                    NOT FOR PUBLICATION WITHOUT THE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 March 15, 2016

           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
           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.




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    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




                                  3                         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



                                  4                              A-3635-14T2
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.



                                  5                            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 fact-

sensitive 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



                                 6                        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.



                                 7                          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,



                                  8                           A-3635-14T2
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.




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