Robert A. Verry v. Franklin Fire District No. 1 (Somerset) (077495) (Statewide)
A-77-15
| N.J. | Aug 7, 2017Background
- In Feb. 2013, Robert Verry requested the Millstone Valley Fire Department’s constitutions/by‑laws (2007–2013) from the Franklin Fire District; the District denied the request.
- Verry filed a complaint with the Government Records Council (GRC), which concluded the Fire Department is an "instrumentality" of the Franklin Fire District and therefore a "public agency" subject to the Open Public Records Act (OPRA).
- The GRC ordered the District’s records custodian to obtain responsive records from the Fire Department and provide access to Verry, deferring questions about willful violation and attorney’s fees pending compliance.
- The District sought reconsideration, arguing the GRC misapplied the creation and governmental‑function tests from League of Municipalities and related cases; the privately formed Fire Department also argued it performs social functions and lacks paid staff.
- The Appellate Division granted leave, joined the Fire Department as a party, and affirmed the GRC’s interim order, holding that because the Department became a member company of the public Fire District in 1974 and performs firefighting under the District’s supervision and tax funding, it is an instrumentality subject to OPRA.
- The court declined to decide whether only records relating to governmental functions must be disclosed or whether exemptions/redactions apply, remanding those issues to the GRC for initial resolution.
Issues
| Issue | Verry's Argument | Franklin Fire District / Millstone Valley FD Argument | Held |
|---|---|---|---|
| Whether Millstone Valley FD is a "public agency" under OPRA | The Department is an instrumentality of the public Fire District and subject to OPRA | The Department is privately created; not a public agency; GRC misapplied creation/governmental‑function tests | The Department is an instrumentality/public agency under OPRA (affirmed) |
| Proper test to determine public‑agency status (creation vs. function) | Focus on functional relationship and statutory membership in the District supports public status | Creation/form and private origin preclude public‑agency classification | Court applies fact‑sensitive inquiry (Firemen's Ass'n approach) and finds instrumentality due to statutory membership and supervision |
| Whether only governmental‑function records are subject to OPRA | Access to records from the instrumentality is proper under OPRA (no carve‑outs argued by Verry) | Only records related to governmental functions should be public; social records should be exempt or redacted | Court did not decide; remanded to GRC to address exemptions/redactions |
| Applicability of prior GRC decision (Carrow) | N/A (Verry relied on broader statutory/functional analysis) | Carrow supports treating volunteer companies as non‑public where relationship was contractual | Court found Carrow inapposite because factual relationship here involves a fire district (not a borough contract) |
Key Cases Cited
- Paff v. N.J. State Firemen's Ass'n, 431 N.J. Super. 278 (App. Div.) (use of fact‑sensitive inquiry to determine instrumentality/public‑agency status)
- Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489 (2011) (creation and governmental‑function tests for public‑agency analysis)
- Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531 (2012) (discussion of governmental‑function analysis)
- The Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005) (creation test precedent)
- Paterson Redevelopment Agency v. Schulman, 78 N.J. 378 (1978) (administrative agencies should decide issues in the first instance)
- Newfield Fire Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202 (App. Div.) (contrasting factual scenario where a borough contracted with a private fire company)