Are Municipal Fire Companies Subject to the Open Public Records Act?
Aug 30, 2017 | Written by: Richard P. Cushing, Esq. | Share
For a number of years, there have been vexing questions as to whether volunteer fire companies are considered public entities or simply a group of volunteers who get together to fight fires. The uncertainty arises from the fact that fire companies consist of a group of self-governing individuals who volunteer to fight fires without significant oversight from municipal officials. Volunteer firemen often raise significant funds for their operation; they independently elect officers, provide for their own training and often purchase significant amounts of their own equipment. On the other hand, the municipality in which they are located must permit their operation, often makes significant financial contributions, and frequently approves membership. Many municipalities have ordinances establishing the creation or recognition of volunteer fire departments and those ordinances exercise various levels of control. In addition, municipalities fund large capital expenditures for heavy fire equipment and make Length of Service Award Program (LOSAP) contributions. Furthermore, while volunteer fire companies agree to fill the municipal function of firefighting, they also operate as social or fraternal organizations that provide recreational, educational and other benefits to members.
While the peculiar hybrid relationship between a municipality and its volunteer fire company or companies usually works quite well, one strain in the relationship arises when a request for records is made to a volunteer fire company under the Open Public Records Act (OPRA) law. Volunteer firemen usually treasure their independence from municipal control and often bristle when control is exercised. Unlike municipalities, they are not used to strangers demanding copies of their records. So, fire companies often believe they are not required to respond to such requests. The answer to the question of whether OPRA governs fire companies has often been debated. A recent case answers this question.
OPRA establishes a requirement that government records be readily available for inspection and copying, finding such access to be in the public interest. OPRA’s disclosure requirements apply to public agencies, which include any political subdivision of the State and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State. A municipality is a political subdivision of the State. The question is whether a volunteer fire company is an instrumentality of a municipality.
The Supreme Court Decision
On August 7, 2017, the New Jersey Supreme Court decided this question in Robert A. Verry v. Franklin Fire District No. 1, (A-77-15) (077495). Although the facts in that case involve a volunteer fire company that was part of a fire district, the case lends support that an OPRA request directed to a volunteer fire company relating to matters involving firefighting activities must be responded to in accordance with OPRA’s requirements.
While the Verry case had peculiar facts and reached the conclusion that a volunteer fire company that contracts with or becomes part of a fire district is not subject to OPRA, the language in the Opinion and the dissent strongly suggests that a volunteer fire company that contracts with a municipality or becomes by ordinance a department of a municipality is subject to an OPRA request.
The Verry decision spent considerable time discussing whether a fire district was a “political subdivision” or an “instrumentality of a political subdivision,” but that distinction is not relevant to the question of whether OPRA applies to a volunteer fire department that either contracts with or is recognized as a department of a municipality.
In footnote No. 3, on page 22 of the Opinion, the Court made the following statement:
Of course, as the dissent observes, municipalities may contract directly with a volunteer fire company rather than creating a fire district. N.J.S.A. 40A:14-68. Although such a company would meet OPRA’s definition of a public agency, unlike the MVFD [Millstone Valley Fire Department], that outcome would result from the company’s direct relationship with a municipality – a political subdivision. The various statutes governing municipal fire services have been enacted by the Legislature over the course of many years and allow for a number of permissible configurations for those services. ***[Emphasis added]
In the use of this language, the Supreme Court has given clear support that a volunteer fire company that contracts with a municipality in accordance with N.J.S.A. 40A:14-68 would be considered a public agency, and, therefore, subject to OPRA. Many municipalities do not have a formal contract with their departments, but recognize and authorize by ordinance the fire department to fulfill firefighting functions within their jurisdictions. Such an ordinance would strongly support that the fire company is a political subdivision or at least an instrumentality of the municipality, subject to OPRA.
Accordingly, my opinion is that if the municipal clerk receives an OPRA request seeking records from a volunteer fire company that either contracts with or is acknowledged by ordinance to be a department of the municipality, that request needs to be fulfilled. There is an interesting nuance involving the social aspect of volunteer fire companies that was briefly alluded to, but not directly discussed, by the Supreme Court. This issue concerns whether a third party would have the right to request documents from the fire company that pertain exclusively to its social functions. Although it is somewhat hard to envision exactly what those documents might be, an argument could be made that such a request does not have to be fulfilled, since such documents would not relate to the core firefighting function in which the public would have a legitimate interest. However, my sense is the Government Records Council or a Court would lean toward greater disclosure and would look skeptically on a refusal to produce records unless there was a clear indication that such records related exclusively to the social function of a volunteer fire department.
Richard P. Cushing, Esq., is a senior partner with Gebhardt & Kiefer, PC. He is a trial and municipal lawyer who specializes in complex litigation, land use matters, employment law, and the representation of public entities, corporations and insurance companies. Contact Mr. Cushing at 908-735-5161 or via email.
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