the exception does not create a
'blanket exception' for all security-system-related material," and
provided examples of information that could be released by noting
"[e]xamples could include public-bidding documents in connection
with acquisition of a security system and documents revealing the
cost of the system." Id. at 173.
However, in exempting from disclosure the security camera
video footage of Town Hall and the adjacent police station
requested under OPRA by the plaintiff in that case, the Court
indicated:
20 A-1893-16T4
Even if neither security exception10 is
meant to operate as a blanket exception, the
Legislature's exceptions—written without
knowing the extent of the public safety
challenges that the future might bring—were
phrased in a way that allows flexibility in
application for security purposes. They
maintain the confidentiality of information
categories when disclosure of the information,
considering the totality of its worth, would
compromise the integrity of a security system
and defeat the purpose to having security
exceptions in OPRA.
. . . .
Current events since the new millennium
make evident the present day difficulties of
maintaining daily security for public
buildings and people using them. The security
exceptions prevent OPRA requests from
interfering with such security efforts. Even
if the Legislature could not have predicted
precisely all the many types of criminal,
terroristic events that have happened since
OPRA was enacted, the Legislature created
flexible exceptions to preserve public safety
and security. Now, we know that knowledge of
the vulnerabilities of a security system could
allow an ill-motivated person to know when and
where to plant an explosive device, mount an
attack, or learn the movements of persons,
placing a public building or persons at risk.
Information that reveals the capabilities and
vulnerabilities of surveillance cameras that
are part of a public facility's security
system is precisely the type of information
that the exceptions meant to keep confidential
in furtherance of public safety.
10
We note that while the Court's focus was on the "emergency or
security information or procedures for any buildings or facility"
and "security measures and surveillance techniques" exceptions to
N.J.S.A. 47:1A-1.1, the analysis applies with equal force to all
three exceptions invoked here. Gilleran,
227 N.J. at 171.
21 A-1893-16T4
[Id. at 173-74.]
We agree with Judge Jacobson's rejection of Parsons'
arguments, albeit without the benefit of the Supreme Court's
decision in Gilleran, which was decided after Judge Jacobson's
ruling. Like Gilleran, Salvatore's certification detailing the
cyber security risks to providing the proposals11 supplied an
adequate basis to support DPP's position that disclosure would
reveal the System's "vulnerabilities" and "security-compromising
information," and was "contrary to the legislative intent
motivating OPRA's exemptions based on security concerns." Id. at
176-77.
OPRA also exempts disclosure of government records relating
to "trade secrets and proprietary commercial or financial
information" and "information which, if disclosed, would give an
advantage to competitors or bidders[.]"
N.J.S.A. 47:1A-1.1.
Courts have recognized that "OPRA does not require an independent
demonstration of confidentiality. Rather, . . . if the document
contains commercial or proprietary information it is not
11
Notably, unlike Gilleran where the township's denial of access
to the video footage was upheld without an "individualized review
and excision" of specific objectionable material contained in the
tapes, here, Salvatore's assessment was based on his scrutiny of
the un-redacted proposals and identification of discrete material
"posing a security risk[.]" Id. at 168-69.
22 A-1893-16T4
considered a government record and not subject to disclosure."
Rousseau,
417 N.J. Super. at 358.
Because OPRA does not define a trade secret, in Rousseau, we
noted that a trade secret "may consist of any . . . compilation
of information which is used in one's business, and which gives
him an opportunity to obtain an advantage over competitors who do
not know or use it." Id. at 361. (quoting Restatement of Torts §
757 cmt. b (1939)). To determine whether trade secret protection
is warranted, courts have generally utilized the test laid out in
Ingersoll-Rand Co. v. Ciavatta,
110 N.J. 609, 637 (1988), focusing
on the following factors:
(1) the extent to which the information is
known outside of the [owner's] business; (2)
the extent to which it is known by employees
and others involved in the [owner's] business;
(3) the extent of measures taken by the owner
to guard the secrecy of the information; (4)
the value of the information to the [owner]
and to [his] competitors; (5) the amount of
effort or money expended [by the owner] in
developing the information; and (6) the ease
or difficulty with which the information could
be properly acquired or duplicated by others.
[Ibid.]
Here, we agree with Judge Jacobson's conclusion that the
redacted technological portions of Opus' bid proposal qualify as
trade secrets under OPRA. As Judge Jacobson poignantly observed,
23 A-1893-16T4
it would be fundamentally unfair to afford Parsons the tools to
duplicate Opus' system under the guise of a bid protest.
Turning to the common law, to obtain a common law right of
access to documents, "the person seeking access must 'establish
an interest in the subject matter of the material,' and . . . the
citizen's right to access 'must be balanced against the State's
interest in preventing disclosure.'" Keddie v. Rutgers,
148 N.J.
36, 49 (1997) (first quoting South Jersey Publ'g Co. v. N.J.
Expressway Auth.,
124 N.J. 478, 487 (1991); then quoting Higg-A-
Rella, Inc. v. Cty of Essex,
141 N.J. 35, 46 (1995)). Thus, the
evaluation involves a two-step inquiry and the burden of proof is
on the public entity to establish that its need for nondisclosure
outweighs the need for disclosure. Educ. Law Ctr. v. N.J. Dep't
of Educ.,
198 N.J. 274, 302 (2009).
When balancing the competing interests, courts consider the
following factors:
(1) the extent to which disclosure will impede
agency functions by discouraging citizens from
providing information to the government; (2)
the effect disclosure may have upon persons
who have given such information, and whether
they did so in reliance that their identities
would not be disclosed; (3) the extent to
which agency self-evaluation, program
improvement, or other decisionmaking will be
chilled by disclosure; (4) the degree to which
the information sought includes factual data
as opposed to evaluative reports of
policymakers; (5) whether any findings of
24 A-1893-16T4
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether any
agency disciplinary or investigatory
proceedings have arisen that may circumscribe
the individual's asserted need for the
materials.
[Id. at 303 (quoting Loigman,
102 N.J. at
113).]
Here, regarding the security redactions, DPP's interest in
maintaining the integrity of the System and the information it is
designed to safeguard outweighs Parsons' interest in a full
protest. Likewise, as to the trade secret redactions, DPP's
interest in maintaining the competitiveness of the bidding process
weighs in favor of nondisclosure.
Regarding the judge's fee determinations, it is well
established that "fee determinations by trial courts will be
disturbed only on the rarest of occasions, and then only because
of a clear abuse of discretion." Packard-Bamberger & Co. v.
Collier,
167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer,
141 N.J. 292, 317 (1995)). "[A]buse of discretion is demonstrated if
the discretionary act was not premised upon consideration of all
relevant factors, was based upon consideration of irrelevant or
inappropriate factors, or amounts to a clear error in judgment."
Masone v. Levine,
382 N.J. Super. 181, 193 (App. Div. 2005).
25 A-1893-16T4
OPRA includes mandatory fee shifting, providing, in pertinent
part, that "a requestor who prevails in any [OPRA] proceeding
shall be entitled to a reasonable attorney's fee."
N.J.S.A. 47:1A-
6. "To be entitled to such counsel fees under OPRA, a plaintiff
must be a prevailing party in a lawsuit . . . that was brought to
enforce his or her access rights." Smith v. Hudson Cty. Register,
422 N.J. Super. 387, 393 (App. Div. 2011). A plaintiff can make
such a showing if records are disclosed "after the entry of some
form of court order or enforceable settlement" granting access.
Mason v. City of Hoboken,
196 N.J. 51, 57, 76-77, 79 (2008)
(citation omitted). Alternatively, under the catalyst theory,
"when a government agency voluntarily discloses records after a
lawsuit is filed[,]" plaintiffs are entitled to counsel fees if
they "can establish a 'causal nexus' between the litigation and
the production of requested records" and "that the relief
ultimately secured by plaintiffs had a basis in law." Id. at 57,
76-77, 79. Under the common law right of access, litigants must
make a similar showing. Id. at 79.
When fee shifting is permissible, a court must ascertain the
"lodestar"; that is, the "number of hours reasonably expended by
the successful party's counsel in the litigation, multiplied by a
reasonable hourly rate." Litton Indus., Inc., v. IMO Indus.,
Inc.,
200 N.J. 372, 386 (2009) (citation omitted). To compute the
26 A-1893-16T4
lodestar, courts must first determine the reasonableness of the
hourly rates charged by the successful party's attorney in
comparison to rates "for similar services by lawyers of reasonably
comparable skill, experience and reputation" in the community.
Rendine,
141 N.J. at 337 (quoting Rode v. Dellarciprete,
892 F.2d 1177, 1183 (3d Cir. 1990)). The court must then determine the
reasonableness of the hours expended on the case. Furst v.
Einstein Moomjy, Inc.,
182 N.J. 1, 21-22 (2004).
"Whether the hours the prevailing attorney devoted to any
part of a case are excessive ultimately requires a consideration
of what is reasonable under the circumstances[,]" and should be
informed by the degree of success achieved by the prevailing party.
Id. at 22-23. "[A] reduction may be appropriate if 'the hours
expended, taking into account the damages prospectively
recoverable, the interests to be vindicated, and the underlying
statutory objectives, exceed those that competent counsel
reasonably would have expended.'" Walker v. Giuffre,
209 N.J.
124, 132 (2012) (quoting Rendine,
141 N.J. at 336). Additionally,
the "trial court should reduce the lodestar fee if the level of
success achieved in the litigation is limited as compared to the
relief sought." Ibid.
Here, Judge Jacobson correctly determined that plaintiff was
a partially prevailing party based on the disclosure of SGS'
27 A-1893-16T4
employee names. In determining the reasonableness of the fees,
the judge considered the requisite factors delineated in the Rules
of Professional Conduct 1.5(a) as well as the level of success in
relation to the overall litigation, and awarded a markedly reduced
amount. Inasmuch as the judge's reasoning is unassailable, we
discern no abuse of discretion.
Affirmed.
28 A-1893-16T4
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