Verry v. Franklin Fire Dist. No. 1
| Decision Date | 07 August 2017 |
| Docket Number | A–77 September Term 2015,077495 |
| Citation | 230 N.J. 285,166 A.3d 1140 |
| Parties | Robert A. VERRY, Respondent, v. FRANKLIN FIRE DISTRICT NO. 1, Appellant, and Millstone Valley Fire Department, Respondent. |
| Court | New Jersey Supreme Court |
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 Brombergand Jeanne LoCicero, on the brief).
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.
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.
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.
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 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.
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, 25 A .3d 1063 (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...
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