                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1527-18T3

STEVE RAMSHUR,

          Plaintiff-Respondent,

v.

DEPARTMENT OF ENVIRONMENTAL
PROTECTION, MATTHEW J. COEFER,
Records Custodian in the New Jersey
Department of Environmental Protection,

          Defendant,

and

LIBERTY NATIONAL GOLF COURSE,
LLC,1 a New Jersey limited liability
company,

     Defendant-Appellant.
___________________________________

                    Argued December 16, 2019 – Decided February 19, 2020

                    Before Judges Rothstadt and Mitterhoff.


1
 WA Golf Company, LLC was incorrectly designated as Liberty National Golf
Course, LLC.
            On appeal from the Superior Court of New Jersey, Law
            Division, Mercer County, Docket No. L-0831-18.

            Nicole Bianca Dory argued the cause for appellant WA
            Golf Company, LLC (Connell Foley LLP, attorneys;
            Kevin J. Coakley, William Nevins Mc Cann, and
            Nicole Bianca Dory, of counsel; Nicole Bianca Dory
            and Michael J. Affrunti, on the briefs).

            Walter M. Luers argued the cause for respondent.

PER CURIAM

      WA Golf Company, LLC (WA Golf), which operates Liberty National

Golf Club (Liberty National), appeals from a July 25, 2018 order compelling it

to disclose to plaintiff Steve Ramshur the bid it submitted in response to a

November 21, 2017 request for proposals (RFP) issued by the New Jersey

Department of Environmental Protection (DEP). WA Golf also appeals from an

October 22, 2018 order awarding plaintiff attorneys' fees.

      Plaintiff submitted a request to the DEP under the Open Public Records

Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking access to bids submitted in

response to the RFP. Matthew J. Coefer, a DEP records custodian, denied

plaintiff's request, so plaintiff filed an order to show cause and a verified

complaint against the DEP, Coefer, and Liberty National, seeking to compel

disclosure of Liberty National's bid. On July 25, 2018, after a hearing on the

order to show cause, the judge issued an order compelling Liberty National to

                                                                      A-1527-18T3
                                       2
disclose its bid to plaintiff, after determining that the OPRA exemptions did not

preclude disclosure of the bid and that the common law right to access to public

records also mandated disclosure. The judge awarded plaintiff attorneys' fees,

and the parties agreed to an amount in a consent order dated October 22, 2018.

      Liberty National appeals, contending that its bid is protected by various

OPRA exemptions and that plaintiff failed to show that he is entitled to

disclosure under the common law right of access to public records. Having

reviewed the record, and in light of the applicable law, we affirm in part, reverse

in part, and remand for an in camera review to ascertain whether Liberty

National's bid contains information protected by the competitive advantage

exemption, the trade secret and proprietary information exemption, or the

security exemptions.

                                        I.

      We discern the following facts from the record.         In 1983, the DEP

purchased Caven Point, a twenty-one-and-a-half-acre peninsula with a large

stretch of natural beach along the Hudson River in Liberty State Park. Although

Caven Point is accessible from the park and surrounding neighborhoods, it is

isolated from a large section of the park and largely borders the golf course




                                                                           A-1527-18T3
                                        3
operated by Liberty National. The DEP's purchase of Caven Point was partly

funded by the New Jersey Green Acres Bond Act of 1978, L. 1978, c. 118.

      On November 21, 2017, the DEP issued an RFP, "solicit[ing] proposals

from qualified organizations to operate public or private outdoor recreational

amenities within the Caven Point area." The DEP aimed to "advance the use of

. . . Caven Point to provide enhanced public or private recreational amenities

while preserving or enhancing existing public recreational uses, natural

resources, and ecological values of the site." The RFP allowed bidders to submit

a proposal for amenities that would be "reasonably . . . expected to result in a

diversion and/or conversion," provided that the proposal detailed how the bidder

would satisfy an additional compensation requirement.          Regardless of the

proposed use, the DEP could reject any proposal if doing so was in the public

interest.

      The RFP included the following provisions relevant to public disclosure

of submitted proposals and confidentiality during the proposal evaluation and

selection process:

            1.4.6 Contents of Proposal

                  The entire content of every proposal that is
            opened and read shall become a public record,
            notwithstanding any statement to the contrary made by
            a bidder in its proposal. As public records, all proposals

                                                                         A-1527-18T3
                                        4
            are available for public inspection with the filing of an
            [OPRA] request with the [DEP].

                  ....

            6.5   Negotiation and Best and Final Offer (BAFO)

                    After evaluating proposals, the [DEP] may enter
            into negotiations with one bidder or multiple bidders
            . . . . Negotiations will be structured by the [DEP] to
            safeguard information and ensure that all bidders are
            treated fairly.

                  ....

                   All contacts, records of initial evaluations, any
            correspondence with bidders related to any request for
            clarification, negotiation or BAFO, any revised
            technical and/or price proposals, the [e]valuation
            [c]ommittee        [r]eport     and      the      [a]ward
            [r]ecommendation, will remain confidential until a
            [n]otice of [i]ntent to [a]ward a contract is issued.

      On December 22, 2017, Liberty National submitted a bid. On April 9,

2018, plaintiff submitted an OPRA request to the DEP, seeking a "copy of the

entire content of every bid proposal" submitted in response to the RFP. Liberty

National's bid was the only submission.       Three days later, Coefer denied

plaintiff's request, explaining that the competitive advantage exemption, see

N.J.S.A. 47:1A-1.1, exempted Liberty National's bid from public disclosure.

Consequently, on April 19, 2018, plaintiff filed an order to show cause and a

verified complaint against the DEP, Coefer, and Liberty National, alleging he

                                                                        A-1527-18T3
                                       5
was denied access to Liberty National's bid in violation of OPRA and the

common law right of access to public records. He requested disclosure of the

bid and an award of attorney's fees.

      Meanwhile, in a letter dated May 3, 2018, the DEP rejected Liberty

National's bid as "materially nonresponsive to a number of essential

requirements." In explaining the bid's deficiencies, the DEP identified some of

Liberty National's proposed terms, including rent payments and the amount of

compensation it would pay for deviating from the requirement that Caven Point

be used for recreational purposes. The rejection letter "also serve[d] as notice

that the DEP has exercised its right, in its sole discretion, to reject all bids,

responsive or otherwise, and not to pursue the project at this time." The DEP

did not know whether it would "re-bid the same or similar RFP."

      In opposition to plaintiff's order to show cause, Liberty National's chief

financial officer (CFO) certified that, as part of its bid, "Liberty National

submitted confidential and sensitive business documents and infor mation,

including proprietary information related to [its] business operations and

financial viability." These documents were relevant to both its strategy in

competing for the RFP and "its continued viability as a prominent, private golf

course." He identified the following documents contained in the bid, which he


                                                                         A-1527-18T3
                                       6
asserted revealed Liberty National's financing and business operations:             a

certified financial statement; an asset confirmation letter; a draft proposed leas e

agreement that included proposed monetary lease terms, a budget proposal,

insurance policy terms, and confidential information revealing construction and

design plans; an expert valuation of Caven Point; business registration forms;

stock ownership forms; revenue summaries from past events; proposed

operating and maintenance hours for Caven Point; advertising and marketing

proposals; "[s]ensitive security information . . . developed in conjunction with

multiple federal and state law enforcement agencies;" and liquor license

information. He claimed that disclosure of this information "would impair the

ability of Liberty National to compete for the subject RFP should [the] DEP

decide to reissue the RFP . . . . and would hinder Liberty National's ability to

stay competitive amongst other golf courses in the region," specifically with

regard to hosting the PGA TOUR.

      The chief operating officer (COO) of PGA TOUR Golf Course Properties,

Inc., a subsidiary of PGA TOUR, also opposed plaintiff's order to show cause.

He certified that "Liberty National is currently under a long[-]term contract with

the PGA TOUR through which it is a recognized championship golf course with

an obligation to maintain its existing golf course in exchange for its right to host


                                                                            A-1527-18T3
                                         7
future professional golfing events." Liberty National "routinely design[s] and

re-design[s] [its] . . . course[] in order to . . . compete for the right to host certain

championship golfing events." The COO further certified that the PGA Tour's

"professional engineers, architects and other professionals collaborate with

[Liberty National] and its engineers, architects, and other personnel in order to

facilitate the proper design, construction and management of its projects in

accordance with the necessary PGA TOUR standards." These designs "are kept

confidential by and between the PGA TOUR and Liberty National." The COO

claimed that disclosure of Liberty National's "golf course designs, construction

plans, and security information would cause irreparable harm to the PGA

TOUR's ability to maintain the integrity of its business relationships, as well as

the safety of its patrons."

      On July 24, 2018, the judge heard oral argument, after which she issued

an oral decision compelling Liberty National to disclose its bid to plaintiff. She

largely relied on section 1.4.6 of the RFP, which provided that "every proposal

. . . shall become a public record . . . available for public inspection with the

filing of an [OPRA] request." She added that section 6.5 of the RFP did not

protect the bid because the DEP rejected it as nonresponsive, and there was no

evidence that the DEP negotiated with or contemplated negotiating with Liberty


                                                                                A-1527-18T3
                                           8
National. The judge then discussed the OPRA exemptions in light of section

1.4.6, although she conducted no in camera review to ascertain the nature of the

bid's contents.

      The judge found that the record did not support a finding that

nondisclosure was warranted to prevent unfair competitive advantage.

According to the judge, that Liberty National's bid was the only submission

"undercut the claims that there would be a competitive disadvantage," but even

if there had been other bidders, Liberty National's bid would not have been

useful because Liberty National was in a unique position as the operator of the

golf course on the adjacent property. As to the concern about PGA TOUR

competitors gaining a competitive advantage, the judge found that the impact of

disclosing the bid was speculative, since it would have become public if the DEP

had awarded the project to Liberty National. Likewise, the judge found that

Liberty National's bid did not contain trade secrets, finding persuasive the lack

of measures Liberty National took "to guard the secrecy of the information."

      Next, the judge addressed N.J.A.C. 7:1D-3.2(c), which exempts "[r]ecords

related to Green Acres . . . land acquisitions, program offerings, and active

projects" when the "land transaction, program offering, or active project is

actively under negotiation." She found that the exemption did not apply because


                                                                         A-1527-18T3
                                       9
there was no longer an active project, as the DEP had stopped pursuing the RFP

and indicated no probability of pursuing the same project in the future.

      Lastly, the judge addressed the common-law right to access government

records. Upon balancing the parties' interests, she determined that the interest

in public access to Liberty National's bid was greater than the DEP's interest in

nondisclosure, due to section 1.4.6 of the RFP.

      On July 25, 2018, the judge issued an order compelling Liberty National

to disclose its bid to plaintiff. She also ordered the parties to resolve the matter

of attorney's fees. On July 31, 2018, the parties signed a consent order, staying

disclosure pending disposition of an appeal. On October 22, 2018, the parties

signed a consent order, in which they agreed that the DEP would pay plaintiff's

attorney $10,000 "in full and final satisfaction of [p]laintiff's claim for counsel

fees." Payment was stayed pending disposition of an appeal, and the parties

agreed that any party "may file an appropriate application to modify the counsel

fee" if the July 25 order was modified or reversed on appeal. This appeal ensued.

      On appeal, Liberty National contends that the judge erred in failing to

adequately consider the OPRA exemptions after she improperly concluded that

section 1.4.6 of the RFP mandated disclosure of Liberty National's bid. Liberty

National also contends that plaintiff made an inadequate showing that he is


                                                                            A-1527-18T3
                                        10
entitled to disclosure of the bid under the common law.          Because Liberty

National argues that plaintiff should not have prevailed before the trial judge, it

also requests reversal of the attorney's fees award.

                                        II.

      We review de novo a decision as to the applicability of OPRA and its

exemptions. In re N.J. Firemen's Ass'n Obligation, 230 N.J. 258, 273-74 (2017).

      OPRA was enacted "to maximize knowledge about public affairs in order

to ensure an informed citizenry and to minimize the evils inherent in a secluded

process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury

Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law

Div. 2004)). It allows society to "monitor the operation of our government [and]

hold public officials accountable for their actions." Fair Share Hous. Ctr., Inc.

v. N.J. State League of Municipalities, 207 N.J. 489, 502 (2011). Thus, we

construe OPRA "in favor of the public's right to access." O'Boyle v. Borough

of Longport, 218 N.J. 168, 184 (2014) (quoting N.J.S.A. 47:1A-1).

      OPRA provides that "government records shall be readily accessible for

inspection, copying, or examination by the citizens of this State, with certain

exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. A

government record includes "any . . . document . . . that has been made,


                                                                           A-1527-18T3
                                       11
maintained or kept on file in the course of . . . official business by any . . . agency

. . . of the State." N.J.S.A. 47:1A-1.1. If "[a] person . . . is denied access to a

government record by the custodian of the record," he or she may initiate a

proceeding in the Superior Court, and "[t]he public agency shall have the burden

of proving that the denial of access is authorized by law." N.J.S.A. 47:1A -6.

      The public's right to access government records is not absolute.              See

N.J.S.A. 47:1A-1.1; N.J.S.A. 47:1A-9.           OPRA excludes various types of

information from the definition of a government record, N.J.S.A. 47:1A-1.1, and

also provides that it "shall not abrogate any exemption of a public record or

government record from public access heretofore made pursuant to . . . [a]

regulation promulgated under the authority of any statute or Executive Order of

the Governor," N.J.S.A. 47:1A-9(a). "[C]ourt[s] must always maintain a sharp

focus on the purpose of OPRA and resist attempts to limit its scope, absent a

clear showing that one of its exemptions or exceptions incorporated in the statute

by reference is applicable to the requested disclosure." Tractenberg v. Township

of West Orange, 416 N.J. Super. 354, 378-79 (App. Div. 2010) (quoting Asbury

Park Press, 374 N.J. Super. at 329).

      We preface our discussion of the OPRA exemptions by determining that

section 1.4.6 of the RFP does not compel us to mandate disclosure of Liberty


                                                                               A-1527-18T3
                                         12
National's bid. Although section 1.4.6 provided that "[t]he entire content of

every proposal that is opened and read shall become a public record," a party

requesting to inspect Liberty National's bid was still required to file an OPRA

request. As we previously noted, OPRA's purpose is "to maximize knowledge

about public affairs," Mason, 196 N.J. at 64 (emphasis added), not to provide

the public with an opportunity to seek information that is intended to remain

confidential, see N.J.S.A. 47:1A-1.1. Thus, we conclude that the RFP was still

governed by the OPRA exemptions. We now consider each exemption that

Liberty National contends precludes disclosure of its bid.

                                       A.

      OPRA exempts from public disclosure "trade secrets and proprietary

commercial or financial information obtained from any source."         N.J.S.A.

47:1A-1.1. The statute does not define these terms, so we have considered

definitions from other sources.

      Our Supreme Court considered a definition of trade secrets included in the

Restatement (First) of Torts § 757 cmt. b (Am. Law Inst. 1939): "A trade secret

may consist of any . . . compilation of information which is used in one's

business, and which gives . . . an opportunity to obtain an advantage over

competitors who do not know or use it." Hammock by Hammock v. Hoffman-


                                                                        A-1527-18T3
                                      13
LaRoche, Inc., 142 N.J. 356, 384 (1995) (quoting Smith v. BIC Corp., 869 F.2d

194, 199 (3d Cir. 1989)). Courts may also consider the following factors:

            (1) [T]he 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.

            [Id. at 384 (quoting Smith, 869 F.2d at 200).]

We have also considered the Restatement (Third) of Unfair Competition § 39

(Am. Law Inst. 1995), which defines a trade secret as "any information that can

be used in the operation of a business or other enterprise and that is sufficiently

valuable and secret to afford a potential economic advantage over others."

Commc'ns Workers of Am. v. Rousseau, 417 N.J. Super. 341, 361 (App. Div.

2010).

      In Rousseau, we considered both definitions and upheld the application of

this exemption where the plaintiffs sought to compel disclosure of investment

agreements between the State and various limited partnerships. Id. at 360-62.

The agreements were not "made available to the general public," and "the

contents of individual agreements [were not] known beyond the partnership."

                                                                           A-1527-18T3
                                       14
Id. at 361-62. Further, "[t]he contents . . . are valuable not only to the general

partners, but also to competitors," as they "outline the organizational structure

of the partnerships, investment strategies, investment limitations, and other

terms governing the relationship between the general partner and limited

partners." Id. at 362.

      In defining proprietary commercial or financial information, we have

considered the ordinary meaning of the words. Id. at 355; see DiProspero v.

Penn, 183 N.J. 477, 492 (2005).              Proprietary commercial or financial

information is information that is private or exclusively owned and is related to

commerce, business, or "the management of money, banking, investments, and

credit."   Rousseau, 417 N.J. super. at 355-56 (citing American Heritage

Dictionary of the English Language (4th ed. 2006)). We consider three factors

to decide whether proprietary information must be disclosed: "the relationship

of the parties at the time of disclosure, . . . the intended use of the information,

. . . [and] the expectations of the parties." Id. at 356 (citing Lamorte Burns &

Co. v. Walters, 167 N.J. 285, 299-301 (2001)). We have not required "an

independent demonstration of confidentiality." Id. at 358.

      Liberty National's CFO certified that its bid contained "confidential

information revealing construction and design plans," and he asserted that


                                                                            A-1527-18T3
                                        15
disclosure of such information "would hinder Liberty National's ability" to

compete with other golf courses for hosting PGA TOUR events. The PGA

TOUR subsidiary's COO certified that Liberty National's long-term contract

with the PGA TOUR requires that Liberty National "maintain its existing golf

course in exchange for its right to host future professional golfing events," which

requires Liberty National to "routinely design and re-design [its] . . . course[] in

order to . . . compete for the right to host certain championship golfing events."

He further certified that these designs "are kept confidential by and between the

PGA TOUR and Liberty National."

      Liberty National's golf course designs and construction may be

"sufficiently valuable and secret to afford a potential economic advantage over

others," Rousseau, 417 N.J. Super. at 361 (quoting Restatement (Third) of

Unfair Competition § 39), and Liberty National and the PGA TOUR have

indicated that the designs are intended to remain confidential, see Hoffman-

LaRoche, 142 N.J. at 384. See also Rousseau, 417 N.J. Super. at 355-56

(discussing proprietary information). However, because we are unable to review

the contents of Liberty National's bid, we remand for in camera review to

ascertain whether the bid includes construction and design information that

amounts to a trade secret or proprietary information. If the bid contains such


                                                                            A-1527-18T3
                                        16
information, the judge may consider whether to require disclosure of the entire

bid with the exempted portions redacted.

                                       B.

      OPRA provides for a competitive advantage exemption, which protects

from disclosure "information which, if disclosed, would give an advantage to

competitors or bidders." N.J.S.A. 47:1A-1.1. A "mere potential" that disclosure

would confer an advantage is insufficient. Tractenberg, 416 N.J. Super. at 379.

      In Tractenberg, we declined to apply this exemption where an individual

sought disclosure of property appraisals obtained by the Township of West

Orange in its pursuit to acquire a parcel of private land. Id. at 360-62, 379. We

recognized that there was only a "mere potential for future negotiations"

between the Township and landowner, and the Township failed to make "a

strong showing that negotiations [were] probable." Id. at 379. To apply the

exemption under those circumstances would "subvert[] the broad reading of

OPRA as intended by the Legislature." Ibid. (quoting Times of Trenton Publ'g

Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)).

      By contrast, in Rousseau, 417 N.J. Super. at 362, we upheld the

application of this exemption. We agreed with the trial judge's finding that

"[a]ny competitor knowing when a fund's strategy would induce it to buy or sell


                                                                         A-1527-18T3
                                      17
would enjoy an advantage over the fund." Ibid. We added "that disclosure of

. . . the agreements would provide a competitive advantage not only to other

private equity funds but also to other investors interested in the same sectors,

companies, or properties." Id. at 363.

      Here, we consider two potential issues: competition for a future RFP and

competition within the golf industry. There is no indication that the DEP intends

to re-bid the same RFP. Thus, this exemption does not apply on the basis that

disclosure would threaten future competition for the RFP. See Tractenberg, 416

N.J. Super. at 379.

      The issue of competition within the golf industry, however, requires more

consideration.   Substantially the same information that is relevant for the

purposes of the trade secret and proprietary information exemption is relevant

for the purpose of this exemption. Liberty National is concerned that disclosure

of its construction and design plans will provide an unfair advantage to other

golf courses competing for the same PGA TOUR hosting rights. We find this

concern to be justified. See Rousseau, 417 N.J. Super. at 362. Because we are

unable to review the contents of Liberty National's bid, we remand for in camera

review to ascertain whether the bid includes information that would provide

Liberty National's competitors with a competitive advantage in the golf industry.


                                                                         A-1527-18T3
                                         18
If the bid contains such information, the judge may consider whether to require

disclosure of the entire bid with the exempted portions redacted.

                                       C.

      OPRA     also   includes   security   exemptions,   which     preserve   the

confidentiality of "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[, and] security measures and surveillance

techniques which, if disclosed, would create a risk to the safety of persons,

property, electronic data or software." N.J.S.A. 47:1A-1.1. These exemptions

do "not creat[e] a blanket exception for any and all information about security

measures." Gilleran v. Township of Bloomfield, 227 N.J. 159, 173 (2016).

However, "[t]he compelled release under OPRA, on demand for any or no

reason, of a security system's operational product revealing otherwise nonpublic

information about monitoring capability is at odds with the legislative intent in

creating security exceptions to OPRA." Id. at 164.

      Although our limited case law addressing this exemption has focused on

security systems implemented by governmental entities to protect public

buildings, see, e.g., Gilleran, 227 N.J. at 170-77, we see no reason to limit the

exemption to that concern. The statute's plain language does not restrict its


                                                                          A-1527-18T3
                                      19
application to the protection of public spaces, N.J.S.A. 47:1A-1.1, and other

OPRA exemptions protect various aspects of private entities', see Rousseau, 417

N.J. Super. at 360-62; Tractenberg, 416 N.J. Super. at 379. Moreover, Liberty

National has hosted and will likely continue to host professional golfing events

that attract a lot of people, so it is reasonably concerned for the safety of its

property, employees, and patrons.

      Liberty National's CFO certified that its bid contained "[s]ensitive

security information . . . developed in conjunction with multiple federal and state

law enforcement agencies." The judge did not address this exemption in her

oral decision.   Again, as we are unable to review the contents of Liberty

National's bid, we remand for in camera review to ascertain whether the bid

includes security information that would place at risk the security of Liberty

National's facilities or "the safety of persons, property, electronic data, or

software." If the bid contains such information, the judge may consider whether

to require disclosure of the entire bid with the exempted portions redacted.

                                        D.

      In addition to the exemptions enumerated in the OPRA statute, OPRA

incorporates exceptions created by other legal authorities, including regulations.




                                                                           A-1527-18T3
                                       20
N.J.S.A. 47:1A-9(a). The DEP has designated certain records as not subject to

disclosure, including records related to Green Acres land acquisitions:

            Records related to Green Acres, Blue Acres, and
            Natural Lands Trust land acquisitions, program
            offerings and active projects, including appraisals,
            valuations and title investigations, shall be made
            available for public inspection, examination and
            copying . . . unless the land transaction, program
            offering, or active project is actively under negotiation,
            a binding contract has not been executed, or disclosure
            of the records would jeopardize the land transaction,
            program offering. or active project.

            [N.J.A.C. 7:1D-3.2(c).]

      Our courts have not had the occasion to interpret this regulation. We

interpret it as we would interpret a statute, Bedford v. Riello, 195 N.J. 210, 221-

22 (2008), so we look to its plain language, DiProspero, 183 N.J. at 492. Where

the "language is clear and unambiguous, and susceptible to only one

interpretation," we need not look to extrinsic sources. Ibid. (quoting Lozano v.

Frank DeLuca Constr., 178 N.J. 513, 522 (2004)).

      We read N.J.A.C. 7:1D-3.2(c) as requiring an existing transaction or

project for a related record to be exempted. Because the DEP stopped pursuing

the RFP, and there has been no indication as to whether it would re-bid the same

RFP again, the RFP is no longer an existing project.          Thus, none of the

conditions for exemption are met.           Accordingly, we affirm the judge's

                                                                           A-1527-18T3
                                       21
determination that N.J.A.C. 7:1D-3.2(c) does not bar disclosure of Liberty

National's bid.

                                     III.

      We review de novo a decision as to the applicability of the common law

right of access to public records. Drinker Biddle & Reath LLP v. N.J. Dep't of

Law and Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011).

      OPRA does not "limit[] the common[-]law right of access to a government

record."   N.J.S.A. 47:1A-8.   "The common[-]law right of access to public

documents provides that a party shall have access to public documents when the

party seeking access has an interest in the documents and the party's interest

outweighs the public's interest in preventing disclosure." Rousseau, 417 N.J.

Super. at 363 (citing Keddie v. Rutgers, 148 N.J. 36, 50 (1997)). Under the

common law, a public record is more broadly defined as

            one required by law to be kept, or necessary to be kept
            in the discharge of a duty imposed by law, or directed
            by law to serve as a memorial and evidence of
            something written, said, or done, or a written memorial
            made by a public officer authorized to perform that
            function, or a writing filed in a public office.

            [Nero v. Hyland, 76 N.J. 213, 222 (1978) (quoting
            Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App.
            Div. 1954)).]



                                                                       A-1527-18T3
                                     22
      A party seeking access to a public record "must make a greater showing

than required under OPRA[.]" Mason, 196 N.J. at 67. The requestor "must

'establish an interest in the subject matter of the material.'" Ibid. (quoting

Keddie, 148 N.J. at 50). The requestor's interest "may be either a wholesome

public interest or a legitimate private interest." Drinker Biddle, 421 N.J. Super.

at 499 (quoting Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 302 (2009)).

      The court must then balance "the citizen's right to access . . . against the

State's interest in preventing disclosure." Mason, 196 N.J. at 67-68 (quoting

Keddie, 148 N.J. at 50). The court should consider "whether the demand for

inspection is premised upon a purpose [that] tends to advance or further" the

requestor's interest. S. N.J. Newspapers, Inc. v. Township of Mount Laurel, 141

N.J. 56, 72 (1995) (internal quotation marks omitted) (quoting S. Jersey Publ'g

Co. v. N.J. Expressway Auth., 124 N.J. 478, 488 (1991)). The court may also

consider several factors in weighing the parties' interests:

            (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 decision[-]making will be chilled by
            disclosure; (4) the degree to which the information
            sought includes factual data as opposed to evaluative

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            reports of policymakers; (5) whether any findings of
            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 73 (quoting Loigman v. Kimmelman, 102 N.J.
            98, 113 (1986)).]

      Generally, the State's "interest in nondisclosure is based on the need to

keep the information confidential." Keddie, 148 N.J. at 51. "However, where

the interest in confidentiality is 'slight or non-existent,' standing alone will be

sufficient to require disclosure to advance a legitimate private interest." Ibid.

(quoting Loigman, 102 N.J. at 105).

      Plaintiff has a valid interest in the contents of Liberty National's bid, as it

arose from his interest in limiting or preventing development on park space. See

Drinker Biddle, 421 N.J. Super. at 499. However, the DEP has an interest in

nondisclosure of certain information. Compelling disclosure of trade secrets or

security information may discourage bidding for future projects. Although the

RFP indicated that the contents of every bid would become public, it also

indicated that interested parties would have to file an OPRA request, indicating

that the OPRA statute in its entirety still applies.        The DEP's interest in

protecting future bidders outweighs plaintiff's interest. As we have explained,

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                                        24
plaintiff is still entitled to inspect Liberty National's bid, with the appropriate

information redacted.     Redaction of this information should still provide

plaintiff with an adequate understanding of how Liberty National proposed to

develop Caven Point. Accordingly, we reverse the judge's finding that plaintiff's

interest was greater than any interest in nondisclosure and her determination that

plaintiff was entitled to access the entirety of Liberty National's bid under the

common law.

                                        IV.

      In a proceeding to challenge the denial of access to government records,

"[a] requestor who prevails . . . shall be entitled to a reasonable attorney's fee."

N.J.S.A. 47:1A-6. Plaintiff initiated the action below to compel disclosure of

Liberty National's bid, and he was successful. However, we remand for review

of the issues previously discussed.          If the judge determines that certain

information must be redacted before the bid is disclosed, the judge may

reconsider the award of attorney's fees. This is supported by language in the

October 22, 2018 order awarding plaintiff attorney's fees that any party "may

file an appropriate application to modify the counsel fee" if the July 25 , 2018

order was modified or reversed on appeal.




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      To the extent we have not specifically addressed any remaining arguments

raised by the parties, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




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