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

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

Robert A. Verry v. Franklin Fire District No. 1 (A-77-15) (077495)

Argued March 27, 2017 -- Decided August 7, 2017

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. 47:1A-1. OPRA’s disclosure requirements apply to public agencies. The definition of

1

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 a political 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, a fire 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 TIMPONE join in JUSTICE

LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, partially dissenting and partially concurring

opinion, in which CHIEF JUSTICE RABNER joins.

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SUPREME COURT OF NEW JERSEY

A-77 September Term 2015

077495

ROBERT A. VERRY,

Respondent,

v.

FRANKLIN FIRE DISTRICT NO. 1,

Appellant,

and

MILLSTONE VALLEY FIRE DEPARTMENT,

Respondent.

Argued March 27, 2017 – Decided August 7, 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).

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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).

JUSTICE LaVECCHIA delivered the opinion of the Court.

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

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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

3

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.

4

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

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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

6

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 company

organizing within a fire district is expressly

required to apply to the district.

The proposed findings concluded 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.”

The GRC unanimously adopted the Findings and

Recommendations of its Executive Director, and in an interim

order, dated May 1, 2014, required the District to obtain the

requested documents from the MVFD and to turn them over to

Verry. To the extent individuals at the MVFD refused to provide

the documents, the GRC ordered those individuals to identify

themselves and to provide a lawful basis for withholding the

records. The GRC deferred consideration of whether Szymborski

knowingly and willfully violated OPRA and whether Verry was a

prevailing party under the statute.

7

The District moved for reconsideration, arguing that the

GRC had misapplied the “creation test” established in Fair Share

Housing Center, Inc. v. New Jersey State League of

Municipalities, 207 N.J. 489 (2011), to address the scope of

OPRA’s coverage. The MVFD also filed a brief in support of the

reconsideration motion, arguing that, in addition to its

firefighting functions, the MVFD operates as a social

organization and that subjecting it to the burden of OPRA

compliance would dissuade future members from joining. The MVFD

urged the GRC, should it sustain its interim order finding the

volunteer department to be subject to OPRA, to permit redaction

of information relating to its social activities. The GRC

denied reconsideration and reaffirmed its prior interim order.

The District sought leave to appeal to the Appellate

Division and also sought and obtained a stay of the GRC’s order

pending appeal. On April 16, 2015, the Appellate Division

granted leave to appeal and ordered the parties to address, in

particular, “whether [Paff v. New Jersey State Firemen’s Ass’n],

431 N.J. Super. 278 (App. Div. 2013), or any of the analysis in

that opinion, bears upon the issue in this appeal.” Following

oral argument, the panel directed that the MVFD be joined as a

party.

In an unpublished decision issued March 15, 2016, the

Appellate Division affirmed the GRC’s interim order, concluding

8

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. In particular, the

panel rejected the District’s reliance on a prior decision of

the GRC, Carrow v. Borough of Newfield, in which a volunteer

fire company was found not to be a public agency. The panel

explained that, in Carrow, a fire district was not involved;

rather, the volunteer company contracted directly with a

municipality. By contrast, based on the MVFD’s membership in

the District by virtue of a township resolution, 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,” (citing N.J. State Firemen’s Ass’n,

supra, 431 N.J. Super. at 289-90).

The Appellate Division did not reach whether the MVFD

should be permitted to withhold records unrelated to its

governmental function of firefighting, noting that the interim

order left open the possibility that the MVFD might come forward

with “a lawful basis for not providing” the requested records,

such as an OPRA exemption. The panel remanded the matter for

further proceedings before the GRC.

The GRC stayed its interim order pending the District’s

motion for leave to appeal to this Court. On June 1, 2016, we

9

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. We thereafter granted

motions to expand the record on appeal to include the parties’

appellate division briefs and appendices, to allow the MVFD to

participate, and to allow the American Civil Liberties Union of

New Jersey (ACLU-NJ) to participate as amicus curiae.

II.

A.

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. 47:1A-1. We have frequently explained the import of

OPRA’s broad public policy in favor of public access to

government records, which serves to “maximize public knowledge

about public affairs in order to ensure an informed citizenry

and to minimize the evils inherent in a secluded process.”

Mason v. City of Hoboken, 196 N.J. 51, 64-65 (2008) (quoting

Asbury Park Press v. Ocean Cty. Prosecutor’s Office, 374 N.J.

Super. 312, 329 (Law Div. 2004)).

OPRA’s disclosure requirements apply to public agencies.

OPRA defines “public agency” or “agency” as:

10

[A]ny of the principal departments in the

Executive Branch of State Government, and any

division, board, bureau, office, commission or

other instrumentality within or created by

such department; the Legislature of the State

and any office, board, bureau or commission

within or created by the Legislative Branch;

and any independent State authority,

commission, instrumentality or agency. The

terms also mean 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 a political subdivision or combination of

political subdivisions.

[N.J.S.A. 47:1A-1.1.]

This appeal requires application of that statutory

definition. In matters of statutory interpretation, our review

is de novo. Saccone v. Bd. of Trs. of Police & Firemen’s Ret.

Sys., 219 N.J. 369, 380 (2014) (noting that interpretation of

statute is “question of law subject to de novo review” on

appeal). The language of the statute that defines “public

agency” for OPRA purposes is paramount in this dispute.

The above-quoted definition of public agency defines the

term in two sentences addressing distinct categories of public

agencies. The first sentence captures a group of public

agencies in the Executive and Legislative Branches of State

government, including subparts to and creations of the Executive

and Legislative branches, as well as various types of

11

independent state entities. The case before us does not

implicate that first part of the public agency definition.

The second sentence of the definition is the pertinent

section for present purposes. To reiterate, that sentence

designates certain other entities as public agencies subject to

OPRA, specifically political subdivisions of the State and

bodies sharing a basic connection to those political

subdivisions:

The terms also mean 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 a political subdivision or combination of

political subdivisions.

[N.J.S.A. 47:1A-1.1.]

The question before us is whether the request to the District

sought records of a public agency as defined in this latter

portion of the statutory definition.

B.

1.

The GRC, Appellate Division, and the parties all focus on

the volunteer fire squad when addressing whether the requested

documents should be turned over. We briefly summarize the

12

parties’ arguments on the application of the term “public

agency” in this matter.

The District argues that the proper test to determine

whether an entity is a “public agency” under OPRA should begin

with an examination of the “formation, structure, and function”

of the entity. The District argues that the MVFD was created as

a non-profit entity years before joining the District, that its

contract with the District relates only to “prevention and

extinguishment of fires and the regulation of fire hazards,” and

that the public funds it receives support only that function.

The District emphasizes that its contract with the MVFD allows

the MVFD to regulate its own internal affairs, such as the

appointment of its fire chief, without interference by the

District. In addition, the District maintains that New Jersey

State Firemen’s Ass’n, supra, 431 N.J. Super. at 287-89, was

misapplied in this matter and that the earlier GRC decision in

Carrow was improperly distinguished.

The MVFD joins in the arguments of the District.

2.

Verry first emphasizes OPRA’s language generally mandating

broad construction of its provisions in favor of the right of

access, and he adds that the definition of public agency in

N.J.S.A. 47:1A-1.1 is itself expansive. Second, Verry maintains

that, under New Jersey State Firemen’s Ass’n, supra, 431 N.J.

13

Super. at 287-89, as well as other OPRA case law, the MVFD

qualifies as a public agency under OPRA because it is an

instrumentality of the District serving a governmental function.

Verry notes that “no fire company can lawfully operate in a New

Jersey fire district unless and until it is authorized by the

fire district pursuant to N.J.S.A. 40A:14-70.1(a),” and he

contends that, therefore, the MVFD performs a “governmental

function” under the District’s “supervision and control.”

3.

The GRC filed a brief in support of its decision, which, it

contends, reached the correct result, is entitled to deference,

and should be upheld. The GRC explains that it regards the

“fact-sensitive inquiry” required in New Jersey State Firemen’s

Ass’n, supra, 431 N.J. Super. at 288-89, which focuses on an

entity’s “formation, structure, and function,” to be the

dispositive test, and it asserts that its findings in this

matter are consistent with that test.

4.

Amicus ACLU-NJ argues that the MVFD is a public agency

under OPRA because it is an instrumentality controlled by the

state and it carries out a traditional governmental function.

The ACLU-NJ quotes portions of the agreement between the

District and the MVFD to demonstrate the extent to which

government -- in the form of the District -- ultimately controls

14

the MVFD. Amicus also emphasizes that oversight of the MVFD,

through access to its records, is important due to the essential

government function served by the fire company and this state’s

strong public policy in favor of open government.

III.

In order to unravel the public access to information issue

before us under OPRA, it is necessary to begin with an

understanding of the nature of the entities at the center of

this dispute and how they fit within OPRA’s definition of public

agency. We turn first to the District, for that is the entity

to which Verry made his request. The nature of the District and

how it fits into OPRA’s structure is rather straightforward.

A.

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. In such municipalities, upon

application of the voters and following a hearing,

[i]f the governing body decides that the

designation of a fire district is appropriate,

it, by ordinance, shall designate a

territorial location or locations for use as

a fire district or fire districts and, by

resolution, provide for the election of a

board of fire commissioners for the district

or each district, to consist of five persons,

residents therein, and specify the date, time

and place for the election of the first board.

[Ibid.]

15

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 . . . . The said body corporate

shall have the power to acquire, hold, lease,

sell or otherwise convey in its corporate name

such real and personal property as the

purposes of the corporation shall require. .

. . Said body corporate may adopt and use a

corporate seal, sue or be sued and shall have

such powers, duties and functions as are usual

and necessary for said purposes.

[Ibid. (emphases added).]

No doubt the Legislature, in authorizing a municipality or

municipalities to choose to take action culminating in the

creation of this type of legislatively authorized body

corporate, conferred significant powers on a fire district.

Those powers include the ability to hold annual elections for

members of the board of commissioners of the fire district,

N.J.S.A. 40A:14-72; the power to create its own budget, N.J.S.A.

40A:14-78.1; and the capability to issue bonds and notes in

anticipation of bonds, N.J.S.A. 40A:14-86, -86.1. However, in

granting municipalities the power to create a fire district, the

Legislature did not provide that the fire district being created

would itself be a political subdivision. See Murray v.

16

Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (“It is not

our function to rewrite a plainly written statute or to presume

that the Legislature meant something other than what it conveyed

in its clearly expressed language.”).

Although a municipality is a political subdivision and has

long been understood as such, see, e.g., City of Jersey City v.

Martin, 126 N.J.L. 353, 361 (E. & A. 1941), the language used by

the Legislature to authorize the creation of a fire district

establishes the fire district as “a body corporate.” 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.” By

way of example, for the creation of county or municipal parking

authorities, the Legislature has provided that, “[t]he governing

body of any county or municipality may, by resolution or

ordinance, as appropriate, create a public body corporate and

politic and a political subdivision of the State to be known as

the ‘Parking Authority of the [county or municipality].”

N.J.S.A. 40:11A-4 (emphases added). Similarly, for Beach

Erosion Control Districts, the Legislature has provided that,

17

“[e]very Beach Erosion Control District shall be a public body

politic and corporate, constituting a political subdivision of

the State.” N.J.S.A. 40:68-40 (emphases added).1

The Legislature did not confer “political subdivision”

status on a fire district, however. Where the Legislature has

“pointedly omitted” a term from an enactment, we cannot presume

to write that term into the statute. See DiProspero v. Penn,

183 N.J. 477, 492 (2005) (quoting Craster v. Bd. of Comm’rs of

Newark, 9 N.J. 225, 230 (1952)). When established, a fire

district is a creation of a municipality -- which is undoubtedly

a political subdivision2 -- that utilizes authority available to

1 By way of further examples, the Legislature has expressly

declared the following, upon their formation, to be political

subdivisions: port authorities, N.J.S.A 40:68A-7 (“Every port

authority shall be a public body politic and corporate

constituting a political subdivision of the State . . . .”);

solid waste management authorities, N.J.S.A. 40:66A-38 (“Every

solid waste management authority shall be a public body politic

and corporate constituting a political subdivision of the State

. . . .”); environmental services authorities, N.J.S.A. 40:66A-7

(“Every incinerator or environmental services authority shall be

a public body politic and corporate constituting a political

subdivision of the State . . . .”); sewerage authorities,

N.J.S.A. 40:14A-7 (“Every sewerage authority shall be a public

body politic and corporate constituting a political subdivision

of the State . . . .”); and pollution control authorities,

N.J.S.A. 40:37C-4(a) (“Any county may create an authority under

the provisions of this act which shall be a public body

corporate and politic and a political subdivision of the State .

. . .”).

2 Municipal corporations derive their powers from the

Legislature, as described in our Constitution. N.J. Const. art.

IV, § 7, ¶ 11; see Wagner v. Newark, 24 N.J. 467, 474 (1957)

(Vanderbilt, C.J.) (collecting and explaining cases that

establish, as “fundamental in our law[,] that there is no

18

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. It is an entity “used to achieve an end or purpose.” See

League of Municipalities, supra, 207 N.J. at 503 (applying

generally accepted meaning of “instrumentality” for purposes of

OPRA). When created by a municipality, a fire district aids the

municipality in achieving the purpose of firefighting and fire

hazard protection for all or a portion of the municipality’s

geographic region. 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. As quoted earlier, 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, a fire district is subject to OPRA and must

respond to requests made under the statute.

B.

inherent right of local self-government beyond the control of

the State” and that political power flows to municipalities as

“creations of the State, limited in their powers and capable of

exercising only those powers of government granted to them by

the Legislature”); cf. League of Municipalities, supra, 207 N.J.

at 504 (referring to municipalities as political subdivisions).

19

We next consider whether the MVFD is a public agency under

OPRA. That the MVFD is a member volunteer company of the

District is conceded by all parties; however, the precise import

of that membership is a point of disagreement. The working

relationship between the District and the MVFD has apparently

been characterized by a degree of informality. On the one hand,

the District meeting minutes from 1973 reflect that the then-

existing volunteer firefighting squad petitioned to become part

of the District. On the other hand, the annual agreements

signed by the District and the MVFD suggest that their

relationship has recently been a contractual one. There may not

have been a need previously to clarify the nature of the

relationship. That said, the pertinent statute addressing

relationships between a fire district and volunteer squads

permits two specific types of relationships.

N.J.S.A. 40A:14-70.1 permits newly formed volunteer fire

companies to be created within a fire district; it also permits

a contractual relationship between a fire district and a

volunteer squad:

a. Any persons desiring to form a volunteer

fire company to be located within or otherwise

servicing the area encompassing a fire

district or other type of volunteer

organization which has as its objective the

prevention of fires or regulation of fire

hazards to life and property therein shall

first present to the board of fire

commissioners a written application for the

20

organization of such company. Such

application shall be in the form of a duly

verified petition signed by them stating the

kind of company which they desire to organize,

the name or title thereof, the number and

names of the proposed members thereof, and

their places of residence. The board of fire

commissioners, after considering such

application and approving the members of the

proposed company, may by resolution grant the

petition and constitute such applicants a

volunteer fire company of the district.

b. The board of fire commissioners of a fire

district not having a paid or part-paid fire

department and force may contract with a

volunteer fire company or companies for the

purpose of extinguishing fires, upon those

terms and conditions as shall be deemed

proper. The members of the company shall be

under the supervision and control of the board

of fire commissioners and in performing fire

duty shall be deemed to be exercising a

governmental function; however, the

appointment or election of the chief of the

volunteer fire company shall remain the

prerogative of the membership of the fire

company as set forth in the company’s

certificate of incorporation or bylaws.

[N.J.S.A. 40A:14-70.1.]

The key inquiry here is whether, by virtue of N.J.S.A.

40A:14-70.1, the MVFD is a “division, board, bureau, office,

commission or other instrumentality within or created by a

political subdivision of the State . . . [or an] independent

authority, commission, instrumentality or agency created by a

political subdivision.” N.J.S.A. 47:1A-1.1. As a member

volunteer squad under subsection (a) of N.J.S.A. 40A:14-70.1,

because it aids in fulfilling the greater fire district’s

21

purpose, a 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.3

Therefore, we cannot conclude from the language used by the

Legislature that it intended for a volunteer fire company to be

considered a separate public agency for OPRA purposes under

N.J.S.A. 40A:14-70.1(a).

Nor does a contract under N.J.S.A. 40A:14-70.1(b) establish

the type of relationship that fits within the second sentence of

the definition of public agency under OPRA. We discern no

3 Of course, as the dissent observes, municipalities may

contract directly with a volunteer fire company rather than

creating a fire district. N.J.S.A. 40A:14-68. Although such a

company would meet OPRA’s definition of a public agency, unlike

the MVFD, that outcome would result from the company’s direct

relationship with a municipality -- a political subdivision.

The various statutes governing municipal fire services have been

enacted by the Legislature over the course of many years and

allow for a number of permissible configurations for those

services. Unlike the dissent, we recognize that we are

constrained by plain statutory language that does not designate

fire districts as political subdivisions. Any alteration of

that language must come from the Legislature.

22

evidence that the Legislature intended for an entity under a

contractual relationship with an instrumentality of a political

subdivision to become a public agency for OPRA purposes. Thus,

no matter which category of N.J.S.A. 40A:14-70.1 might apply to

the MVFD due to its relationship with the District, neither

supports a conclusion that the MVFD itself has become a public

agency under OPRA, subject directly and independently to OPRA

demands.

C.

In reaching the conclusion that the District is a public

agency subject to OPRA but that the MVFD is not, we do not rely

on the reasoning in New Jersey State Firemen’s Ass’n, supra, 431

N.J. Super. at 287-89, which is distinguishable from the instant

matter. The New Jersey State Firemen’s Association, whose

records were sought under OPRA in that matter, was itself a

creation of the State Legislature. See N.J.S.A. 43:17-41.

Therefore, it is an entity that squarely fits under OPRA’s

parameters for a State agency under part of the first

definitional sentence: “any office, board, bureau or commission

within or created by the Legislative Branch; and any independent

State authority, commission, instrumentality or agency.”

N.J.S.A. 47:1A-1.1.

Similarly, we find distinguishable the analysis in Times of

Trenton Publishing Corp. v. Lafayette Yard Community Development

23

Corp., 183 N.J. 519 (2005), where we considered an entity that

was controlled and directed by governing members of a municipal

political subdivision, the City of Trenton. As we explained in

Lafayette Yard, supra, in that case “the Mayor and City Council

[had] absolute control over the membership of the Board of

Lafayette Yard and . . . the Corporation could only have been

‘created’ with their approval.” 183 N.J. at 535. Nothing in

our opinion today alters our conclusion that such an entity,

controlled and created with the approval of a political

subdivision, is itself a public agency under OPRA.

To the extent our prior decisions have discussed “creation”

or “governmental-function” tests when demarcating the boundaries

of what qualifies as a public agency, see, e.g., League of

Municipalities, supra, 207 N.J. at 507, such tests are useful

only insomuch as they effectuate application of the statutory

language. 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.

IV.

Having clarified the applicability of OPRA to the parties,

we turn next to examine the specific OPRA request submitted in

24

this case. We conclude that the District, upon receiving a

request for the constitution and bylaws of the MVFD, was

obligated to provide access to those documents because the

requested documents should have been on file with, or accessible

to, the District pursuant to its authority to supervise the

MVFD.

While we do not wish to be overly formalistic in drawing

lines between the two types of relationships that the MVFD might

actually have with the District, neither do we wish to

overextend the relationship between them. We need not 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 statutory provision, the District supervises the MVFD and

has certain responsibilities under OPRA to provide public access

to records relating to that supervision. Thus, even if the MVFD

is under fire-district supervision and control to the more

limited extent applicable to companies contracting with fire

districts under N.J.S.A. 40A:14-70.1(b), such supervision still

requires integration with obligations imposed under the

volunteer fire company’s constitution and bylaws:

The members of the company shall be under the

supervision and control of the board of fire

commissioners and in performing fire duty

25

shall be deemed to be exercising a

governmental function; however, the

appointment or election of the chief of the

volunteer fire company shall remain the

prerogative of the membership of the fire

company as set forth in the company’s

certificate of incorporation or bylaws.

[N.J.S.A. 40A:14-70.1(b).]

In order for a fire district’s commissioners to perform the

oversight function expected by the legislative mandate, a fire

district must have authority to review basic documents relating

to the internal organization and functioning of volunteer squads

working with that district. In this instance, the documents

requested from the MVFD must be either on file with the District

or subject to the District’s demand for production. As such,

they are documents necessary to the District’s performance of

its responsibilities and properly were ordered by the GRC to be

produced and provided to Verry.

We therefore affirm 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, separate and apart from the

District, we disapprove of that analysis and modify the judgment

accordingly.

V.

As modified, the judgment of the Appellate Division is

affirmed.

26

JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join

in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate,

partially dissenting and partially concurring opinion, in which

CHIEF JUSTICE RABNER joins.

27

SUPREME COURT OF NEW JERSEY

A-77 September Term 2015

077495

ROBERT A. VERRY,

Respondent,

v.

FRANKLIN FIRE DISTRICT NO. 1,

Appellant,

and

MILLSTONE VALLEY FIRE DEPARTMENT,

Respondent.

JUSTICE ALBIN, dissenting in part and concurring in part.

The majority has taken the wrong path to get to the right

destination, but that path may lead in the future to the

withholding of important documents that belong in the public

realm. I concur in the outcome of this case: the release of

the Millstone Valley Fire Department’s constitution and bylaws,

which are clearly public records open to inspection. I do not

agree, however, with the majority’s conclusion that the

Millstone Valley Fire Department -- or a similar volunteer fire

department that is part of a fire district -- is not a “public

agency” subject to New Jersey Open Public Records Act (OPRA),

N.J.S.A. 47:1A-1 to -13.

To reach its conclusion, the majority reverses sound

1

opinions rendered by the Government Records Council and the

Appellate Division and parses the language of OPRA in a way that

will lead to absurd results that the Legislature could not have

intended. Under the majority’s interpretation, volunteer fire

companies contracting directly with a municipality are subject

to OPRA, but the same fire companies that are members of -- or

contract with -- an independent fire district are not. A

sensible reading of OPRA does not compel that arbitrary

distinction.

Unlike the majority, I believe that the Franklin Fire

District No. 1 is a “political subdivision” of the State and the

Millstone Valley Fire Department is an “instrumentality” of the

District. For that reason, the Fire Department meets OPRA’s

definition of “public agency,” and therefore its records are

subject to public scrutiny. Accordingly, I respectfully

dissent.

I.

The term political subdivision, though not defined in our

State Constitution or any statute, has a somewhat elastic

meaning. A political subdivision “is an agency created for the

exercise, within the prescribed limits, of the governmental

functions and powers of the [S]tate.” City of Jersey City v.

Martin, 126 N.J.L. 353, 361 (E. & A. 1941); see also Black’s Law

Dictionary 1277 (9th ed. 2009) (stating that political

2

subdivision is “[a] division of a state that exists primarily to

discharge some function of local government”).

By that definition, according to the majority,

municipalities are political subdivisions, even though the

Legislature does not designate municipalities as such by

statute. The majority acknowledges that political subdivisions

include Beach Erosion Control Districts, N.J.S.A. 40:68-40;

county and municipal parking authorities, N.J.S.A. 40:11A-4;

sewerage authorities, N.J.S.A. 40:14A-7; solid waste management

authorities, N.J.S.A. 40:66A-38; and pollution control financing

authorities, N.J.S.A. 40:37C-4(a)-(b), to name a few. Ante at

___ (slip op. at 18 n.1). Those districts and authorities are

political subdivisions, says the majority, because the

Legislature has given them the name political subdivision.

Presumably, the Legislature gives the name political subdivision

only to those entities that possess the attributes of one.

The Franklin Fire District No. 1 possesses every

characteristic of a political subdivision, except the name.

Fire districts are creatures of statute. N.J.S.A. 40A:14-70.

On application of the voters, the governing body of a

municipality may pass an ordinance establishing a fire district

as a “body corporate” with “the power to acquire, hold, lease,

sell or otherwise convey . . . real and personal property.”

Ibid. The voters of a municipality elect the board of fire

3

commissioners, see ibid.; see also N.J.S.A. 40A:14-72, and

determine by ballot “the amount of money to be raised for the

ensuing year” for the fire district, N.J.S.A. 40A:14-72; see

also N.J.S.A. 40A:14-84. The fire district may borrow money

“for current expenses and necessary repairs to fire apparatus

and fire houses,” N.J.S.A. 40A:14-80, and taxes are separately

assessed on real property in the municipality to support the

fire district, N.J.S.A. 40A:14-79. Last, the fire district’s

commissioners have the same “powers, duties and functions” as a

municipality “relating to the prevention and extinguishment of

fires and the regulation of fire hazards.” N.J.S.A. 40A:14-81.

Just as a rose is a rose by any other name,1 so is a

political subdivision. A fire district retains its nature as a

political subdivision despite the label or lack of label given

to it. The Legislature has dubbed a municipal parking authority

“an agency and instrumentality of the municipality . . .

creating it,” N.J.S.A. 40:11A-4, and yet gives it the moniker of

“political subdivision.” The interchangeable use of the terms

“agency,” “instrumentality,” and “political subdivision” in that

statute and others, see N.J.S.A. 40:14A-7, :37C-4(a)-(b), :66A-

38, illustrates that the Legislature does not take a formalistic

approach in the classification of public bodies. The

1 See William Shakespeare, Romeo and Juliet act 2, sc. 2.

4

Legislature surely did not intend to classify a municipal

parking authority, whose members are appointed by the governing

body of a municipality, as a political subdivision, N.J.S.A.

40:11A-4, but not a fire district, for want of a name.

The purpose of OPRA is to make government records “readily

accessible for . . . the citizens of this State” and to construe

“any limitations on the right of access . . . in favor of the

public’s right of access.” N.J.S.A. 47:1A-1. That legislative

goal surely is not advanced by the majority’s strained

interpretation of the term political subdivision, an

interpretation that places fire companies, such as the one in

this case, beyond the reach of OPRA. Did the Legislature

“pointedly” omit the term political subdivision -- or for that

matter the terms agency and instrumentality -- from the fire

district statute, as the majority intuits? That is hard to

imagine.

Like the governmental authorities and Beach Erosion Control

Districts cited above, the Fire District is “an agency created

for the exercise . . . of the governmental functions and powers

of the state,” Martin, supra, 126 N.J.L. at 361, and therefore

is a political subdivision.

II.

It follows that if the Franklin Fire District No. 1 is a

political subdivision, the Millstone Valley Fire Department is

5

an “instrumentality” of the District. For OPRA purposes, an

“instrumentality” is “[a] thing used to achieve an end or

purpose” or “[a] means or agency through which a function of

another entity is accomplished, such as a branch of a governing

body.” Fair Share Hous. Ctr. v. N.J. State League of

Municipalities, 207 N.J. 489, 503 (2011) (alterations in

original) (quoting Black’s Law Dictionary 814 (8th ed. 2004)).

The primary mission of the Fire District is to prevent and

extinguish fires and to regulate fire hazards. See N.J.S.A.

40A:14-81. The Millstone Valley Fire Department is an

instrument through which that mission is accomplished. In 1973,

the Millstone Valley Fire Department was accepted into the Fire

District. The members of the fire company are “under the

supervision and control of the [Fire District] and in performing

fire duty shall be deemed to be exercising a governmental

function.” N.J.S.A. 40A:14-70.1(b). Each year, the Millstone

Valley Fire Department contracts with the District to provide

firefighting services and receives public funds for the training

of its members, the housing and maintenance of the District’s

firefighting equipment, and the purchase of new equipment.

Notably, under N.J.S.A. 40A:14-68, a municipality “may

contract with a volunteer fire company or companies . . . for

purposes of extinguishing fires,” and the members of those

companies, “in performing fire duty [are] deemed to be

6

exercising a governmental function.” No one questions that such

volunteer fire companies are instrumentalities of a political

subdivision subject to the disclosure requirements of OPRA.

It is difficult to conceive that the Legislature, for OPRA

purposes, intended the records of volunteer fire companies

aligned with a municipality to be open for inspection and those

aligned directly with a fire district to be free from public

scrutiny, except as the fire district may be required to

disclose certain records. Our canons of statutory

interpretation instruct us to harmonize congruent statutory

provisions with the understanding that the Legislature does not

intend its enactments to lead to absurd results. See DiProspero

v. Penn, 183 N.J. 477, 492-93 (2005).

I cannot conclude, as does the majority, that the Millstone

Valley Fire Department is an “instrumentality of an

instrumentality” of a subdivision and therefore not a public

agency subject to OPRA. Ante at ___ (slip op. at 22).

Moreover, even if the Fire District were an instrumentality of

the municipality, the Millstone Valley Fire Department is so

woven into the fabric of the Fire District -- having no

existence outside the District -- it should be deemed the same

instrumentality for OPRA purposes. If the Millstone Valley Fire

Department were subject to OPRA, then it could designate the

Fire District as the records custodian, with the District’s

7

consent.

III.

Clearly, the majority mitigated the harshness of its

decision by ordering the documents sought to be released through

the Fire District. But, nevertheless, the majority’s holding is

that the records of the Millstone Valley Fire Department -- an

agency that receives public funds and carries out a government

function relating to public safety -- are not subject to OPRA,

except to the extent the Fire District has access to those

records. I do not believe that result can be squared with

OPRA’s language or purposes. And it certainly does not further

the Legislature’s intent “to bring greater transparency to the

operations of government and public officials.” Paff v.

Galloway Township, ___ N.J. ___, ___ (2017) (slip op. at 15).

I therefore respectfully dissent.

8