Argued November 1, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4371-11.
Richard Gutman argued the cause for appellant.
John C. Gillespie argued the cause for respondent (Parker McCay P.A., attorneys; Mr. Gillespie and George M. Morris, of counsel; Stacy L. Moore, Jr., on the brief).
Before Judges Messano, Lihotz and Ostrer.
The issue in this appeal is whether the New Jersey State Firemen's Association (the Association) is a "public agency, " N.J.S.A. 47:1A-1.1, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Association maintains it is not a public agency; therefore, OPRA did not require it to permit plaintiff to inspect its records. The trial court agreed and dismissed plaintiff's verified complaint to compel access. As we conclude that the Association is a public agency under OPRA, we reverse and remand.
In order to determine whether the Association is a "public agency" under OPRA, we must review in some detail the Association's powers, funding, and mission, as set forth in relevant statutes and regulations.
The Association was established pursuant to an 1885 statute. L. 1885, c. 122, § 24. The Association was organized by the several incorporated local firemen's relief associations, whose mission was to provide assistance to indigent firefighters and their families. Ibid. The Association was authorized to conduct an annual convention, and to oversee activities of the local associations. L. 1885, c. 122, §§ 26-28. The local associations were funded with the direct payment of a tax on premiums of fire insurance companies not organized under New Jersey law, but doing business here. L. 1885, c. 240, § 1. The amount collected was deemed part of the reciprocal tax collected by the State's tax authorities. L. 1885, c. 240, § 8. Local associations were required to file an annual report of their organization's officers and finances with the State and the Association. L. 1885, c. 122, § 28. The Association in turn was required to report to the State regarding local associations' compliance with the law. L. 1885, c. 122, § 29.
The powers and role of the Association changed over time, as a result of amendatory statutes, Department of Banking and Insurance regulations, and a judicial decision, Szabo v. New Jersey State Firemen's Association, 230 N.J.Super. 265 (Ch. Div. 1988). The plaintiff in Szabo alleged the mechanism for funding the Association and local associations was an unconstitutional donation of money under N.J. Const. art. VIII, § 3, ¶ 3, and the grant of power to the Association was an unconstitutional delegation of legislative authority, contrary to N.J. Const. art. IV, § 1, ¶ 1. Szabo, supra, 230 N.J.Super. at 268-69. Szabo claimed the Association was a "'private' rather than a public body." Id. at 285 n.15. "Defendant [the Association] dispute[d] that characterization." Ibid.
The court did not decide whether the Association was a private or public body. Ibid. The court construed the statute governing the local associations, N.J.S.A. 43:17-1 to -39, and the Association, N.J.S.A. 43:17-40 to -47, to avoid a constitutional challenge. The court required the Association to adopt regulations governing the local associations' benefit decisions. Id. at 290. The court also required greater State governmental oversight of the Association and local associations. Id. at 294.
The Association was later delegated expanded powers to oversee and regulate the activities of local associations. The governance of local associations must comply with rules and regulations adopted by the Association's executive committee. L. 1996, c. 151, § 8, codified at N.J.S.A. 43:17-10. Decisions by local associations regarding requests for financial assistance shall also comply with the executive committee's rules and regulations. L. 1996, c. 151, § 21, codified at N.J.S.A. 43:17-24. The Association has the power to seize control of a local association's assets and management if the local association violates the law or the Association's regulations. L. 1996, c. 151, § 24, codified at N.J.S.A. 43:17-27.
The Association also exercises oversight over the expenses incurred by local associations at the Association's annual convention. L. 1996, c. 151, § 25, codified at N.J.S.A. 43:17-29. The Association is expressly authorized to make direct benefit payments. L. 1996, c. 151, § 33, codified at N.J.S.A. 43:17-41. Even before this enactment, the Association in practice directly administered burial fund benefits, generally without regard to financial need. See Szabo, supra, 230 N.J.Super. at 273, 275.
Insurers not organized under New Jersey law or their agents are now required to pay the two percent tax on fire insurance premiums directly to the Association, which it then disburses to local associations, and as benefit payments. L. 1997, c. 41, §§ 1 and 2, codified at N.J.S.A. 54:18-1 and -2. Likewise, agents of surplus lines carriers are required to pay the three percent tax on fire insurance premiums directly to the Association. L. 2009, c. 75, § 4, codified at N.J.S.A. 17:22-6.59. The Association in turn disburses funds to the local associations in proportion to the premiums collected in the municipality served by the local association. N.J.S.A. 54:18-2; N.J.A.C. 11:1-38.5(a)(3). The Association's executive committee "shall have the supervision and power of control of the funds" of local associations and shall report ...