No one wants to be involved in a car accident or a fire, but when those events do happen, OPRA can be used to access potentially important records. But not all emergency services and first responders are subject to OPRA.
We’ve covered access to police records in blog posts here and here. This post covers fire departments and emergency medical services (“EMS”). Whether a fire department or EMS squad is subject to OPRA depends on its structure and how it was created.
In general, the records of fire departments that are a part of a municipality and the firefighters are public employees are generally subject to OPRA. Because of the costs and capital expenses necessary to support firefighting organizations, it is more common to find “paid” or “professional” departments in more highly developed parts of New Jersey.
Some municipalities have elected to create fire districts to be responsible for providing fire protection. Fire districts are separate municipal entities that are responsible for providing fire protection services within their boundaries. A fire district will contract with volunteer fire companies to provide fire protection services. Fire districts do not exist in every town. Because fire districts are instrumentalities of municipalities, they are also subject to OPRA, just like municipalities.
Whether a volunteer fire company is subject to OPRA depends. Volunteer fire companies that are separately incorporated as non-profits and provide fire protection services on contract to fire districts are in general not subject to OPRA. However, volunteer fire companies are, in general, required to cooperate with their fire district when the fire district seeks copies of records that relate to the fire district’s supervisory role over the fire company.
Municipalities may also directly contract with volunteer fire companies to provide fire protection to its residents. Especially in the suburban or rural parts of New Jersey, the relationship between a municipality and the volunteer fire companies that provide fire protection may be informal and there might not even be a written agreement that defines their relationship. Nonetheless, in our view, such volunteer fire companies are instrumentalities of municipalities, and therefore are generally subject to OPRA. However, we are not aware of a published decision that addresses this issue directly.
Regarding EMS, if the EMS squad is a volunteer, non-profit organization that was not founded by a municipality, it is less likely that it would be subject to OPRA. On the other hand, if the EMS service consists of municipal employees and is a department or unit within the municipality, they would be subject to OPRA. Importantly, even if an EMS squad is subject to OPRA, many of the records maintained by EMS squads are likely to be considered medical records, which cannot be accessed through OPRA. Medical records can only be accessed through a HIPAA-compliant request, court order or similar process.