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Verry v. Franklin Fire District No. 1

Supreme Court of New Jersey

August 7, 2017

ROBERT A. VERRY, Respondent,
v.
FRANKLIN FIRE DISTRICT NO. 1, Appellant, and MILLSTONE VALLEY FIRE DEPARTMENT, Respondent.

          Argued March 27, 2017

         On appeal from the Superior Court, Appellate Division.

          Dominic P. DiYanni argued the cause for appellant (Eric M. Bernstein & Associates, attorneys).

          Aldo J. Russo argued the cause for respondent Millstone Valley Fire Department (Lamb Kretzer, attorneys).

          Walter M. Luers argued the cause for respondent Robert A. Verry (Law Offices of Walter M. Luers, attorneys).

          Raymond R. Chance, III, Assistant Attorney General, argued the cause for respondent Government Records Council (Christopher S. Porrino, Attorney General, attorney; Raymond R. Chance, III, of counsel, and Debra A. Allen, Deputy Attorney General, on the brief).

          Edward L. Barocas argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Edward L. Barocas, Iris Bromberg and Jeanne LoCicero, on the brief).

         LaVECCHIA, J., writing for the Court.

         In this appeal the Court reviews a judgment requiring the release, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, of the constitution and bylaws of a volunteer fire company that is a member of a fire district established pursuant to N.J.S.A. 40A: 14-70.

         On February 28, 2013, plaintiff Robert A. Verry submitted a public records request to Franklin Fire District No. 1 (District), seeking the constitution and bylaws of the Millstone Valley Fire Department (MVFD), a volunteer fire company operating within the District. The District denied the request on the basis that it does not maintain such documents for its member companies. Verry filed a complaint with the Government Records Council (GRC).

         The MVFD operated independently as a volunteer fire company until 1973, when it requested membership in the already-existing District. The District informed members of the MVFD that, in order to join the District, the volunteer company would be required to transfer title in all fire-fighting equipment to the District. Annually, the MVFD would submit a budget to the commissioners. Notwithstanding the MVFD's acceptance into the District through a resolution of the Township Council, the MVFD, as a member fire company operating within the District, annually enters into a contract with the District to provide firefighting services. Through that contract, the MVFD receives public funds to cover the housing and maintenance of firefighting equipment owned by the District, training for the MVFD's members, and the purchase of new equipment.

         The GRC unanimously adopted the conclusion that the MVFD "serves a governmental function under the supervision and control of [the District]" and therefore "it is a public agency for purposes of OPRA." In an interim order, the GRC required the District to obtain the requested documents from the MVFD and to turn them over to Verry. The District moved for reconsideration. The MVFD also filed a brief in support of the reconsideration motion. The GRC denied reconsideration and reaffirmed its prior interim order.

         The Appellate Division granted leave to appeal and, in an unpublished decision, affirmed the GRC's interim order, concluding that the MVFD is a public agency subject to OPRA. The panel held that the GRC did not misapply case law involving the "creation" and "governmental function" tests to identify whether the MVFD is a public agency subject to OPRA. The panel "agree[d] with the GRC that [the MVFD], at least since 1974, has become an instrumentality of the District and thus a public agency subject to OPRA."

         The GRC stayed its interim order pending the District's motion for leave to appeal to this Court. On June 1, 2016, the Court granted the District's motion for leave to appeal and directly certified the entire matter, including the issues remanded by the Appellate Division. 226 N.J. 206.

         HELD: The fire district, to which the OPRA request was made, is obliged to release such documents in its possession or to obtain them from a member volunteer fire company under its supervision and release them. OPRA demands such transparency and accountability of public agencies, and the fire district is undoubtedly a public agency subject to OPRA. The Court therefore affirms the judgment in that respect. However, to the extent the holding under review also concluded that the member volunteer fire company is a "public agency" subject directly and independently to OPRA requirements, the Court disagrees and modifies the judgment.

         1. In enacting OPRA, the Legislature has declared 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. 47:1 A-l. OPRA's disclosure requirements apply to public agencies. The definition of i public agency includes "any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by apolitical subdivision or combination of political subdivisions." N.J.S.A. 47:1A-1.1. (pp. 10-15)

         2. The Legislature granted to municipalities lacking a paid or partially paid fire department the power to create a fire district. N.J.S.A. 40A: 14-70. Within the same statute, the Legislature specifies the exact nature of the entity that it authorizes a municipality to create and elaborates on the process of creating a fire district: "The district or each district shall be assigned a number and the commissioners thereof and their successors shall be a body corporate . . . ." Ibid, (emphasis added). The Legislature did not provide that the fire district being created would itself be a political subdivision. The additional words "and political subdivision, " often used elsewhere in legislative authorizations, are not included in the authorizing language for a fire district. Indeed, the Legislature has enacted many other statutes authorizing the formation of an entity by another form of legislatively created entity, like a municipality or a county, to be both "a body corporate" and "a political subdivision." (pp. 15-18)

         3. When established, a fire district is a creation of a municipality-which is undoubtedly a political subdivision-that utilizes authority available to it pursuant to N.J.S.A. 40A: 14-70 to form a fire district. That makes the fire district an instrumentality of a political subdivision or multiple political subdivisions, as the case may be. However, the fire district itself is not a political subdivision. The Legislature did not designate it so. For OPRA disclosure-requirement purposes, as an instrumentality of a political subdivision, a fire district clearly meets the definition of public agency under the second sentence of OPRA's definition. OPRA provides that an "instrumentality within or created by a political subdivision" is considered a "public agency." N.J.S.A. 47:1A-1.1. As a result, afire district is subject to OPRA and must respond to requests made under the statute, (pp. 18-20)

         4. A member volunteer squad may be regarded as an instrumentality of a fire district. However, because the District itself is not a political subdivision, but rather the instrumentality of one, the volunteer company is only the instrumentality of an instrumentality. Although OPRA provides that an instrumentality of a political subdivision constitutes a public agency, it does not provide that an instrumentality of an instrumentality constitutes a public agency. See N.J.S.A. 47:1A-1.1. OPRA requires a direct connection to a political subdivision. The Court cannot conclude that the Legislature intended for a volunteer fire company to be considered a separate public agency for OPRA purposes. Nor does a contract establish the type of relationship that fits within the definition of public agency under OPRA. Because the District is an instrumentality of a political subdivision, it falls within the plain language of the statutory definition of public agency. By contrast, the MVFD is a non-profit association and, while it is supervised by the District, the volunteer company is not a public agency as defined by OPRA. (pp. 20-24)

         5. The District, upon receiving a request for the constitution and bylaws of the MVFD, was obligated to provide access to those documents because they should have been on file with, or accessible to, the District pursuant to its authority to supervise the MVFD. It is not necessary to resolve whether the MVFD enjoys a relationship as a member volunteer squad of the District under N.J.S.A. 40A: 14-70.1(a) or if the District merely supervises the volunteer squad pursuant to a contractual relationship under N.J.S.A. 40A: 14-70.1 (b). Under either provision, the District supervises the MVFD and has certain responsibilities to provide public access to records relating to that supervision. The Court therefore affirms the judgment of the Appellate Division that upheld the GRC order. To the extent that the judgment included a conclusion that the MVFD was a public agency that was itself subject to OPRA demands, the Court disapproves of that analysis and modifies the judgment accordingly, (pp. 24-26)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

          JUSTICE ALBIN, DISSENTING IN PART AND CONCURRING IN PART, finds that a fire district retains its nature as a political subdivision despite the label or lack of label given it. In Justice Albin's view, the District is a "political subdivision" of the State and the MVFD is an "instrumentality" of the District that meets OPRA's definition of "public agency, " and therefore its records are subject to scrutiny. Even if the District were an instrumentality of the municipality, the MVFD should be deemed the same instrumentality for OPRA purposes.

          JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TEVIPONE join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate, partially dissenting and partially concurring opinion, in which CHIEF JUSTICE RABNER joins.

          LAVECCHIA, JUSTICE.

         In this appeal we review a judgment requiring the release, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, of the constitution and bylaws of a volunteer fire company that is a member of a fire district established pursuant to N.J.S.A. 40A:14-70. We hold that the fire district, to which the OPRA request was made, is obliged to release such documents in its possession or to obtain them from a member volunteer fire company under its supervision and release them. OPRA demands such transparency and accountability of public agencies, and the fire district is undoubtedly a public agency subject to OPRA. We therefore affirm the judgment in that respect. However, to the extent the holding under review also concluded that the member volunteer fire company is a "public agency" subject directly and independently to OPRA requirements, we disagree and modify for the reasons expressed herein.

         I.

         On February 28, 2013, plaintiff Robert A. Verry submitted a public records request to Franklin Fire District No. 1 (District), seeking disclosure of the constitution and bylaws of the Millstone Valley Fire Department (MVFD), a volunteer fire company operating within the District. The District denied the request on the basis that it does not maintain such documents for its member companies. Verry filed a complaint with the Government Records Council (GRC), which created the record on which we review this matter.

         A.

         By way of background, the MVFD is a non-profit association incorporated on March 12, 1929 with the objective "to protect life and property from fire, by the usual means of fire companies." The MVFD operated independently as a volunteer fire company in Franklin Township for decades until 1973, when it requested membership in the already-existing District. The evidence in the record regarding the relationship between the MVFD and the District is contained in minutes from the 1973 meetings of the commissioners of the District and, of more recent vintage, contracts that have been entered into between the two.

         Members of the MVFD first expressed interest in joining the District at a meeting of the District's commissioners held March 26, 1973. The District contacted the township attorney to discuss the legality of the proposed merger, and a special meeting was held to explore the proposal on April 19, 1973. The District informed members of the MVFD that, in order to join the District, the volunteer company would be required to transfer title in all fire-fighting vehicles and equipment to the District. Annually, the MVFD would submit a budget to the commissioners. The size of the District's commission would not change from its five-person composition, but members of the MVFD would be eligible to run for a commission seat.

         The MVFD submitted vehicle and equipment lists to the District at a May 21, 1973 regular meeting and also reported that it would contact the township attorney to inquire as to the steps necessary to join the District. Several months later, at the District's regular meeting on November 26, 1973, it was reported that "Millstone Valley [had] been officially accepted in Fire District 1 by virtue of a Township Council resolution" dated October 25, 1973. There is no statutory reference explaining the "official acceptance" into the District. The MVFD has been partially funded by the District since 1974.

         Notwithstanding the MVFD's acceptance into the District through a resolution of the Township Council, the MVFD, as a member fire company operating within the District, annually enters into a contract with the District to provide firefighting services to the public. Through that contract, the MVFD receives public funds to cover the housing and maintenance of firefighting equipment owned by the District, training for the MVFD's members, and the purchase of new equipment.

         B.

         On February 28, 2013, Verry emailed an OPRA request to the District, seeking disclosure of the MVFD's constitution and bylaws in effect from 2007 through 2013. The next day, Verry received an email response from the District's only office employee, Dawn Cuddy, on behalf of the District's elected Records Custodian, Timothy Szymborski. The response stated that "there are no responsive records to [Verry's] request that the [D]istrict maintains." Verry replied, asserting that because the MVFD is under the statutory supervision and control of the District, the Records Custodian was obliged to obtain and produce responsive records regardless of whether the District regularly maintains them. Cuddy sent a follow-up email on March 11, 2013, informing Verry that the District does not consider the requested documents to be public records under OPRA and denying his request.

         Verry filed a denial-of-access complaint with the GRC, seeking an order compelling the District's Records Custodian to release records responsive to his request. In opposition, the Records Custodian filed a Statement of Information Form and a certification that the District's files had been searched prior to the denial to confirm that the MVFD's constitution and bylaws were not in the District's possession. Further, Szymborski also certified that, in his capacity as Commissioner of the District from 1986 to 1988 and from 2006 to the present, he was not aware that the District had ever maintained records of its member companies' internal bylaws or constitutions. Szymborski added that he requested the documents from the MVFD and that his request was denied. Finally, addressing the argument that the District was required to obtain the documents because, under N.J.S.A. 40A:14-70.1(b), volunteer fire companies such as the MVFD operate under the "supervision and control" of the fire district, Szymborski stated:

Although the requestor did cite [N.J.S.A. 40A:14-70.1 (b) ] . . . that statute does not require or mandate that the Fire District maintain a copy of a member Fire Department or Fire Company's Constitution and By-Laws. Nowhere could I find such a rule, regulation, statute, policy, or the like which required or mandated such a thing. Even the District's Attorney, whom I consulted with about the statute, was also unable to locate such a [requirement]. I understand that the member Companies/Departments are under the supervision and control of the District but that does not require or mandate that their own internal By-Laws and Constitution be provided to the District. . . . The member Companies and Departments can adopt their own internal rules, regulations, By-Laws and Constitution which is their own document and not a Fire District wide document.

Verry's reply disputed the District's legal position.

         The GRC considered the parties' submissions and its Executive Director's proposed Findings and Recommendations at a public meeting on April 29, 2014. The Executive Director's proposed findings addressed a threshold issue, not thoroughly briefed by the parties: whether the MVFD is a "public agency" for purposes of OPRA. The findings stated, in relevant part:

Notwithstanding that MVFD was likely created by the volunteer membership, [it] is clear that member companies within a fire district exercise a government duty and are under the supervision and control of the district, which is clearly a "public agency." N.J.S.A. 40A:14-70.1. In essence, although the creation of a volunteer fire company is reserved only for the membership, said ...

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