Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489 (2011). The New Jersey State League of Municipalities (“the League”) is an entity created under N.J.S.A. 40:48-22 that represents all 566 New Jersey municipalities. The League lobbies for and even files lawsuits to advance the interests of municipalities.
In 2008, the League filed comments with the Council on Affordable Housing (“COAH”) that opposed regulations that COAH had proposed for adoption. Fair Share Housing Center, Inc. (“Fair Share”), an advocacy group for affordable housing, then requested that the League produce to Fair Share, pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), certain specific documents that related to the League’s opposition to the proposed COAH regulations. The League declined to do so, and asserted that it was not a public agency covered by OPRA.
Fair Share then brought litigation to obtain the records that it had requested from the League. Both the Law Division and the Appellate Division agreed that the League was not covered by OPRA. The Supreme Court granted certification and, in a unanimous opinion by Justice Albin, reversed the lower courts.
Justice Albin first noted that the question at hand was a pure legal issue. As a result, review was de novo. He used a new metaphor, however, noting that the Court would “look at the law with fresh eyes and need pay no deference to legal conclusions reached” by the lower courts.
The Court then discussed the background of the League. Among many other things, “[s]ixteen percent of the League’s budget is comprised of taxpayer public funds in the form of membership fees from each municipality.” The League’s seventeen employees are members of the Public Employees’ Retirement System (“PERS”). A 1955 Attorney General’s opinion stated that the League was “a public agency or organization” whose employees were therefore eligible for membership in PERS.
The Court found that the case “turns on the meaning of ‘public agency'” as defined in N.J.S.A. 47:1A-1.1. That lengthy and comprehensive definition includes an “instrumentality … created by a … combination of political subdivisions.” “That plain language places the League squarely within the term ‘public agency.'” Justice Albin declined to insert “an additional qualification” into OPRA that would exempt the League from the definition of “public agency” when the Legislature had not done that itself.
OPRA contains no definition of “instrumentality.” Accordingly, the Court resorted to its “generally accepted meaning.” “[T]he League is achieving an end and providing a function on behalf of all 566 of New Jersey’s municipalities.” Thus, it was an “instrumentality” of a “combination of political subdivisions.” The League need not have “perform[ed] a traditional governmental task, such as trash collection,” in order to be a “public agency” for OPRA purposes.
The League’s documents were “government records” subject to OPRA. Justice Albin stated that “any document kept on file or received in the course of the official business of an ‘agency’ of a political subdivision is a government document. The League is such an ‘agency’ and therefore the term ‘government record’ applies to it.”
The Law Division had found that the League was not a “public agency.” As a result, that court had not evaluated the particular documents sought to see whether they were required to be produced or subject to an OPRA exemption. The Court remanded the matter for that evaluation to take place.