THE RU/HIGH POINT STONEWALL–Why won’t Rutgers release public records?

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High Point Solutions Stadium, home of the Rutgers football team.

Rutgers University spends nearly $4 billion annually, most of it taxpayer money–or tuition. It just spent $10 million on a “supercomputer” that hasn’t worked. And now it’s refusing to meet its obligation to be transparent about business dealings.


Rutgers University officials have refused to comply with formal requests for public records that would reveal how they chose the contractors that built a flawed $10 million “supercomputer” that had to be shut down just weeks after its launch–contractors that included High Point Solutions of Sparta, a politically-connected company that, while it had little, if any, experience with supercomputing, had given the university $6.5 million for the naming rights to its football stadium.

The Trump Transition team includes the owner of High Point Solutions, Thomas Mendiburu. Also, Gov. Chris Christie appointed him a Trump delegate to the GOP convention.

 

Despite claims that the university engaged in a “highly competitive bidding process,” Rutgers  officials now are refusing to comply with demands under the Open Public Records Act (OPRA) that it reveal the details of that process, including the identity of bidders and the cost of their bids. (Details of the OPRA request and Rutgers’ response are below).

“There is no way–without that information–that the public can determine whether the contracts involved went to the lowest qualified bidder,” said one university official not directly involved in the transaction–someone who spoke  on the condition of anonymity.

“It’s not a competitive process if it’s not public.”

Although the university bally-hooed the computer–dubbed “Caliburn”–in a media blitz that gave it national recognition, it has so far refused to provide any information on how it chose High Point Solutions of Sparta to be the “lead contractor” when High Point Solutions–owned by a family with ties to both Chris Christie and Donald Trump–had no discernible experience in the international and highly specialized world of supercomputing. On its own website, it describes how it provided IT services to one public school district in Sussex County–hardly supercomputing.

The computer had to be shut down in mid-January because of overheating. It is not yet operational.

Read the background on Rutgers’ flawed $10 million “supercomputer”

The university also is refusing to make public any correspondence involving “Caliburn” between the contractors and university officials involving the construction of the supercomputer, its failure in January, and efforts to repair it. Rutgers contends the request was “overbroad.”

The university also has refused to explain what exactly High Point did for the university when previous public statements indicated “Caliburn” was designed by Rutgers professors and built by a San Jose/Taipei company  named Super Micro Computing.

After the university’s public information department refused to provide any more information concerning the High Point Solutions contract, this site filed a demand under OPRA. Rutgers has rejected any demand for information about the bidders because “public disclosure of the information contained therein may discourage potential vendors or service providers from bidding on future projects.”

Despite its broad rejection of all OPRA claims, the university is demanding $400 to provide material it does not describe. This site has asked for specifics. The form required by Rutgers officials for making OPRA requests–a form not required by the law–makes it difficult, if not impossible, to file one demand that covers all required materials.

(UPDATE: RU informed this site the material it will provide for $400 covers includes an RFP, contracts, plans, award letters and RFP responses. This site considers the response incomplete and unsatisfactory (see demand letter above) and will continue to demand access to bid submissions; correspondence, including emails,  between High Point Solutions and Rutgers officials, and internal documents describing the circumstances surrounding the computer shutdown and ongoing repair).

This is the site’s demand under OPRA:

“….documents from facilities construction, repair or maintenance, and emails and correspondence–all of which and everything pertaining to the submission of bids for the construction of what was to become known as the “Caliburn” supercomputer, including but not limited to requests for proposals for the construction of Phase I, Phase II and Phase III of the Caliburn and the distribution list of those RFPS; the bids submitted by vendors for all three phases of construction, along with the names of said vendors and the amount of their bids; any and all documents related to the award of all contracts for Phase I, Phase II and Phase III; any and all correspondence of any sort related to the decision to hire said vendors; the award letters and any related documents related to construction; any and all correspondence related to a glycol leak affecting Caliburn and steps taken to repair the leak, any assessment of damage, and any and all correspondence to users explaining the damage and steps taken to finish repairs, including timelines and schedules.”

This is Rutgers’ response. Note that it denies requests for correspondence because I requested “any and all correspondence.” In fact, as the site’s request shows, the demand was limited to specific transactions, circumstances and situations.

Your request for emails and “any and all correspondence” is denied because the request is overbroad and requires research. In 2010, the GRC defined a proper request for e-mails:  “[I]n order to specifically identify an e-mail, OPRA requests must contain (1) the content and/or subject of the e-mail, (2) the specific date or range of dates during which the e-mail was transmitted or the e-mails were transmitted, and (3) a valid e-mail request must identify the sender and/or recipient thereof.”  Elcavage v. West Milford Twp., GRC Complaint No. 2009-07 (April 8, 2010).  The GRC revisited the description of a proper request in 2013, stating “An OPRA request is thus only valid if the subject of the request can be readily identifiable based on the request. In the case of e-mails or documents stored on a computer, a simple keyword search may be sufficient to identify any records that may be responsive to a request. In both cases, e-mails and correspondence, a completed “subject” or “regarding” line may be sufficient to determine whether the record relates to the described subject. To reiterate, a valid OPRA request requires a search, not research.  What a custodian is not required to do, however, is to actually read through numerous e-mails and correspondence to determine if same is responsive: in other words, conduct research.” Verry v. Borough of South Bound Brook (Somerset), GRC Complaint Nos. 2013-43 and 2013-53 (November 2013).  

 

Furthermore, OPRA does not require a custodian to conduct research or an agency to expend “indisputably limited agency resources to sift through the [agency’s] vast files and identify, analyze and select potentially relevant and responsive public records.”  Spectraserv v. Middlesex County Utilities Authority, 416 N.J. Super.  565, 578 (App. Div. 2010), Burnett v. Gloucester County, 415 N.J. Super. 506, 515 (App. Div. 2010).  OPRA “is not intended as a research tool litigants may use to force government officials to identify and siphon useful information.”  MAG Entertainment v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 547 (App. Div. 2005).  “In short, OPRA does not countenance open-ended searches of an agency’s files.”  Id. at 549. Therefore, your blanket request for emails and other correspondence is denied as overbroad. 

 

With respect to your request for the bids submitted for all three phases of construction, please be advised that the bids from the vendors not selected for this project will not be released because the public disclosure of the information contained therein may discourage potential vendors or service providers from bidding on future projects, the result of which would place the University at a competitive disadvantage in future bidding processes. 

 

 

One comment

  1. Joe

    Thanks for this incredible series of sleuthing and journalism. It certainly looks like Rutgers has something to hide, incompetence/nonfeasance at the least and possibly malfeasance. I’m just astounded that Rutgers University spends nearly $4 billion annually. I would have guessed $500 million to $800 million but then Rutgers is a huge multi-campus complex with added research facilities. Hopefully the truth will be revealed at some point thanks to all your efforts.

    Bob Braun: Thanks. According to university’s records, the Rutgers budget amounts to $3,906,306,104. Near enough to $4 billion, I’d say, to describe it as nearly $4 billion. Rutgers has nothing to hide but, perhaps, some people who work for Rutgers have things to hide. They are abetted by lazy and indifferent media outlets, including the student newspaper, The Daily Targum, and journalism students who apparently don’t wish to investigate what is going on in their own corrals. Nearly 50 years ago, a group of Rutgers journalism students took on an investigation of how Rutgers officials–most especially those in athletics–conspired to keep the name Paul Robeson from the hearing and sight of Rutgers students. Those journalism students even took on temporary jobs to earn enough money to buy a membership in the National Collegiate Football Hall of Fame, then located at Rutgers, so that Robeson, who was then still alive, could be nominated. The Rutgers representative joined the rest of the nation in voting against Robeson–the rest of the nation, that is, except the journalism students, then known as The Press Club. Eventually, black student organizations took up Robeson’s cause and the tactics shifted from journalism to confrontation. Paul Robeson, after his death, was rehabilitated, as evidenced by the buildings and programs named in his honor (and his membership in the football hall of fame). It’s too bad Rutgers sold the stadium naming rights to High Point Solutions for $6.5 million because Paul Robeson Stadium would have been a better choice. Robeson was an All-American. I was lucky enough to be president of the Rutgers University Press Club back in 1966 and worked on its weekly newspaper, The Press Club Weekly.

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