(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1200-08T3
FAIR SHARE HOUSING CENTER, INC.,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
May 26, 2010
NEW JERSEY STATE LEAGUE OF
Argued March 16, 2010 - Decided May 26, 2010
Before Judges Skillman, Gilroy and
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket
Kevin D. Walsh argued the cause for
appellant (Fair Share Housing Center,
attorneys; Mr. Walsh, on the briefs).
Trishka Waterbury argued the cause for
respondent (Mason, Griffin & Pierson, and
Kearns, Reale & Kearns, attorneys; Ms.
Waterbury, of counsel and on brief; William
J. Kearns, Jr., of counsel).
The opinion of the court was delivered by
The issue presented by this appeal is whether the Open
Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, requires the
State League of Municipalities to provide public access to any
nonprivileged document generated in the course of the League's
operations. We conclude that the League is not subject to OPRA.
Municipalities are authorized by statute to join in an
N.J.S.A. 40:48-22 provides that
organization of municipalities.
"[a]ny municipality . . . may join with any other municipality
or municipalities in the formation of an organization of
municipalities, for the purpose of securing concerted action in
behalf of such measures as the organization shall determine to
be in the common interest of the organizing municipalities[.]"
See also N.J.S.A. 40:48-23.
However, the League was not formed by statute but
rather by action of its original members, who established a
nonprofit, unincorporated association and adopted a constitution
to govern its operations. The League's objectives, as described
in that constitution, include:
(1) The promotion of the general welfare of
the municipalities of this State; (2) The
improvement of municipal administration in
its several branches; (3) The maintenance of
a central office to serve as a clearing
house of information relating to the
functions of municipal government; (4) The
fostering of scientific studies of municipal
government by educational institutions and
the publication and distribution of reports
based on such research and study; (5) The
publication and circulation of an official
League magazine; (6) The study and advocacy
of necessary and beneficial legislation
affecting municipalities and the opposition
of legislation detrimental thereto; (7) The
holding of an annual conference and special
meeting for the discussion and study of
current municipal problems and the
techniques involved in their solution and
the sponsoring of training courses by the
League and State University; (8) The
providing of means whereby officials may
interchange ideas and experiences and obtain
In accordance with this statement of objectives, the League
pools information and resources for its members, publishes a
magazine that reports on a variety of issues affecting municipal
government, conducts educational programs for municipal
officials, provides legislative analysis and legislative
bulletins to its members, and maintains a library of municipal
ordinances. The League's officers also testify at legislative
hearings on a variety of issues of interest to municipal
government and sometimes participate as a party or amicus curiae
in litigation affecting municipalities generally.
No municipality is required to join the League.
Nevertheless, every municipality in the State is currently a
Approximately 16% of the League's revenue is derived from
dues assessed upon its members according to population. The
rest of its revenue is obtained from a variety of other sources
including the League's annual convention.
The issue of the right of public access to documents in the
League's possession was spawned by the League's expression of
opposition to the revised "Third Round" rules of the Council on
Affordable Housing (COAH) relating to the calculation and
satisfaction of the need for affordable housing, which COAH
proposed following our remand in In re Adoption of N.J.A.C. 5:94
& 5:95 by Council on Affordable Housing,
390 N.J. Super. 1 (App.
Div.), certif. denied,
192 N.J. 71, 72 (2007). In that
opposition, the League asserted that adoption of the proposed
rules would result in the imposition of substantial additional
tax burdens upon the owners of real property. Plaintiff Fair
Share Housing Center, a public interest organization that acts
as an advocate for affordable housing policies, sent a letter to
the League requesting production of any studies or other
documents supporting this assertion as well as any letters or
emails relating to the Third Round rules received by the League.
Fair Share claimed that the League was required by OPRA and the
common law right of access to public records to produce those
documents. The League denied Fair Share's request on the ground
that it is not subject to either OPRA or the common law right.
The League also directed Fair Share to its website, where its
public correspondence is posted.
Fair Share then brought this action in the Law Division.
Fair Share's complaint claimed that it was entitled to the
requested documents under both OPRA and the common law. The
case was brought before the court by an order to show cause.
Fair Share conducted limited discovery before the return date.
The parties agreed that the case presented purely legal issues
that could be decided based on the factual materials presented
in support of and in opposition to the order to show cause.
The trial court concluded in a lengthy written opinion that
the League is not subject to OPRA. In reaching this conclusion,
the court stated:
[T]he League is non-profit association
organized for the purpose of advancing the
interests of local government before the
three branches of State government and
providing educational and other services to
its member municipalities and local
government officials. . . . [T]he League
does not perform any governmental functions.
. . . Instead, the League is similar to
a trade association, serving in a lobbying
capacity and providing information to its
membership on matters affecting the
residents of the member municipalities.
The court's opinion did not directly address Fair Share's
claim under the common law right of access to public records.
However, the court entered an order dismissing Fair Share's
complaint in its entirety, including the count asserting the
common law right. Therefore, we deem that claim to have been
rejected even though not discussed by the court.
Fair Share's argument that OPRA provides a right of public
access to documents in the League's possession is based upon the
definition of "[p]ublic agency" or "agency" set forth in
N.J.S.A. 47:1A-1.1, which determines whether "[a]n entity is
subject to OPRA." Times of Trenton Publ'g Corp. v. Lafayette
Yard Cmty. Dev. Corp.,
183 N.J. 519, 535 (2005) (Lafayette
Yard). This definition states:
"Public agency" or "agency" means any
of the principal departments in the
Executive Branch of State Government, and
any division, board, bureau, office,
commission or other instrumentality within
or created by such department; the
Legislature of the State and any office,
board, bureau or commission within or
created by the Legislative Branch; and any
independent State authority, commission,
instrumentality or agency. The terms also
mean any political subdivision of the State
or combination of political subdivisions,
and any division, board, bureau, office,
commission or other instrumentality within
or created by a political subdivision of
the State or combination of political
subdivisions, and any independent authority,
commission, instrumentality or agency
created by a political subdivision or
combination of political subdivisions.
[N.J.S.A. 47:1A-1.1 (emphasis added).]
The first sentence of this definition clearly does not apply to
the League because it refers solely to the State Legislature,
departments in the Executive Branch of State Government and
other State agencies and instrumentalities. Thus, Fair Share's
argument relies solely upon the part of the definition of
"public agency" contained in the second sentence of N.J.S.A.
Fair Share's primary argument is that the League is a
"combination of political subdivisions" within the intent of the
second sentence because it was formed by its member
municipalities, which are indisputably political subdivisions.
However, to constitute a political subdivision, an entity must
provide some governmental service, such as education, police
protection, maintenance of roadways, sewage disposal, or urban
See Nw. Austin Mun. Util. Dist. No. One v. Holder, ___
U.S. ___, ___,
129 S. Ct. 2504, 2513,
174 L. Ed. 2d 140, 152
(2009) (citing Black's Law Dictionary 1197 (8th ed. 2004)).
Consequently, the only reasonable interpretation of "combination
of political subdivisions" in N.J.S.A. 47:1A-1.1 is a
combination of political subdivisions established to provide a
governmental service that otherwise would be provided by a
single political subdivision.
We note in this regard that in some circumstances the
statutes governing municipal corporations authorize
municipalities to provide governmental services in combination
with other municipalities by the creation of a separate entity
See, e.g., N.J.S.A.
to perform that governmental service.
40:14A-4(c) (joint sewerage authority); N.J.S.A. 40:14B-5 (joint
municipal utilities authority); N.J.S.A. 40:66A-4(b) (joint
municipal incinerator authority); N.J.S.A. 40A:65-14(a) ("joint
meeting" of municipalities to provide for "joint operation of
any public services, public improvements, works, facilities, or
[other public] undertakings"). If such an entity is
established, it undoubtedly would generate government records in
the course of providing the government service. Therefore, the
evident legislative objective in including a "combination of
political subdivisions" in the definition of "public agency" or
"agency" was to assure that such a governmental entity would be
subject to OPRA.
Unlike a governmental entity created by two or more
municipalities to provide a governmental service, the League
does not provide police protection, maintain roadways, engage in
urban renewal projects, or perform any other function that would
be recognized as a government service. Instead, the League
advises municipal officials and acts as an advocate for
municipal governments before the Legislature and in
administrative and judicial proceedings. Its role is similar in
this respect to a private association such as the Chamber of
Commerce. Therefore, even though the League's membership
consists of municipalities, this does not make the League a
"combination of political subdivisions" within the intent of
Fair Share also argues that the League constitutes an
"office . . . or other instrumentality . . . created by a
. . . combination of political subdivisions" or an "independent
. . . instrumentality or agency created by a . . . combination
of political subdivisions" within the intent of the second
sentence of N.J.S.A. 47:1A-1.1 (emphasis added). However, for
the reasons previously discussed, we conclude that "combination
of political subdivisions" refers to an entity created by two or
more political subdivisions to provide a service ordinarily
provided by a single political subdivision, and the League does
not constitute such an entity. Furthermore, within government,
the terms "office," "instrumentality," and "agency" are
generally understood, like the term "combination of political
subdivisions," to refer to an entity that performs a
governmental function. See Black's Law Dictionary 1115, 814, 67
(8th ed. 2004); 37A Am. Jur. 2d Freedom of Information Acts § 21
(2005) ("The cornerstone of the analysis of whether a private
entity operates as the functional equivalent of a governmental
agency, such that its records are public records governed by a
state public records act, is whether and to what extent the
entity performs a governmental or public function.").
If we had any doubt about our conclusion that the terms
"combination of political subdivisions," "office,"
"instrumentality," and "agency" should be given their commonly
understood meaning as an entity that performs a governmental
service, it would be dispelled by the legislative definition of
"government record," which is also contained in N.J.S.A. 47:1A-
1.1. The pertinent part of this definition states:
"Government record" or "record" means
any paper, written or printed book,
document, drawing, map, plan, photograph,
microfilm, data processed or image processed
document, information stored or maintained
electronically or by sound-recording or in a
similar device, or any copy thereof, that
has been made, maintained or kept on file in
the course of his or its official business
by any officer, commission, agency or
authority of the State or of any political
subdivision thereof, including subordinate
boards thereof. . . .
By its plain terms, in addition to State officers and agencies,
this definition only applies to "political subdivision[s]" and
"subordinate boards thereof." There is no reasonable basis upon
which the League could be viewed as a "subordinate board" of a
political subdivision. Moreover, the critical term in the main
operative sections of OPRA is "government record" rather than
See, e.g., N.J.S.A. 47:1A-5, -6. Therefore,
the restrictive definition of "government record" in N.J.S.A.
47:1A-1.1 is an additional reason for rejecting the expansive
interpretation of "public agency" urged by Fair Share.
Our conclusion that the League is not subject to OPRA is
consistent with Lafayette Yard, supra, which involved a private
nonprofit corporation established to enable the City of Trenton
to redevelop a blighted area by construction of a hotel,
conference center, and parking facility.
183 N.J. at 522. The
corporation was structured in the manner required to issue bonds
Id. at 522-23.
that would be exempt from federal taxation.
This requirement included an agreement that the corporation's
property would revert to Trenton when its indebtedness was
retired. Id. at 523. In addition, Trenton guaranteed repayment
of the corporation's tax-exempt bonds. Id. at 525-26. Most
significantly, Trenton's governing body was given authority to
appoint and remove at least 80% of the corporation's governing
board. Id. at 523. Under all these circumstances, the Court
concluded that the corporation was "an 'instrumentality or
agency created . . . by a political subdivision' under N.J.S.A.
47:1A-1.1, and that the Corporation is therefore subject to
[OPRA]." Id. at 534. In rejecting the corporation's argument
that "it was not 'created' by 'a political subdivision of the
State'" because it was incorporated by "public-spirited citizens
. . . to assist [Trenton] . . . in its redevelopment plan[,]"
the Court stated: "Suffice it to say that the Mayor and City
Council have absolute control over the membership of the Board
of Lafayette Yard and that the Corporation could only have been
'created' with their approval." Id. at 535.
Unlike the nonprofit corporation involved in Lafayette
Yard, which was established and controlled by a municipality to
provide a vital public service ordinarily performed directly by
the affected municipality -- the redevelopment of a blighted
area -- which made the corporation an "instrumentality" of that
municipality, the League does not provide any governmental
service ordinarily provided by a municipality or group of
municipalities. Instead, as previously discussed, the League's
role is purely to advise municipalities and municipal officials
and to advocate the positions of its membership before the
Legislature, administrative agencies, and the courts. In these
capacities, the League is not an "office," "instrumentality," or
"agency" of any individual municipality or combination of
We turn next to Fair Share's claim of a right of access to
documents in the League's possession under the common law right
of access to public records.
OPRA preserves "the common law right of access to a
government record[.]" N.J.S.A. 47:1A-8. "The common law
definition of a public record is broader than the definition [of
government record] contained in OPRA." Mason v. City of
196 N.J. 51, 67 (2008).
"The common-law right to access public records depends on
three requirements: (1) the records must be common-law public
documents; (2) the person seeking access must 'establish an
interest in the subject matter of the material,' and (3) the
citizen's right to access 'must be balanced against the State's
interest in preventing disclosure.'" Keddie v. Rutgers,
148 N.J. 36, 50 (1997) (citations omitted). For documents to be
considered "common law public documents," they must have been
"created by, or at the behest of, public officers in the
exercise of a public function." Ibid.
For reasons similar to our reasons for concluding that the
League is not a "public agency" within the intent of OPRA, we
conclude that documents in the League's possession are not
"common-law public documents" and therefore there is no common
law right of access to those documents. Although there is
statutory authorization for municipalities to join the League,
it is a nonprofit unincorporated association that is governed by
its constitution rather than by statute. Moreover, it does not
perform any governmental function. Rather, its role is limited
to acting as an advisor to, and advocate for, municipalities and
municipal officials. Therefore, the League is not a public
agency and its employees are not "public officers" who "exercise
. . . a public function" in performing their duties. Ibid.
Fair Share argues under the final point of its brief that
the League is subject to the Open Public Meetings Act (OPMA),
N.J.S.A. 10:4-6 to -21. However, Fair Share's complaint did not
include any claim under OPMA. Although Fair Share filed a reply
brief in the trial court that contained a short discussion of
the applicability of OPMA to the League, this discussion was
solely a response to "the League's contention that an entity
must be covered by the OPMA in order to be covered by OPRA."
Fair Share did not seek leave to amend its complaint to assert a
claim under OPMA, and the conclusion to Fair Share's reply brief
only seeks a declaration that the League is subject to OPRA and
the common law right of access to public records. Moreover, the
trial court did not consider whether the League is subject to
OPMA. Therefore, Fair Share's argument that the League is
See Nieder v. Royal
subject to OPMA is not properly before us.
Indem. Ins. Co.,
62 N.J. 229, 234 (1973).