FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Fred B. Feins, |
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Complainant |
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against |
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Docket
#FIC 2000-005 |
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President
and Chief Executive Officer, |
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Respondents |
May 10, 2000 |
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The above-captioned matter was heard as a contested
case on February 29, 2000, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint.
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1.
By letter dated
December 7, 1999, the complainant requested that the respondent officer
provide copies of all documents related to the recent job search, which
resulted in the hiring of an administrator and which documents should include:
a.
letters of inquiry;
b.
applications;
c.
references;
d.
correspondence to and
from the consultant retained by
Granby Ambulance Association (hereinafter “GAA”) to conduct the
search;
e.
copies of licenses
and certifications;
f.
correspondence
between GAA and all applicants;
g.
notes or memoranda by
GAA board members and others acting in their official capacity or as members
of the search committee.
2.
It is found that the
respondent did not respond to the complainant’s December 7, 1999, request
letter.
3.
By letter dated
December 29, 1999, and filed on January 4, 2000, the complainant appealed to
the Commission alleging that the respondent violated the Freedom of
Information (“FOI”) Act by failing to respond to, and thereby denying his
request, as described in paragraph 1, above.
4.
At the hearing on
this matter, the respondent argued that GAA is not a public agency within the
meaning of §1-200(1), G.S., and that GAA and the respondent officer therefore
are not required under the FOI Act to comply with the complainant’s request.
5.
Section 1-200(a), G.S.,
defines a “public agency” or “agency” to mean:
“.
. . any executive, administrative or legislative office of . . . any political
subdivision of the state and any state or town agency, any department,
institution, bureau, board, commission, authority or official of . . . any
city, town, borough, municipal corporation, school district, regional district
or other district or other political subdivision of the state, including any
committee of, or created by, any such office, subdivision, agency, department,
institution, bureau, board, commission, authority or official . . . .”
6.
In Board of
Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 554 (1980)
(“Woodstock”), the Supreme Court adopted the “functional
equivalent” test to determine whether an entity is a public agency within
the meaning of §1-200(1), G.S. The
test for functional equivalence to a public agency consists of the following
four criteria: (1) whether the entity performs a governmental function; (2)
the level of government funding; (3) the extent of government involvement or
regulation; and (4) whether the entity was created by government.
7.
Subsequently, in Connecticut
Humane Society v. FOI Commission, 281 Conn. 757, 761 (1991), the Supreme
Court elaborated that all four factors set forth in Woodstock are not
necessary for finding of functional equivalence, but rather that “all
relevant factors are to be considered cumulatively, with no single factor
being essential or conclusive.”
8.
With respect to the
first and third criteria (whether the entity performs a government function
and the extent of government involvement or regulation) the Commission takes
administrative notice that GAA is subject to state statutes that govern
emergency medical services pursuant to §19a-182, G.S., et seq.
9.
The Commission also
takes administrative notice of the fact that GAA is subject to the regulations
of the state’s office of emergency medical services, pursuant to §19-178 -
179, G.S.
10.
Further, §19a-176,
G.S., provides that the State Department of Public Health is responsible for
the planning, coordination and administration of a state-wide emergency
medical care service system, utilizing the services of local emergency medical
services councils and the State Department of Public Health.
11.
Section 19a-183, G.S.,
requires the establishment of regional emergency medical services councils,
comprised of towns designated by the Commissioner of Public Health.
12.
Section 19a-184, G.S.,
requires each emergency medical services council to forward to the
Commissioner of Public Health an emergency medical services plan for its
region.
13.
Section 19a-182(b),
G.S., requires each emergency medical services council to develop and annually
revise a plan for the delivery of emergency medical services in its area.
14.
Section 19a-177(k),
G.S., provides that if no emergency medical services council exists within a
region, the Commissioner of Public Health shall develop in conjunction with
the regional coordinator the emergency medical services plan for such region.
15.
It is concluded that
the provision of emergency ambulance transportation service is among the
required components of an emergency medical services plan pursuant to
§19a-175, G.S., et seq.
16.
Section 19a-190, G.S.,
authorizes a municipality to contract with a volunteer ambulance company for
the performance of ambulance services.
17.
It is found that the
Town of Granby has a contract with GAA as authorized by §19a-190, G.S., to
perform ambulance services.
18.
Section 19a-191, G.S.,
provides that volunteer ambulance personnel are deemed to be municipal
employees for the purposes of the State Workers’ Compensation Commission.
19.
Based upon the
findings in paragraphs 9 through 18, above, it is concluded that the
respondent and GAA perform a governmental function and are substantially
regulated by the government.
20.
With respect to the
second criterion of the functional equivalence test (the level of governmental
funding), it is found that the Town of Granby covers GAA employees and
volunteers under its workers compensation policy at a cost of $2,468 to the
town for fiscal year 2000.
21.
It is also found that
GAA is funded by revenue generated from billing income in the amount of
$184,720.47 and fundraising income in the amount of $67,028.72 for the fiscal
year 2000.
22.
It is concluded that
GAA is not substantially funded by the government.
23.
With respect to the
fourth criterion of the functional equivalence test (whether the entity was
created by government), it is found that GAA was incorporated in the State of
Connecticut as a non-profit organization in 1963, by members of the Granby
community, to provide a volunteer ambulance service for the Town of Granby and
the surrounding areas.
24.
It is concluded that
GAA was not created by the government.
25.
It is further
concluded, however, that on balance, GAA and consequently the respondent
officer, are the functional equivalent of public agencies within the meaning
of §1-200(1), G.S. and therefore are subject to the jurisdiction of this
Commission.
26.
Section 1-210(a), G.S.,
provides in relevant part that:
“[e]xcept
as otherwise provided by any federal law or state statute, all records
maintained or kept on file by any public agency, whether or not such records
are required by any law or by any rule or regulation, shall be public records
and every person shall have the right . . . to receive a copy of such records
in accordance with the provisions of section 1-212.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.”
27.
Section 1-212(a), G.S.,
provides in relevant part that “[a]ny person applying in writing shall
receive, promptly upon request, a plain or certified copy of any public record
. . .”.
28.
It is found that the
requested records, as described in paragraph 2, above, are public records
within the meaning of §§1-200(2) and 1-210(a), G.S.
29.
At the hearing on
this matter, the respondent argued that the requested records are exempt from
disclosure under §1-210(b)(2), G.S., as “personnel” or “similar files”
the disclosure of which would constitute an invasion of personal privacy.
30.
Section 1-210(b)(2),
G.S., provides that a public agency need not disclose “personnel or medical
files and similar files the disclosure of which would constitute an invasion
of personal privacy.”
31.
The appropriate test
for determining whether §1-210(b)(2),
G.S., is applicable to the requested record is set forth in Perkins v.
Freedom of Information Commission, 228 Conn. 158, 175 (1993).
The claimant must first establish that the files in question are
personnel, medical or similar files. Second,
the claimant must show that disclosure of the records would constitute an
invasion of personal privacy. In
determining whether disclosure would constitute an invasion of personal
privacy, the claimant must establish both of two elements: first, that the
information sought does not pertain to legitimate matters of public concern;
and, second, that such information is highly offensive to a reasonable person.
32.
It is found that the
requested records constitute a “personnel” or “similar” file within
the meaning of §1-210(b)(2),
G.S.
33.
It is also found,
however, that the respondent failed to provide any evidence to support the
argument that disclosure of the requested records would be highly offensive to
a reasonable person or that the requested records do not pertain to a
legitimate matter of public concern; rather the respondent officer alleged in
broad, conclusory terms that the records were exempt from disclosure pursuant
to §1-210(b)(2),
G.S.
34.
In City of
Hartford, et al v. Freedom of Information Commission, et al, 201 Conn.
421, 434 (1986), the Supreme Court determined that the Commission is not
obliged to accept an agency’s generalized and unsupported allegations
related to documents claimed to be exempt from disclosure.
35. Consequently, it is found that respondent failed to prove that disclosure of the requested record, or any specific information therein, would be an invasion of personal privacy within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.] and therefore the requested records are not exempt from disclosure under that section.
36. The respondent also argued that the requested records are exempt from disclosure pursuant to §1-210(b)(6), G.S., which provides in relevant part that a public agency need not disclose “[t]est questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations.”
38. It is found that there is no evidence in the record to support a finding that the requested records include test questions, scoring keys and other examination data within the meaning of §1-210(b)(6), G.S.
39. It is concluded, therefore, that the exemption found in §1-210(b)(6), G.S., is not applicable to the requested records.
40.
The respondent
further argued that the requested records are exempt from mandatory disclosure
pursuant to §1-213(b)(2), G.S., which provides in relevant part that:
“[n]othing
in the Freedom of Information Act shall be deemed in any manner to . . . [r]equire disclosure of any record of a personnel
search committee which, because of name or other identifying information,
would reveal the identity of an executive level employment candidate without
the consent of such candidate.”
41.
It is found that a
personnel search committee was established to conduct a search to fill the
position of Chief, Emergency Medical Services and that such position is an
executive level position within the meaning of §1-200(7), G.S.
42.
It is found that the
respondent does not have the consent of any of the candidates to reveal the
identity of such candidates.
43.
It is also found that
there is no evidence in the record to support a finding that anything more
than the names, addresses, and current and past employment of the candidates
would reveal the identity of such candidates.
44.
It
is therefore conclude that only the names, addresses, and current and past
employment of the candidates who applied for the Chief, Emergency Medical
Services position are exempt from disclosure pursuant to §1-213(b)(2), G.S.
45.
It
is further concluded that the respondent violated the provisions of
§1-210(a), G.S., by failing to comply with the complainant’s request as
described in paragraph 2, above.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint.
1. The respondent officer shall forthwith provide the complainant with a copy of the requested records, as described in paragraph 2 of the findings, above, with the names, addresses, current and past employment of the candidates redacted, free of charge. However, nothing in the order shall require identification of information which would reveal the identity of an applicant.
Approved by Order of the Freedom of Information Commission at its regular meeting of
May 10, 2000.
_________________________
Melanie R. Balfour
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Fred
B. Feins
Post Office Box 151
North Granby, CT 06060-0151
President
and Chief Executive Officer,
Granby
Ambulance Association, Inc.,
Town of Granby
c/o Allison Bloom, Esq.
Bloom & Bistor, LLC
750 Summer Street
Stamford, CT 06901
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC2000-005FD/mes/05/15/00