NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3635-14T2

ROBERT A. VERRY,

Respondent,

v.

FRANKLIN FIRE DISTRICT 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 & Associates, 

LLC, attorneys; Mr. DiYanni, of counsel and 

on the brief).

Walter M. Luers argued the cause for 

respondent 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, 2016
2 A-3635-14T2

Schaffer, Assistant Attorney General, of 

counsel; Ms. Allen, on the brief).

Lamb Kretzer, LLC, attorneys 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 District seeking the constitution and by-laws for 

the Millstone Valley Fire Department in effect from 2007 to 

2013. After the Fire District denied Verry's request on the 

grounds 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. 
3 A-3635-14T2

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 GRC began its analysis by 

establishing a point neither party disputes: the Fire District 

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 acknowledging the 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 an 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 

concluded 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 Verry. The Council deferred analysis of whether the 

District's records custodian had willfully violated OPRA and 

whether Verry was a prevailing party entitled to attorney's fees 
4 A-3635-14T2

pending the custodian's compliance with the Council's interim 

order.

The District moved for reconsideration, contending the GRC 

misapplied the "creation test" established by the Supreme Court 

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 public agency under OPRA. The Fire 

Department filed an "amicus brief" with the GRC supporting the 

District's motion. The Department joined in the District's 

arguments and also contended that it, like many other volunteer 

fire companies, is 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 

dissuade volunteers from becoming firefighters. 

Although contending it was not a public agency required to 

allow access to its records under OPRA, the Fire Department 

argued that if the GRC disagreed, it should at least allow the 

Department to redact any information relating to the 

Department's social activities. 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 argument, renew the arguments 
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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. Borough 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 Herrmann, 192 N.J. 19, 27 (2007). We will not upset an 

agency's decision absent a clear showing it is arbitrary,

capricious, or unreasonable, that it lacks substantial support 

in the record or it violates express or implied legislative 

policies. Aqua Beach Condo. 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 interpretation 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.
6 A-3635-14T2

Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 

N.J. 366, 385 (2008). Because the GRC is charged with 

administering OPRA, N.J.S.A. 47:1A-7b, its 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 504 (explaining the creation of the League of 

Municipalities by member municipalities pursuant 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 the determination of whether an entity is a public 

agency or instrumentality subject to OPRA requires a factsensitive inquiry that looks beyond mere form. Firemen's Ass'n,

supra, 431 N.J. Super. at 288. The District and the Department

do not dispute that the Fire Department performs a traditional 
7 A-3635-14T2

governmental function, firefighting, under the supervision and 

control 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:14-70.1a. 

The District's board of fire commissioners granted the 

application, apparently on the basis of a Township Council

resolution, and the Fire Department has been a member company of 

the District since 1974. 

Accordingly, we reject the argument that their relationship 

is controlled entirely by contract, as 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 instrumentality 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. Super. 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. 
8 A-3635-14T2

District and thus a public agency subject to OPRA. See

Firemen'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 District 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 

Department'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 to 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 allowed 

the Fire Department to come forward with "a lawful basis for not 

providing" the records. Because these matters raise important 

issues that should be decided by the GRC in the first instance, 
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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.