FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by |
REVISED FINAL DECISION |
||
|
Christopher Hoffman and |
|
||
|
|
Complainants |
|
|
|
|
against |
Docket #FIC 1999-396 |
|
|
Executive Director, New
Haven Enterprise |
|
||
|
|
Respondents |
July 11, 2001 |
|
|
|
|
|
|
The above-captioned matter was heard as a contested case on November 29, 1999, and December 7, 1999, at which times the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with Docket #FIC 1999-257; Paul Bass and New Haven Advocate v. Executive Director, New Haven Development Corporation, Connecticut Community Investment Corporation, Technology Investment Fund, Incorporated, New Haven Enterprise Development Corporation; and John DeStefano, Mayor, City of New Haven.
After reconsideration of the entire record, the following facts are found and conclusions of law are reached:
1. By letter dated August 17, 1999, the complainants requested that the respondents provide access to all board of director meeting minutes since 1989, a list of all loans made by the respondent corporation since 1989, a list of all loans "written off" by the respondent corporation, and documents showing the respondent corporation's source of funds.
2. Having failed to receive access to the requested records, the complainants, by letter dated August 23, 1999, and filed with the Commission on September 9, 1999, appealed to the Commission alleging that the respondents violated the Freedom of Information [hereinafter "FOI"] Act by not complying with the request described in paragraph 1, above.
3. Section 1-210(a), G.S. [formerly §1-l9(a), G.S.], provides in relevant part:
[e]xcept as otherwise provided by any federal law or state statute., all records maintained or kept on file by any public agency. . . shall be public records and every person shall have the right to inspect such records promptly during regular office hours....
4. The respondents first contend that the respondent corporation [hereinafter "NHEDC"] is not a public agency subject to the FOI Act.
5. Section 1-200(1), G.S. [formerly §1-18a(1), 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. [formerly § 1-18a(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, 218 Conn. 757, 761 (1991) ("Humane Society"), the Supreme Court elaborated that all four factors set forth in Woodstock are not necessary for a finding of functional equivalence, but rather that "all relevant factors are to be considered cumulatively, with no single factor being essential or conclusive."
8. In 1998, the Appellate Court, in Domestic Violence Services of Greater New Haven, Inc. v. FOI Commission, 47 Conn. App. 466, 475, 477, 478 (1998) ("Domestic Violence"), added:
[t]he key to determining whether an entity is a government agency or merely a contractor with the government is whether the government is really involved in the core of the program... [the exercise of] direct, pervasive or continuous regulatory control ....[and] government's control of the detailed physical performance. . . [internal punctuation omitted]
9. It is found that the board of directors of NHEDC voted to cease operations of such corporation in 1996, and that, at the time of the filing of the complaint in this matter, the activities of NHEDC were limited to collecting outstanding debts and winding up operations.
10. With respect to the first criterion of the functional equivalent test described in paragraph 6, above, (whether the entity performs a governmental function), it is found that the NHEDC, as stated in its certificate of incorporation, is organized exclusively for charitable and educational purposes; that the NHEDC exists to lessen the burdens of government, to combat community deterioration and to promote the social welfare of New Haven citizens by aiding and assisting the expansion of existing industry and the development of new industry and commerce owned by minority and disadvantaged persons, to the end that employment opportunities, particularly for those who are underemployed and unemployed, will be stabilized, increased and diversified and tax revenues for the city of New Haven will be increased. It is also found that New Haven city government performed the functions of NHEDC immediately preceding the creation of NHEDC in 1989. It is further found that despite the establishment of fixed asset and working capital loan programs for small businesses, the City did not establish a loan program specifically targeted to minority and disadvantaged business owners during the time prior to NHEDC ceasing to do business and liquidating. It is further found that promoting economic development through loans to minority and disadvantaged business owners is a governmental function and that NHEDC performed that function for the City of New Haven.
11. With respect to the second criterion of the functional equivalent test (the level of government funding), it is found that by contract NHEDC received staffing and office space from the city of New Haven until 1997, and operated out of City Hall until such time. Under the terms of the contract NHEDC received this support at no cost and reported the City's contribution as the majority of its public support in NHEDC's Form 990 annual reports. Accordingly, it is concluded that NHEDC received substantial government funding.
12. With respect to the third criterion of the functional equivalent test (the extent of government involvement or regulation), it is found that NHEDC's former executive director, Salvatore Brancati, resigned from his NHEDC position sometime prior to the filing of the complaint in this matter. It is further found Mr. Brancati was a public official in the Office of Business Development, City of New Haven, and that he held such position during his tenure with NHEDC. It is further found that, while the NHEDC was in full operation, it was completely staffed by city employees and that the board of directors of the NHEDC was appointed by the mayor of New Haven, pursuant to the NHEDC certificate of incorporation. It is found that the executive director of the NHEDC had no authority to independently bind the board of directors of NHEDC; however, he did have some authority to sign NHEDC checks up to minimal amounts. It is further found that although NHEDC had adopted its own loan guidelines, that there was evidence of the independence of NHEDC’s loan review committee and that several loan requests were denied, there was no evidence that any loan application was ever presented to NHEDC unless and until the City staff support determined to do so. It is concluded that, during its period of full operations, the NHEDC was substantially involved with, and regulated by, government.
13. With respect to the fourth criterion of the functional equivalent test (whether the entity was created by government), it is found that NHEDC was created as a nonprofit 501 (c) corporation in 1989, largely at the initiation of city officials, who desired to delegate the activities which the city had previously been performing, as described in paragraph 10, above. It is further found that there is no mention of NHEDC in either the City Charter, the City Code or City ordinances or resolution except for the resolution authorizing the staffing agreement. Accordingly, it is concluded that NHEDC was created with the direct participation and support of the City.
14. Based upon the law of Woodstock (the functional equivalent test), Humane Society (factors considered cumulatively and no single factor essential), and Domestic Violence (the key is government control), as well as the foregoing findings, it is concluded that NHEDC is the functional equivalent of a public agency within the meaning of §1-200(1), G.S. [formerly §1-18a(1), G.S.]
15. With respect to the records described in paragraph 1, above, it is concluded that such records are public records, as defined in §1‑200 (5), G.S. (formerly § 1-18a(5), G.S.).
16. The representative of NHEDC contends that the loan records described in paragraph 1, above, are exempt from disclosure by analogy to §32-lla(k), G.S., and to §32-40(c), G.S. In addition, the respondents contend that all requested records are exempt from disclosure since information on loan applications if released, and portions of meeting minutes if released, would lead to an invasion of privacy, the revelation of trade secrets and commercial or financial information given in confidence. Additionally, the respondents contend that the requested records are exempt from disclosure under federal law, 12 U.S.C. 3401.
17. Section 32-11a(k), G.S., provides in relevant part that:
[a]11 information contained in any application for financial assistance submitted to the [Connecticut Development] authority or the department [of Economic and Community Development], and all information obtained by the authority or the department with respect to any person or project, including all financial, credit and proprietary information, shall be exempt from the, provisions of subsection (a) of section 1-210 [formerly §1-l9(a), G.S.]...
18. Section 32-40(c), G.S., provides in relevant part that:
[a]11 financial and credit information and all trade secrets contained in any application for financial aid submitted to . . . [Connecticut Innovations, Incorporated] or obtained by the corporation concerning any applicant, project, activity product or invention shall be exempt from the provisions of subsection (a) of section 1-210.
19. The parties have agreed that §32-11a(k), G.S. and §32-40(c), G.S., by analogy partially exempt from mandatory disclosure the loan records described in paragraph 1, above. Therefore it is concluded that NHEDC disclose a list of the loans made (but not a list of the loans written off) since 1989 and its board minutes redacting application and borrower information in excess of the information analogous to the information set forth in §32-11a(c), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above‑captioned complaint:
1. Forthwith, the representative of NHEDC shall provide the complainants with access to the records described in paragraph 19, of the findings, above.
2. As it has been found that NHEDC ceased doing business as of May 1, 1996 and subsequently liquidated and therefore was no longer the functional equivalent of a public agency, the provisions of the FOI Act do not apply to any activity after NHEDC ceased doing business on May 1, 1996.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 11, 2001.
__________________________________
Petrea A. Jones
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:
Christopher Hoffman and New Haven Register
40 Sargent Drive
New Haven, CT 06511‑5918
Executive Director, New Haven Enterprise
Development Corporation; and New Haven
Enterprise Development Corporation
c/o Atty. Michael Koenigsberg
20 Elmwood Road
New Haven, CT 06515-2242
___________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/1999-396/RFD/paj/07/31/2001