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U.S. Water LLC v. Middlesex County Improvement Authority

March 14, 2002

U.S. WATER LLC, PLAINTIFF-RESPONDENT,
v.
MIDDLESEX COUNTY IMPROVEMENT AUTHORITY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-7805-01.

Before Judges Havey, Braithwaite and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2002

Plaintiff filed an action in lieu of prerogative writs in the Law Division to obtain copies of documents, which it asserted were public records, from defendant Middlesex County Improvement Authority ("MCIA"). The complaint alleged entitlement to copies of the documents under the Right to Know Law, N.J.S.A. 47:1A-1 to -4 ("RTKL"), the New Jersey Water Supply Public-Private Contracting Act, N.J.S.A. 58:26-19 to -27 ("WSA"), and the common law. At the same time, plaintiff filed a notice of motion to proceed summarily pursuant to R. 4:67 for disclosure of the documents. The motion, however, was based solely on the RTKL. MCIA filed a cross-motion for summary judgment, contending that the request was premature. The judge denied MCIA's motion and entered judgment for plaintiff. MCIA appealed, obtaining a stay of the judgment from the Supreme Court pending our decision.

We reverse and remand for entry of judgment in favor of MCIA. However, we emphasize that our ruling is limited to the precise issue presented, that is whether the disclosure ordered was premature given the stage then reached in the administrative proceedings being conducted by the MCIA pursuant to the WSA.

I.

MCIA, acting pursuant to its power to provide public services to local municipalities, N.J.S.A. 40:37A-54, entered into an agreement with the Township of North Brunswick to solicit proposals under the WSA for private operation of its water supply system. Under the agreement, MCIA is initially responsible for administering the procurement process and negotiating an agreement with a private company.

On February 22, 2000, MCIA published its "Requests for Qualifications and Proposals ("RFQ/P"). On May 5, 2000, five companies submitted the requested documents, including plaintiff and Azurix North America Corp./JJS Management Services LLC ("Azurix"). MCIA's Project Team reviewed the proposals and recommended that MCIA negotiate first with Azurix. Those negotiations resulted in a proposed contract.

On May 29, 2001, MCIA submitted the proposed contract with Azurix to North Brunswick's governing body, seeking preliminary approval of the terms of the contract and authorization to hold a public hearing. That same day, the governing body adopted a resolution tentatively approving the contract subject to the additional requirement that MCIA successfully negotiate and submit to the Township for its approval an agreement for the private operation of its wastewater system with plaintiff. That negotiation, which has still not been concluded, was being conducted pursuant to the New Jersey Wastewater Treatment Public- Private Contracting Act, N.J.S.A. 58:27-19 to -27, a statute which provides procedures that are quite similar to those set forth in the WSA. Finally, the resolution authorized MCIA to conduct a public hearing on the proposed contract with Azurix and to thereafter submit it to the appropriate state agencies for their approval.

On June 18, 2001, apparently acting in response to the Township's adoption of the resolution of preliminary approval of the Azurix contract, plaintiff, relying on the RTKL and common law, filed a written demand with MCIA for copies of the following documents:

All proposals (including, without limitation, proposal forms and evidence of qualifications and all other material) (the "Proposals") submitted in response to the Request for Qualifications and Proposals for Water Services Agreement for the . . . Township of North Brunswick Water System[] As Part of The Middlesex County Improvement Authority Shared Services Program, issued February 22, 2000 by Middlesex County Improvement Authority ("MCIA"), as amended, and

All reports or other analysis undertaken or received by any employee, agent or consultant of MCIA with respect to any or all Proposals, including (without limitation) any report or analysis prepared by Ernst & Young LLP or any related entity.

By letter dated June 25, 2001, MCIA, relying on the WSA, denied plaintiff's request, asserting that "such information is not available ...


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