Robert A. Verry v. Franklin Fire District No. 1 (Somerset) (077495) (Statewide)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3635-14T2
ROBERT A. VERRY,
Respondent,
v.
FRANKLIN FIRE DISTRICT NO. 1,
Appellant,
and
MILLSTONE VALLEY FIRE DEPARTMENT,
Respondent.
____________________________________
Argued January 4, 2016 – Decided March 15, 2016
Before Judges Sabatino, Accurso and
O'Connor.
On appeal from the Government Records
Council.
Dominic P. DiYanni argued the cause for
appellant (Eric M. Bernstein & Associates,
LLC, attorneys; Mr. DiYanni, of counsel and
on the brief).
Walter M. Luers argued the cause for
respondent Robert A. Verry.
Debra A. Allen, Deputy Attorney General,
argued the cause for respondent Government
Records Council (John J. Hoffman, Acting
Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Ms. Allen, on the brief).
Lamb Kretzer, LLC, attorneys for respondent
Millstone Valley Fire Department (Aldo J.
Russo, on the brief).
PER CURIAM
This matter comes before us on leave granted to review an
interim order of the Government Records Council (GRC) finding
that Millstone Valley Fire Department is an "instrumentality" of
the Franklin Fire District No.1 and thus a "public agency"
subject to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13. Because we agree with the GRC that the Fire Department
is a public agency under the analysis in Paff v. N.J. State
Firemen's Ass'n, 431 N.J. Super. 278 (App. Div. 2013), we
affirm.
The essential facts are undisputed. In February 2013,
plaintiff Robert A. Verry made a public records request of the
Franklin Fire District seeking the constitution and by-laws for
the Millstone Valley Fire Department in effect from 2007 to
2013. After the Fire District denied Verry's request on the
grounds it did not maintain such records for its member
departments or fire companies and that the documents were not
government records in any event, Verry filed a complaint with
the GRC.
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The GRC accepted the submissions of Verry and the Fire
District and determined that the Fire Department is a public
agency for purposes of OPRA. The GRC began its analysis by
establishing a point neither party disputes: the Fire District
is a public agency for purposes of OPRA. See N.J.S.A. 40A:14-70
(establishing the procedure for creation and designation of fire
districts). Although acknowledging the Fire Department was
privately created as a volunteer organization by its members,
the GRC found that when the Department applied and was accepted
into membership by the Fire District pursuant to N.J.S.A.
40A:14-70.1, it became an instrumentality of the District,
serving a governmental function under the District's supervision
and control. Because the relationship between the Fire District
and the Fire Department "owes its existence to state law,"
Firemen's Ass'n, supra, 431 N.J. Super. at 290, the GRC
concluded the Fire Department was a public agency subject to
OPRA.
The GRC accordingly issued an interim order to that effect
and directed the District's records custodian to obtain the
responsive records from the Fire Department and provide access
to Verry. The Council deferred analysis of whether the
District's records custodian had willfully violated OPRA and
whether Verry was a prevailing party entitled to attorney's fees
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pending the custodian's compliance with the Council's interim
order.
The District moved for reconsideration, contending the GRC
misapplied the "creation test" established by the Supreme Court
in Fair Share Hous. Ctr., Inc. v. N.J. State League of
Municipalities, 207 N.J. 489 (2011), in determining that the
Fire Department was a public agency under OPRA. The Fire
Department filed an "amicus brief" with the GRC supporting the
District's motion. The Department joined in the District's
arguments and also contended that it, like many other volunteer
fire companies, is both a fire company and a social
organization. It noted its lack of paid staff, the burden of
having to respond to records requests within the required
timeframes and the possibility that subjecting it to OPRA might
dissuade volunteers from becoming firefighters.
Although contending it was not a public agency required to
allow access to its records under OPRA, the Fire Department
argued that if the GRC disagreed, it should at least allow the
Department to redact any information relating to the
Department's social activities. The GRC denied the District's
motion for reconsideration but granted it a stay to permit it to
file a motion for leave to appeal to this court.
The District and the Fire Department, which we directed be
joined as a party following oral argument, renew the arguments
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they made to the GRC.1 Specifically, they contend the Fire
Department is not a public agency under OPRA and that the GRC
improperly applied the "creation" and "governmental function"
tests of the League of Municipalities, supra, 207 N.J. at 507-08
and Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 546-47
(2012). They argue the GRC should have looked to its own agency
precedent on volunteer fire companies where it deemed the
Newfield Fire Company not a public agency under OPRA. See
Carrow v. Borough of Newfield, GRC Complaint No. 2012-111 (Feb.
26, 2013).2 We are not persuaded by those arguments.
Our review of administrative agency actions is limited. In
re Herrmann, 192 N.J. 19, 27 (2007). We will not upset an
agency's decision absent a clear showing it is arbitrary,
capricious, or unreasonable, that it lacks substantial support
in the record or it violates express or implied legislative
policies. Aqua Beach Condo. Ass'n v. Dep't of Comty. Affairs,
186 N.J. 5, 15-16 (2006). Although our review of a purely legal
issue is de novo, see Saccone v. Bd. of Trs. of the Police &
Firemen's Ret. Sys., 219 N.J. 369, 380 (2014), we accord
substantial deference to an agency's interpretation of a statute
it is charged with administering. See N.J. Soc'y for the
1 The Department has not requested oral argument.
2 http://www.state.nj.us/grc/decisions/pdf/2012-111.pdf.
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Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196
N.J. 366, 385 (2008). Because the GRC is charged with
administering OPRA, N.J.S.A. 47:1A-7b, its holdings regarding
the scope of the statute are entitled to deference. McGee v.
Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010).
There is no dispute that the Millstone Valley Fire
Department began its existence in 1929 as a not-for-profit
entity incorporated by a group of private citizens "to protect
life and property from fire, by the usual means of fire
companies." Accordingly, were one to look only to its creation,
it would follow the Fire Department could not be considered an
instrumentality or agency of the Fire District and thus not a
public agency subject to OPRA. See League of Municipalities,
supra, 207 N.J. at 504 (explaining the creation of the League of
Municipalities by member municipalities pursuant to statutory
authority made it a public agency under the creation test,
consistent with the Court's holding in The Times of Trenton
Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519,
535-36 (2005)).
But the determination of whether an entity is a public
agency or instrumentality subject to OPRA requires a fact-
sensitive inquiry that looks beyond mere form. Firemen's Ass'n,
supra, 431 N.J. Super. at 288. The District and the Department
do not dispute that the Fire Department performs a traditional
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governmental function, firefighting, under the supervision and
control of a public agency, the Fire District, through an
allocation of significant tax revenues it receives for that
purpose. The salient fact here is that since 1974, it has done
so as a member company of the Franklin Fire District. In 1973,
the Millstone Valley Fire Department applied to become part of
the Franklin Fire District pursuant to N.J.S.A. 40A:14-70.1a.
The District's board of fire commissioners granted the
application, apparently on the basis of a Township Council
resolution, and the Fire Department has been a member company of
the District since 1974.
Accordingly, we reject the argument that their relationship
is controlled entirely by contract, as was the relationship
between the fire company and the Borough in Carrow.3 Viewing the
Fire Department's "formation, structure, and function," we have
no hesitation in agreeing with the GRC that the Fire Department,
at least since 1974, has become an instrumentality of the
3 Carrow did not involve a fire district. Instead, the Borough
of Newfield contracted directly with a volunteer fire company
pursuant to N.J.S.A. 40A:14-68. See Newfield Fire Co. No. 1 v.
Borough of Newfield, 439 N.J. Super. 202, 206-07 (App. Div.
2015) (involving the same parties); Carrow, supra, No. 2012-111
(slip op. at 10). Although decisions of the GRC are not binding
on us, N.J.S.A. 47:1A-7e; O'Shea v. Twp. of West Milford, 410
N.J. Super. 371, 382 (App. Div. 2009), we agree with the Council
that the different factual scenarios make Carrow inapposite
here.
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District and thus a public agency subject to OPRA. See
Firemen's Ass'n, supra, 431 N.J. Super. at 289-90.
Both the District and the Department argue that if the Fire
Department is considered a public agency subject to OPRA, only
those records which relate to the governmental function it
performs on behalf of the District should be available under
OPRA and only through the Fire District. They contend that no
public purpose is served by any broader release of the Fire
Department's documents and that real public harm might result
from imposing OPRA's burdens on all-volunteer fire companies.
Verry dismisses that argument by noting that there is no
"burdensome exception" to complying with OPRA and no basis for
any "carve-out" for the Department's documents.
We do not decide the issue. We granted leave to review the
GRC's interim order declaring the Fire Department an
instrumentality of the District and thus a public agency subject
to OPRA. Although the GRC ordered the District to produce
documents responsive to Verry's request, it did so "in the
absence of any exemption applying to the responsive records."
Further, in the event the District could not comply because the
Department refused to disclose the documents, the GRC allowed
the Fire Department to come forward with "a lawful basis for not
providing" the records. Because these matters raise important
issues that should be decided by the GRC in the first instance,
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Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 386-87,
cert. denied, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136
(1979), we decline to address them here.
We affirm the GRC's interim order finding that Millstone
Valley Fire Department is an "instrumentality" of the Franklin
Fire District and thus a "public agency" subject to OPRA and
remand for further proceedings consistent with this opinion. We
do not retain jurisdiction.
Affirmed and remanded.
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