                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0532-12T4


ERNEST BOZZI,

     Plaintiff-Respondent,               APPROVED FOR PUBLICATION

v.                                           January 7, 2014

                                           APPELLATE DIVISION
CITY OF ATLANTIC CITY,
RHONDA WILLIAMS, RMC, AND
WILLIAM M. ENGLAND, P.E.,
CITY ENGINEER,

     Defendants-Appellants.
_______________________________

         Argued August 6, 2013 - Decided January 7, 2014

         Before Judges Messano,1 Lihotz and Guadagno.

         On appeal from the Superior Court of New
         Jersey,   Law  Division, Atlantic County,
         Docket No. L-1588-12.

         George N.      Polis   argued    the   cause    for
         appellants.

         Donald M. Doherty, Jr., argued the cause for
         respondent.

     The opinion of the court was delivered by

LIHOTZ, J.A.D.




1
   Judge Messano did not participate in oral argument.          He joins
the opinion with counsel's consent. R. 2:13-2(b).
      Defendants, the City of Atlantic City, the city's municipal

clerk Rhonda Williams, and the city engineer William M. England,

P.E. (collectively defendants), appeal from a Law Division order

concluding plaintiff Ernest Bozzi suffered a violation of the

Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.                            The

trial      court       entered      judgment      for    plaintiff      and   awarded

attorney's fees.             The judge rejected defendants' argument that

the   absence      of    a    written     OPRA    request    obviated    plaintiff's

recovery under the statute and also that the cost charged for

providing plaintiff with a bid package for a city project was

subject     to     the   Local     Public   Contracts       Law   (LPCL),     N.J.S.A.

40A:11-1 to -51.

      We    reverse,         in   part,   concluding      plaintiff's    failure     to

satisfy OPRA's requirement for a written record request is fatal

to recovery under the statute.                    Further, we affirm the order

denying the claimed exception under the LPCL, concluding the

requested        bid     specifications          are    government   records,       not

otherwise excepted from OPRA's fee limits.

      On February 3, 2012, plaintiff requested 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.

Plaintiff went to Williams's office.                    Williams is designated as




                                            2                                 A-0532-12T4
the official records custodian of Atlantic City.                          There, a staff

member    directed       plaintiff       to       the     city      engineer's       office.

Plaintiff      then    presented     his      request         to   a   staff    member      in

England's office.         Plaintiff asserted the staff member told him

an OPRA form was "not necessary."                    That same day, plaintiff was

provided with the sixty-nine page bid specification package and

charged a flat fee of twenty-five dollars, which he paid.

       Plaintiff filed an order to show cause and a three-count

complaint,     alleging    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 asserted 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 $21.55,2 along with counsel fees and costs.

       The matter proceeded summarily.                   Defendants filed an answer

and    responding      certifications.             Williams        detailed    the    City's

OPRA policy and stated no OPRA request was filed by plaintiff.

England     explained      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


2
    Plaintiff's complaint requested                      $21.80,       which    was     later
acknowledged as a mathematical error.



                                              3                                      A-0532-12T4
experienced      in    their   respective        fields."          Oral       argument      was

held, and supplemental briefs submitted.

    The     Law    Division     judge      issued       a    written      opinion.           He

determined defendants violated OPRA, after finding the requested

"public records . . . were public bid specifications pursuant to

N.J.S.A.    40A:11-23.1,       not   competitive             contract      proposals         as

contemplated by N.J.S.A. 40A:11-4.5."                       Accordingly, the judge

concluded    the       $25   "blanket     fee     for       distribution         of    public

bidding documents under N.J.S.A. 40A:11-23[.1]" was unlawful as

charges were subject to the copying limits of N.J.S.A. 47:1A-

5(b).      Judgment      was   entered     for    plaintiff        as     a    "prevailing

party," along with counsel fees in an amount to be set pursuant

to N.J.S.A. 47:1A-6.            A subsequent counsel fee petition was

considered,      and    plaintiff    was       awarded      $10,096.05.           The      same

order    enjoined       defendants       from    future       OPRA      violations          and

specifically       restrained     the      imposition         of    a     flat    fee       for

provision of bid specifications.                This appeal ensued.

    Defendants argue plaintiff's failure to submit a written

OPRA request is fatal to relief under the statute.                                Further,

defendants maintain the provision of bid specifications falls

outside OPRA's scope and is governed by the LPCL.

    In     our    examination       of    these     issues,        we     must    consider

certain legal principles.            First, we note the applicability of




                                           4                                          A-0532-12T4
OPRA is a legal question.     K.L. v. Evesham Twp. Bd. of Educ.,

423 N.J. Super. 337, 349 (App. Div. 2011), certif. denied, 210

N.J. 108 (2012).   "A trial court's interpretation of the law and

the legal consequences that flow from established facts are not

entitled to any special deference."     Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).      Whether a

municipality appropriately responded to a record request and the

manner the request was effectuated are legal issues subject to

our plenary review.    Sussex Commons Assocs., LLC v. Rutgers, 416

N.J. Super. 537, 548 (App. Div. 2010), rev'd on other grounds,

201 N.J. 531 (2012).

    Second, in undertaking our review,

         we are guided by the rules governing
         statutory interpretation.   Primarily, "[i]n
         interpreting a statute, our role 'is to
         determine and effectuate the Legislature's
         intent.'"   Allen v. V & A Bros., Inc., 208
         N.J. 114, 127 (2011) (quoting Bosland v.
         Warnock Dodge, Inc., 197 N.J. 543, 553
         (2009)). We are obligated to glean the
         Legislature's intention from the words of
         the statute, giving them their ordinary
         meaning. Burnett v. Cnty. of Bergen, 198
         N.J. 408, 421 (2009); see also N.J.S.A. 1:1-
         1 (stating a statute's "words and phrases
         shall be read and construed with their
         context" and "given their generally accepted
         meaning"). "To that end, 'statutes must be
         read in their entirety; each part or section
         should be construed in connection with every
         other   part   or  section   to   provide  a
         harmonious whole.'"     Burnett, supra, 198
         N.J. at 421 (quoting Bedford v. Riello, 195
         N.J. 210, 224 (2008)).



                                 5                        A-0532-12T4
            [Newark Morning Ledger Co. v. N.J. Sports &
            Exposition Auth., 423 N.J. Super. 140, 159-
            160 (App. Div. 2011).]

See also Waterfront Comm'n of N.Y. Harbor v. Mercedes-Benz of N.

Am., Inc., 99 N.J. 402, 414 (1985) (holding our construction is

guided by consideration of individual statutory components in

the context of the entire enactment).                   "Statutes that deal with

the same matter or subject matter should be read in pari materia

and   construed     together      as    a   unitary     and     harmonious     whole."

Shelton    v.   Restaurant.com,         Inc.,     214    N.J.    419,    438     (2013)

(quotation marks and citations omitted).

      Finally,      we   are    "guided     by    the    legislative      objectives

sought to be achieved by the statute."                        Id. at 429 (citing

Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572

(2012)).    The legislative purpose in enacting OPRA was to assure

ready access to government records "for inspection, copying, or

examination by the citizens . . . ."                    N.J.S.A. 47:1A-1.         "OPRA

was specifically designed 'to maximize public knowledge about

public affairs in order to ensure an informed citizenry and to

minimize the evils inherent in a secluded process.'"                            Newark

Morning    Ledger    Co.,      supra,   423     N.J.    Super.    at    160   (quoting

Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581,

588 (2011)).




                                            6                                  A-0532-12T4
    Defendants    initially   maintain   the   trial   judge   erred   in

concluding OPRA applied to these facts because plaintiff did not

submit a written OPRA request.        Also, because "the most basic

yet procedurally necessary element of an OPRA claim is lacking,"

defendants conclude the attorney fee award must be set aside.

    Defendants advanced this argument before the trial judge,

who determined:

              While [p]laintiff's [c]omplaint makes
         reference to "an OPRA request" and there is
         some muddled discussion regarding whether
         one was partially prepared, it's clear from
         the     submissions      of     counsel   and
         [c]ertifications that a written OPRA request
         form   was   never   formally   completed and
         submitted   to   the    [defendants]   by the
         [p]laintiff.

              . . . .

         While it is true . . . "all requests for
         OPRA records must be in writing" that
         doesn't end the discussion but, rather,
         merely begins the conversation that the
         [c]ourt and counsel must have on the issues
         raised by this litigation. Whether . . . a
         claim by a citizen is an "OPRA case" is not
         determined by whether . . . an OPRA form is
         utilized.   The fee guidelines of OPRA are
         not triggered by the use [of] an OPRA form
         prepared by a municipality but, rather,
         whether . . . the fees assessed to a member
         of the public are lawful, i.e., established
         by a particular statute authorizing the same
         or whether there are no guidelines, in which
         case OPRA guidelines must control.




                                  7                             A-0532-12T4
     The judge concluded plaintiff's document request was for a

public   record,    triggering    OPRA's       copying    cost   limitations,     a

conclusion defendants argue is erroneous.

     In pertinent part, OPRA provides:

                 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 requirement for a written request is not gratuitous.

See Renna v. Cnty. of Union, 407 N.J. Super. 230, 232 (App. Div.

2009) ("We hold that all requests for OPRA records must be in

writing[.]").      The detailed process set forth in subsection (g),

as   well     as   the   other     subsections       of    N.J.S.A.      47:1A-5,

purposefully devises a uniform procedure to be followed by one

making a request for government records and one responding to

that request.      "Various provisions in the statute are designed

to   foster    cooperation       among       requestors    and     agencies     and

reasonably    accommodate    their       interests."       Mason    v.   City    of

Hoboken, 196 N.J. 51, 66 (2008).              The writing requirement gives



                                         8                               A-0532-12T4
the government entity a clear understanding of the nature of

what is sought and triggers an obligation to comply with OPRA's

provisions to fulfill the request.

      The Legislature had the option of allowing oral requests.

Indeed, when OPRA was adopted, similar legislation existed in

other states that permitted various means of communicating a

government record request.          See Renna, supra, 407 N.J. Super. at

241 n.4 (providing a survey of state legislation that allows

oral requests for copies of government records).            New Jersey's

Legislature specifically chose not to permit oral requests, and

instead sought to guard against contests over the specifics of

an application by mandating each request "shall be in writing

and   hand-delivered,        mailed,   transmitted   electronically,    or

otherwise   conveyed    to    the   appropriate   custodian."   N.J.S.A.

47:1A-5(g).   See also Paff v. City of E. Orange, 407 N.J. Super.

221, 226 (App. Div. 2009).

      "[C]ourts are not to read into a statute words that were

not placed there by the Legislature."          State v. Smith, 197 N.J.

325, 332 (2009).   We are precluded from "'rewrit[ing] a plainly-

written enactment of the Legislature . . . [or] presum[ing] that

the Legislature intended something other than that expressed by

way of the plain language.'"           Bosland, supra, 197 N.J. at 553

(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).




                                       9                         A-0532-12T4
       In this light, 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.              See Renna, supra, 407 N.J. Super. at

238; see also Evans v. Atl. City Bd. of Educ., 404 N.J. Super.

87, 92 (App. Div. 2008) ("[I]t is appropriate to consider the

doctrine      of    'expressio        unius    est   exclusio         alterius,'          which

suggests that the mentioning of one or more things excludes

others.").

       Plaintiff suggests his written OPRA form was not accepted.

Defendants refute this claim.                 Had plaintiff proven his efforts

to submit an OPRA request were rebuffed, he would certainly have

a basis for relief under the statute, as a governmental entity

may    not    sidestep      its   obligations           to    comply     with       OPRA     by

declining      to     accept      a    written       OPRA          request.          However,

plaintiff's allegations were unsupported by the evidence.                                   The

reviewing judge specifically determined "a written OPRA request

form    was    never       formally         completed        and     submitted       to    the

[defendants] by the [p]laintiff."




                                              10                                     A-0532-12T4
      We also reject plaintiff's argument suggesting subsection

(b)'s   limitation     on    the       charge     for    provision       of   copies    of

government     records    operates       independently           of   subsection     (g),

allowing      recovery,     notwithstanding          the       failure   to   submit      a

written request.       The sections are combined under one statutory

provision, the unitary structure of which must be read together.

Burnett, supra, 198 N.J. at 421.                  As we noted, we may not ignore

the Legislature's deliberate mandate imposing requisites upon

the requester and the record holder.                     Prior opinions addressing

charges for use of self-service copy machines to copy deeds,

mortgages and lien information are inapposite to the facts at

hand.   See Dugan, supra, 376 N.J. Super. at 278.3

      Consequently,       the    determination          that     defendants      violated

OPRA must be reversed.            Further, the order granting an attorney

fee   award    in   favor    of    plaintiff        as     a    prevailing     party    is

unsupported     and   also      must    be   vacated.          Fee    shifting    can   be


3
   We recognize that in Dugan v. Camden County Clerk's Office,
376 N.J. Super. 271 (App. Div.), certif. denied, 184 N.J. 209
(2005), we concluded an OPRA request was triggered, despite the
absence of the submission of a written request.     Id. at 278.
However, the facts of that case presented unique circumstances.
In that matter, the records sought — "deeds, mortgages and other
lien information" — were required to be kept by the county clerk
in a public area, accessible to self-service public users. Id.
at 273, 278.    This case, however, does not present a similar
type of document request, that is, documents mandated to be
accessible for self-service by the public. Therefore, Dugan is
distinguishable on its facts.



                                             11                                  A-0532-12T4
sustained only when the statute applies in the first instance.

Spectraserv v. Middlesex Cnty. Util. Auth., 416 N.J. Super. 565,

583-84 (App. Div. 2010).

       For    completeness,         we    address       defendants'     argument       the

bidding documents are not public records and their provision, as

well as any fee for doing so, is governed by the LPCL, not OPRA.

Additional statutory background will aid understanding.

       The LPCL requires "certain contracts entered into by local

public entities be procured through a public bidding process

detailed      in   that      statute."        Borough    of   Princeton    v.    Bd.    of

Chosen Freeholders of Mercer, 169 N.J. 135, 140 (2001).                                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.                     See N.J.S.A. 40A:11-4.              The

Supreme      Court     has      underscored     the    importance     of   the    unique

public policy concerns of the LPCL, as necessary to "'secure for

the    public      the    benefits       of   unfettered      competition,'      and    to

'guard       against      favoritism,         improvidence,      extravagance,         and

corruption.'"            Nat'l Waste Recycling, Inc. v. Middlesex Cnty.

Improvement Auth., 150 N.J. 209, 219 (1997) (quoting Terminal

Constr.      Corp.   v.      Atl.   Cnty.     Sewage    Auth.,   67   N.J.    403,     410

(1975)).




                                              12                                 A-0532-12T4
      Statutory amendments enacted in January 2000 added N.J.S.A.

40A:11-4.1 to -4.5, which afford public entities an alternative

means of advertising for specific public services.                          Weidner v.

Tully Envtl., Inc., 372 N.J. Super. 315, 318 (App. Div. 2004).

The     competitive    contracting          provisions          recognize         that     a

governmental entity may satisfy a need for services where other

considerations outweigh the public benefit of cost savings.                              The

amendments    reflect       the     Legislature's         intent      to    provide        a

flexible    method    to    award    bids    by    the    use    of   a    scoring       and

evaluation    process,      rather    than    awarding      bids      at    the     lowest

cost.    This process ensures bidding remains fair and free from

fraud.    N.J.S.A. 40A:11-4.4(b).

      Among    the         added     provisions          regarding          competitive

contracting proposals is N.J.S.A. 40A:11-4.5(a), which permits

the contracting unit to charge the greater of $50 or the cost of

reproducing    the    documentation          for    a    request      for     proposal.

Defendants maintain this section also guides a municipality's

fee charged for requests for proposals on bidding contracts,

thus overriding OPRA's payment provisions.

      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.                   See N.J.S.A. 40A:11-3(a),

(b) (exempting contracts that do not exceed $17,500 per contract




                                        13                                        A-0532-12T4
year and do not extend beyond twenty four                      months); N.J.S.A.

40A:11-2 (exempting a number of transactions from the public

bidding requirement, none of which apply here).

      We    concur      with      the     trial     judge's      conclusion      that

plaintiff's request for the bid specifications for the proposed

maintenance     contract     falls      outside    the   specialized   goods     and

services eligible to be obtained through competitive contracting

proposals     identified     in      N.J.S.A.     40A:11-4.1(b).     Further,     we

agree N.J.S.A. 40A:11-4.5(a) is generally inapplicable to all

contracts and is limited to requests for competitive contracting

proposals.      Finally, no provision of the LPCL, which for the

most part was enacted long before OPRA, addresses a fee amount

to   obtain    copies   of     the    contracting     unit's     request   for   bid

specifications.         Accordingly, no provision of the LPCL would

specifically exempt plaintiff's request from OPRA.

      We turn to whether the bid specifications are government

records covered by OPRA.                In determining whether a document

request submitted to a governmental entity is subject to OPRA,

we   analyze     whether       the      material     requested     constitutes      a

government record.

      As   noted,    OPRA    defines      a    government   record   broadly,      to

include

              any   paper,  written  or  printed  book,
              document, drawing, map, plan, photograph,



                                          14                               A-0532-12T4
            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.]

Defendants    rely    on   the    final    sentence       of   this    definitional

provision, which states:           "The terms shall not include inter-

agency or intra-agency advisory, consultative, or deliberative

material."    Ibid.

    The      exception     at    issue    "has     long    been     understood    to

encompass     the    common-law     deliberative          process     privilege[.]"

McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 618 (App. Div.

2010).       "The    deliberative        process    privilege         'permits   the

government to withhold documents that reflect advisory opinions,

recommendations, and deliberations comprising part of a process

by which governmental decisions and policies are formulated.'"

Educ. Law Ctr. ex rel. Abbott v. N.J. Dep't of Educ., 198 N.J.

274, 285 (2009) (quoting In re Liquidation of Integrity Ins.

Co., 165 N.J. 75, 83 (2000)).             "The privilege exists 'to ensure




                                          15                               A-0532-12T4
free and uninhibited communication within governmental agencies

so that the best possible decisions can be reached. . . .'"

McGee, supra, 416 N.J. Super. at 619 (quoting Educ. Law Ctr. ex.

rel. Abbott, supra, 198 N.J. at 286) (citation omitted)).

       The initial burden falls on the governmental entity to show

that the documents it seeks to shield are pre-decisional and

deliberative in nature and contain opinions, recommendations, or

advice about governmental policies.                 Integrity, supra, 165 N.J.

at 88.

       In   order   to   claim    the        protection    of    this   provision,        a

custodian must satisfy two requirements.                   Id. at 84-85.          First,

the custodian must show that the document is "pre-decisional,"

or   "generated     before    the    adoption       of    an     agency's   policy      or

decision."       Id. at 84.         Second, the custodian must establish

that     the   document      is   "deliberative           in     nature,    containing

opinions,      recommendations,         or    advice     about    agency    policies."

Id. at 84-85.

       Guided by this test, it is clear defendants cannot satisfy

these requirements.        While we can agree inter-departmental input

was necessary for the creation of the bid specifications and the

exception might shield any interdepartmental documents exchanged

in   creating    the     final    bid    specification          package,    we    cannot

accede to the suggestion that the final document requested by




                                             16                                  A-0532-12T4
plaintiff     was    pre-decisional               or     deliberative.             The     bid

specifications were intended to be distributed, not protected

from    disclosure.          Consequently,               we     reject     as     unfounded

defendants'        suggestion       the           "advisory,          consultative,           or

deliberative material" exception applies.

       Finding no provision in the LPCL to allow a standard fee

for    defendants'    provision         of     bid      specifications           and,    also,

concluding the documents sought fall within OPRA's encompassing

definition    of    government      records            and    are    not   shielded      by    a

statutory     exception,      we    must          conclude          that   had    plaintiff

submitted a written OPRA request seeking the bid specifications,

defendants' fee for duplication must accord with the limits of

N.J.S.A. 47:1A-5(b), that is, "$0.05 per letter size page or

smaller, and $0.07 per legal size page or larger[,]" or the

"actual costs of duplication."               Ibid.

       We recognize bid specifications may not be the type of

government records the Legislature had in mind when adopting

OPRA.     However,     it    is    up     to      the        Legislature    to     craft      an

exception to OPRA's fee limits for provision of such documents,

not the courts.

       In summary, we affirm the trial court's order finding the

bid    specifications       are    government           records       subject     to     OPRA.

However, we reverse the May 22, 2012 order finding defendants




                                             17                                     A-0532-12T4
violated OPRA and concluding plaintiff is a prevailing party

entitled to counsel fees and costs.    Finally, we reverse the

August 17, 2012 attorney fee award.

    Affirmed in part and reversed in part.




                               18                      A-0532-12T4
