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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Araxy Najarian, |
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Complainants |
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against |
Docket #FIC 2001-442 | |
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Respondent |
January 23, 2002 | |
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The above-captioned matter was heard as a contested case on October 18, 2001, 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 of complaint dated September 20, 2001 and filed on September 21, 2001, the complainant appealed to the Commission alleging that the respondent is a public agency and violated the Freedom of Information (“FOI”) Act by denying her a copy of the report “recently filed in …[the respondent’s] office by the tenant in apartment #74 accusing …[the complainant] of racial discrimination” (hereinafter “requested record” or “tenant complaint”).
2. It is found that by letters dated July 2 and August 30, 2001, the complainant requested that the respondent provide her with a copy of the requested record.
3. It is found that the respondent acknowledged receipt of the July 2 request and denied such request based on “confidentiality and privacy laws.” The respondent did not respond in writing to the August 30 request. However, having failed to receive a copy of the requested record, the complainant filed this appeal as described in paragraph 1, above.
4. The test for determining whether an entity such as the respondent is a public agency for purposes of §1-200(1), G.S., is one of functional equivalence. Such test was outlined by the Supreme Court in Board of Trustees of Woodstock Academy, et al. v. Freedom of Information Commission, et al., 181 Conn. 544 (1980), and 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 the government.
5. Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757 (1991) held that all four of the Woodstock criteria delineated in paragraph 4 above, 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.”
6. With respect to the first criteria concerning “governmental function”, it is found that the respondent’s purpose and function is to provide government-subsidized housing to elderly residents of low and moderate income (“Section 8 housing”). It is found that the respondent’s function is in keeping with the federal and state government’s legislative policy on providing affordable housing to the elderly. The state’s policy is clearly set forth at §8-112a, G.S., which provides:
It is hereby declared (a) that there exists in the state an acute shortage of decent, safe and sanitary dwelling accommodations for elderly persons at rents which they can afford to pay; that within the state, elderly persons are forced to reside in unsafe and insanitary accommodations; that such conditions cause an increase in and spread of disease, both physical and mental and constitute a menace to the health, safety and welfare of elderly persons of the state and impair economic values; that such conditions necessitate excessive and disproportionate expenditures of public funds for public health and safety, fire and accident prevention and other services and facilities; (b) that the shortage of safe and sanitary dwelling accommodations for elderly persons of low and moderate incomes cannot be relieved through the operation of private enterprise; (c) that the acquisition and reconstruction of existing housing accommodations to provide safe and sanitary dwelling facilities especially adapted for elderly persons are public uses and purposes for which public money may be spent and private or public property acquired, and the necessity in the public interest for the provisions hereinafter enacted is declared as a matter of legislative determination.
7. It is concluded that the respondent is performing a government function in its operation of a Section 8 housing program for the town of Wethersfield, the state of Connecticut and the United States of America.
8. With respect to the second criteria concerning the level of government funding, it is found that the respondent receives 100% funding for its operating expenses from the United States Department of Housing and Urban Development (“HUD”). It is also found that the Connecticut Housing Financing Authority (“CHFA”) provided the mortgage financing for the respondent. It is concluded that the respondent is substantially funded by government.
9. With respect to the third criteria concerning the extent of government involvement or regulation, it is found that the respondent is subject to substantial government involvement and regulation by HUD and various state agencies. In this regard, it is found that although the respondent has a board of directors who are members of First Church of Christ, the respondent’s undertakings and activities are under the supervision of HUD and the state, and the respondent operates in cooperation and in coordination with HUD and the state. It is therefore concluded that the respondent is substantially involved with government, and also subject to substantial government regulation.
10. With respect to the fourth criteria concerning the respondent’s creation, it is found that the respondent was created as a result of a public-private initiative involving First Christ of Christ, a private entity, and HUD and CHFA. It is therefore, concluded that the respondent was created by a partnering of both government and non-government interests.
11. Based on the foregoing review of all relevant factors, it is concluded that the respondent is the functional equivalent of a “public agency” for purposes of the FOI Act.
12. With respect to the complainant’s records request, as described in paragraph 2, above, §1-210(a), G.S., provides, in relevant part:
Except 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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. [Emphasis added.]
13. Section 1-212(a), G.S., further provides that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
14. It is concluded that the requested record is maintained or kept on file by the respondent and is a “public record” within the meaning of §§1-210(a) and 1-212(a), G.S.
15. The respondent contends that the requested record is exempt from disclosure pursuant to §52-146q, G.S.
16. Section 52-146q, G.S., prohibits the non-consensual disclosure of confidential communications between a social worker and a person consulting such social worker and provides, in relevant part:
(b) All communications and records shall be confidential and, except as provided in subsection (c) of this section, a social worker shall not disclose any such communications and records unless the person or his authorized representative consents to such disclosure….[Emphasis added.]
(c) Consent of the person shall not be required for the disclosure or transmission of such person’s communications and records in the following situations as specifically limited:
(1) Communications and records may be disclosed to other individuals engaged in the diagnosis or treatment of the person or may be transmitted to a mental health facility to which the person is admitted for diagnosis or treatment if the social worker in possession of the communications and records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment, or when a social worker, in the course of evaluation and treatment of the person, finds it necessary to disclose the communications and records for the purpose of referring the person to a mental health facility….[Emphasis added.]
17. It is found that §52-146, G.S., deals with the disclosure of communications and records that specifically relate to the evaluation and treatment of an individual. The term “evaluation and treatment” is used in the clinical sense, as when dealing with individuals with mental health conditions.
18. Section 52-146q(a )(1), G.S., defines “person” as “an individual who consults a social worker for purposes of evaluation and treatment”; §52-146q(a )(3), G.S., defines “communications and records” as “all oral and written communications and records thereof relating to the evaluation or treatment of a person between such person and a social worker, or between a member of such person’s family and a social worker, or between such person or a member of such person’s family and an individual participating under the supervision of a social worker in the accomplishment of the objectives of evaluation and treatment, wherever made”; §52-146q(a )(6), G.S., defines “mental health facility” as any hospital, clinic, ward, social worker’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a person’s mental condition.”
19. It is found that the requested record at issue is a complaint filed by a tenant of the respondent against the complainant, and which contains allegations against the complainant (“tenant complaint”). It is found that the tenant complaint is not a “communication or record” that relates to “the evaluation and treatment” of an individual, within the meaning of §52-146, G.S.
20. Consequently, it is concluded that the tenant complaint is not exempt from disclosure pursuant to §52-146, G.S.
21. It is therefore concluded that the respondent violated the FOI Act by denying the complainant a copy of the tenant complaint.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith the respondent shall provide the complainant with a copy of the tenant complaint at issue, as more fully described in paragraph 2 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 23, 2002.
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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:
First Church Village Housing, Inc.
c/o Marlene Schempp, Imagineers, LLC
635 Farmington Avenue
Hartford, CT 06105
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-442/FD/paj/1/28/2002