NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A
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ROBERT A. VERRY, Respondent,

v. FRANKLIN FIRE DISTRIC T NO. 1, Appellant , and
MILLSTONE VALLEY FIRE DEPARTMENT , Respondent.

______________________________ ____ __

Argued January 4, 2016

– Decided Before Judges Sabatino, Accurso and O'Connor
. On appeal from the Government Records Council. Dominic P. DiYanni argued the cause for appellant (Eric M. Bernstein & As sociates, LLC, attorneys; Mr. Di Yanni, of counsel and on the brief). Walter M. Luers argued the cause for respo n dent Robert A. Verry. Debra A. Allen, Deputy Attorney General, argued the cause for respondent Government Records Council (John J. Hoffman, Acting Attorney General, attorney; Melissa Dutton March 15, 2016A
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- 14T2 2 Schaffer, Assistant Attorney General, of counsel; Ms. Allen, on the brief). Lamb Kretzer, LLC, attorney s for respondent Millstone Valley Fire Department (Aldo J. Russo, on the brief).
PER CURIAM This matter comes before us on leave granted to review an interim order of the Government Records Council (GRC) finding that Millstone Valley Fire Department is an "instrumentality" of the Franklin Fire District No.1 and thus a "public agency" subject to the Open Public Records Act (OPRA), N.J.S.A. 47:1A

- 1
to
- 13. Because we agree with the GRC that the Fire Department is a public agency under the analysis in Paff v. N.J. State Firemen's Ass'n , 431 N.J. Super. 278 (App. Div. 2013) , we affirm. The essential facts are undisputed. In February 2013, plaintiff Robert A. Verry made a public records request of the Franklin Fire D istrict seeking the constitution and by

- laws for the Millstone Valley Fire Depar tment in effect from 2007 to 20 13. After the Fire District denied Verry's request on the ground s it did not maintain such records for its member departments or fire companies and that the documents were not government records in any event , Verry filed a complaint with the GRC.A
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- 14T2 3 The GRC accepted the submissions of Verry and the Fire District and determined that the Fire Department is a public agency for purposes of OPRA. The G RC began its analysis by establishing a point neither party d isputes : the Fire D istrict is a public agency for purposes of OPRA. See N.J.S.A. 40A:14

- 70 (establishing the procedure for creation and designation of fire districts). Although ack nowledging th e Fire Department was privately created as a volunteer organization by its members, the GRC found that when the Department applied and was accepted into membership by the Fire District pursuant to N.J.S.A. 40A:14

- 70.1 , it became a n instrumentality of the District, serving a governmental function under the District's supervision and control . Because the relationship between the Fire District and the Fire Department " owes its existence to state law, " Firemen's Ass'n , supra , 431 N.J. Super. at 290, the GRC

c oncluded the Fire Department was a public agency subject to
OPRA. The GRC accordingly issued an interim order to that effect and directed the District's records custodian to obtain the responsive records from the Fire Department and provide access
to V erry. The Council deferred analysis of whether the Di strict's record s custodian had willfully violated OPRA and whether Verry was a prevailing party entitled to attorney's feesA
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- 14T2 4 pending the custodian's compliance with the Council's interim order. The Distr ict moved for reconsideration , contending the GRC misapplied the "creation test" establish ed by the Supreme C ourt in Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities , 207 N.J. 489 (2011) , in determining that the Fire Department was a publ ic agency under OPRA. The Fire Department filed an "amicus brief" with the GRC supporting t he District's motion. The Department joined in the District's arguments and also contended that it, like many ot her volunteer fire companies, i s both a fire company and a social organization. It noted its lack of paid staff, the burden of having to respond to records requests within the required timeframes and the possibility that subjecting it to OPRA might dissuad e volunteers from becoming fire fighters. Although contending it was not a public agency required to allow access to its records under OPRA , the Fire Department argued t hat if the GRC disagreed, it should at least allow the Department to redact any information relating to the Department's social a ctivities. The GRC denied the District's motion for reconsideration but granted it a stay to permit it to file a motion for leave to appeal to this court. The District and the Fire Department , which we directed be joined as a party following oral argumen t , renew the argumentsA
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- 14T2 5 they made to the GRC. 1 Specifically, they contend the Fire Department is not a public agency under OPRA and that the GRC improperly applied the "creation" and "governmental function " tests of the League of Municipalities , supra , 207 N.J. at 507

- 08 and Sussex Commons Assocs., LLC v. Rutgers , 210 N.J. 531, 546

- 47 (2012). They argue the GRC should have looked to its own agency precedent on volunteer fire companies where it deemed the Newfield Fire Company not a public agency under OPRA. See
Carrow v. B orough of Newfield , GRC Complaint No. 2012

- 111 (Feb. 26, 2013)
. 2 We are not persuaded by those arguments. Our review of administrative agency actions is limited. In
re Herr mann , 192 N.J. 19, 27 (2007). We will not upset a n agency's decision absent a clear sho wing it is arbitrary, capricious, or unreasonable, that it la cks substantial support in the record or it violates express or implied legislative policies. Aqua Beach C ondo
. Ass'n v. Dep't of Comty. Affairs , 186 N.J. 5, 15

- 16 (2006). Although our review of a purely legal issue is de novo , see Saccone v. Bd. of Trs. of the Police & Firemen's Ret. Sys. , 219 N.J. 369, 380 (2014), we accord substantial deference to an agency's inter pretation of a statute it is charged with administering. See N.J. Soc'y for the

1 The Department has not requested oral argument.

2 http://www.state.nj.us /grc/decisions/pdf/2012

- 111.pdf
.A
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- 14T2 6 Prevention of Cruelty to Animals v. N.J. Dep't of Agric. , 196
N.J. 366, 38 5 (2008) . Because the GRC is charged with administering OPRA, N.J.S.A. 47:1A

- 7b , i ts holdings regarding the scope of the statute are entitled to deference. McGee v. Twp. of E. Amwell , 416 N.J. Super. 602, 616 (App. Div. 2010). There is no dispute that the Millstone Valley Fire Department began its existence in 1929 as a not
- for

- profit entity incorporated by a group of private citizens "to protect life and property from fire, by the usual means of fire companies." Accordingly, were one to look only to its creation, it would follow the Fire Department could not be considered an instrumentality or agency of the Fire District and thus not a public agency subject to OPRA. See League of Municipalities , supra , 207 N.J. at 5 0 4 (explaining the creation of the Leag ue of Municipalities by member municipalities p ursuant to statutory authority made it a public agency under the creation test , consistent with the Court's holding in The Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp. , 183 N.J. 519, 535

- 36 (2005)).
But t he determination of whether an entity is a public agency or instrumentality subject to OPRA requires a fact

sensitive inquiry that looks beyond mere form
. Fi remen's Ass'n , supra , 431 N.J. Super. at 288. The District and the Department do not dispute that the Fire Department perform s a traditionalA
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- 14T2 7 governmental function , fire fighting, under the supervision and
contro l of a public agency, the Fire District , through an allocation of significant tax revenues it receives for that
purpose . The salient fact here is that since 1974, it has done so as a member company of the Franklin Fire District. In 1973 , the Millstone Valley Fire Department applied to become part of the Franklin Fire District pursuant to N.J.S.A. 40A:14

- 70.1 a . The District's board of fire commissioners gran t ed the application , apparently on the basis of a Township C ouncil resolution, and the Fire Department has been a member company of the District since 1974. Accordingly, we reject the argument that the ir relationship is controlled entirely by contract, a s was the relationship between the fire company and the Borough in Carrow . 3 Viewing the Fire Department's "formation, structure, and function , " we have no hesitation in agreeing with the GRC that the Fire Department, at least since 1974, has become an ins trumentality of the

3 Carrow did not involve a fire district. Instead, the Borough of Newfield contracted directly with a volunteer fire company pursuant to N.J.S.A. 40A:14

- 68. See Newfield Fire Co. No. 1 v. Borough of Newfield , 439 N.J. Sup er. 202, 206

- 07 (App. Div. 2015) (involving the same parties); Carrow , supra , No. 2012

- 111 (slip op. at 10) . Although decisions of the GRC are not binding on us, N.J.S.A. 47:1A

- 7e ; O'Shea v. Twp. of West Milford , 410 N.J. Super. 371, 382 (App. Div. 2009), we agree with the Council that the different factual scenarios make Carrow inapposite here.A
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- 14T2 8 District and thus a public agency subject to OPRA. See
F iremen's Ass'n , supra , 431 N.J. Super. at 289

- 90. Both the District and the Department argue that if the Fire Department is considered a public agency subject to OPRA, only those records which relate to the governmental function it performs on behalf of the D istrict should be available under OPRA and only through the Fire District. They contend that no public purpose is served by any broader release of the Fire Departme nt's documents and that real public harm might result from imposing OPRA's burdens on all

- volunteer fire companies. Verry dismisses that argument by noting that there is no "burdensome exception" to complying with OPRA and no basis for any "carve

- out" for the Department's documents. We do not decide the issue. We granted leave to review the GRC's interim order declaring the Fire Department an instrumentality of the District and thus a public agency subject to OPRA. Although the GRC ordered the District t o produce documents responsive to Verry's request, it did so "in the absence of any exemption applying to the responsive records." Further, in the event the District could not comply because the Department refused to disclose the documents, the GRC allowe d the Fire Department to come forward with "a lawful basis for n ot providing" the records. Because these matters raise important issues that should be decided by the GRC in the first instance,A
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- 14T2 9 Paterson Redevelopment Agency v. Schulman , 78 N.J. 378, 386

- 87 , cert. denied , 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979), we decline to address them here. We affirm the GRC's interim order finding that Millstone Valley Fire Department is an "instrumentality" of the Franklin Fire District and thus a "public agency" subject to OPRA and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Affirmed and remanded.