(NOTE: The status of this decision is Published.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1200-08T3 FAIR SHARE HOUSING CENTER, INC., Plaintiff-Appellant, APPROVED FOR PUBLICATION May 26, 2010 v. APPELLATE DIVISION NEW JERSEY STATE LEAGUE OF MUNICIPALITIES, Defendant-Respondent. _____________________________________________________ Argued March 16, 2010 - Decided May 26, 2010 Before Judges Skillman, Gilroy and Simonelli. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1487-08. 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 SKILLMAN, P.J.A.D.  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 A-1200-08T3 2  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 expert advice[.] 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 member. Approximately 16% of the League's revenue is derived from dues assessed upon its members according to population. The A-1200-08T3 3  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. A-1200-08T3 4  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. A-1200-08T3 5  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. I. 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 A-1200-08T3 6  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. 47:1A-1.1. 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, ___ renewal. 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 A-1200-08T3 7  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 A-1200-08T3 8  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 N.J.S.A. 47:1A-1.1. 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 A-1200-08T3 9  governmental function. See Black's Law Dictionary 1115, 814, 67 (8th ed. 2004); 37A Am. Jur. 2d Freedom of Information Acts