Robert A. Verry v. Franklin Fire District No. 1 (Somerset) (077495) (Statewide)
166 A.3d 1140
N.J.2017Background
- Plaintiff Robert Verry submitted an OPRA request to Franklin Fire District No. 1 for the constitution and bylaws of Millstone Valley Fire Department (MVFD), a volunteer fire company operating in the District.
- The District denied the request, stating it did not maintain MVFD’s internal documents; Verry filed a denial-of-access complaint with the Government Records Council (GRC).
- MVFD: nonprofit volunteer company incorporated in 1929; accepted into the District in 1973 by township resolution and since the 1970s has received public funding and annually contracts with the District for firefighting services.
- Statute governing relationships: N.J.S.A. 40A:14-70.1(a) permits volunteer companies to be constituted within a fire district; subsection (b) permits contractual relationships and provides that members are under the board’s supervision and control.
- GRC and Appellate Division found MVFD to be a “public agency” under OPRA and ordered the District to obtain and produce the records; the District appealed to the New Jersey Supreme Court.
- Supreme Court affirmed that the fire district is a public agency under OPRA and must produce responsive MVFD records in its possession or obtain them from MVFD, but held MVFD itself is not a public agency subject directly to OPRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MVFD is a “public agency” under OPRA | MVFD is an instrumentality performing governmental functions under District supervision; thus subject to OPRA | MVFD is a private nonprofit that predates and retains internal autonomy; not a public agency | MVFD is not itself a public agency under OPRA; it is an instrumentality of an instrumentality and lacks the direct statutory tie to a political subdivision required by OPRA |
| Whether the fire district is a “public agency” under OPRA | N/A (plaintiff sought records from District) | District argued it is not a political subdivision but acknowledged it is an entity created under statute | Fire district is an instrumentality created by a political subdivision and therefore a public agency under OPRA; must respond to OPRA requests |
| Whether the District must produce MVFD constitution and bylaws (or obtain them) | District, supervising MVFD, must have or obtain those records and produce them under OPRA | District claimed it does not maintain those documents and statute does not require it to keep members’ internal bylaws | District must produce responsive MVFD documents in its possession or obtain them from MVFD and provide them to requester |
| Proper test to determine OPRA coverage (creation/function) | Favor broad application: entities performing governmental functions under public control qualify | Focus on formation, structure, and function; MVFD’s nonprofit origin and internal autonomy weigh against classification as public agency | Court applies statutory definition over flexible creation/governmental-function tests: direct statutory tie to a political subdivision determines OPRA coverage |
Key Cases Cited
- Fair Share Hous. Ctr. v. N.J. State League of Municipalities, 207 N.J. 489 (2011) (discusses tests for public-agency status and meaning of "instrumentality")
- Times of Trenton Publ’g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005) (entity created or controlled by a political subdivision can be a public agency)
- Mason v. City of Hoboken, 196 N.J. 51 (2008) (OPRA’s broad public-access policy and principles of construction)
- Murray v. Plainfield Rescue Squad, 210 N.J. 581 (2012) (statutory construction principles and limits on importing omitted statutory terms)
- Paff v. Galloway Twp., 229 N.J. 340 (2017) (recognizes OPRA’s purpose to increase governmental transparency)