FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on October 22, 2002, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The Commission takes administrative notice of the Federal Statutes establishing cooperative extensive services with the United States Department of Agriculture.  The Commission also takes administrative notice of docket #FIC 1988-276 Lyn Bixby and the Hartford Courant v. Director of Development of the University of Connecticut President of the University of Connecticut Foundation (hereinafter “docket #FIC1988-276”).  Further, the above-caption was changed to reflect the correct name of the first respondent as “Roger Adams” and not “Robert Adams.”

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondent State of Connecticut, University of Connecticut, (hereinafter “respondent university”) is a public agency within the meaning of §1-200(1), G.S.

 

2.      It is found that the complainant attended the Master Gardner Program offered by the respondent university’s, College of Agriculture and Natural Resources, Department of Cooperative Extension, Home and Garden Education Center (hereinafter “the program”).

 

3.      It is found that the program is a fourteen-week course, comprised of class sessions that meet for five to six hours once a week.  The classes are taught by 10 different instructors, who are the other named respondents in this case.

 

4.      It is found that many of the instructors used PowerPoint presentations to present their course material, a copy of which was provided to each student in paper form.

 

5.      It is found that by e-mails dated May 2 and May 3, 2002, the complainant requested of each program instructor the PowerPoint presentations on computer diskette or sent to him as an e-mail attachment over the internet. 

 

6.      It is found that all but one instructor denied the complainant’s request, as described in paragraph 5, above.

 

7.      It is also found that by e-mail dated May 2, 2002, the complainant submitted his request to respondent Roger Adams, the assistant director of the cooperative extension service (hereinafter  “Dr. Adams”).

 

8.      It is found that by e-mail dated May 3, 2002, Dr. Adams also denied the complainant’s request after consulting with the program instructors who uniformly refused to comply with the complainant’s requests.

 

9.      By letter dated May 24, 2002, and filed on May 28, 2002, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his requests.  The complainant also requested that this Commission impose the maximum civil penalty against the respondents.

 

10.  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.

 

11.  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 . . . .”

 

12.  At the hearing on this matter, the complainant argued that the individual program instructors are public agencies within the meaning of §1-200(1), G.S., because government funds are used by the respondent university to pay them and because they perform a government function which function is articulated in the program’s mission statement.  The complainant argued that because the instructors teach a course that fulfills the program’s mission statement, they perform a government function.  The complainant cited docket #FIC 1988-276, in support of his argument.  The complainant further argued that because the instructors are public agencies, the requested records are public records and should have been provided to him. 

 

13.  Section 1-200(a),G.S., provides in relevant part that: 

 

“Public agency” or “agency” means: . . . (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law . . . .

 

 

14.  Section 1-200(11), G.S., provides in relevant part that:

 

“Governmental function” means the administration or management of a program of a public agency, which program has been authorized by law to be administered or managed by a person, where (A) the person receives funding from the public agency for administering or managing the program, (B) the public agency is involved in or regulates to a significant extent such person’s administration or management of the program, whether or not such involvement or regulation is direct, pervasive, continuous or day-to-day, and (C) the person participates in the formulation of governmental policies or decisions in connection with the administration or management of the program and such policies or decisions bind the public agency.  “Governmental function” shall not include the mere provision of goods or services to a public agency without the delegated responsibility to administer or manage a program of a public agency. 

 

15.  Section 1-200(5), G.S., defines “public records or files” to mean:

 

any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

16.  It is found that the program’s instructors, in their specific capacity as instructors, do not administer or manage the program and therefore the funds used to pay the instructors could not be for administering or managing it and the respondent university could not be involved in nor could it regulate the instructors administration or management of the program.  Further the instructors do not participate in the formulation of governmental policies or decisions in connection with the administration or management of the program.

 

17.  It is also found that the instructors merely provide a service to the respondent university without the delegated responsibility to administer or manage the program of the respondent university. 

 

18.  It is found that the requested records were prepared, used, and maintained by the program instructors, in their capacity as instructors, to implement the course curriculum of the program.

 

19.  It is therefore found that the program instructors, operating in that particular capacity, do not constitute public agencies or the equivalent thereof, within the meaning of §1-200(1), G.S., because they do not perform a “government function” within the meaning of §1-200(11), G.S., notwithstanding the fact that some of the instructors are also members of the staff and administration of the respondent university.

 

20.  It is found therefore that the requested records are not “records maintained or kept on file” by any of the respondents as public agencies, within the meaning of §1-210(a), G.S.

 

21.  It is also found that the requested records were not “prepared, owned, used, received or retained” by the respondent university or its administration, within the meaning of §1-200(5), G.S. 

 

22.  It is further found that the respondent university is not entitled to receive a copy of the requested records by law or by contract under §1-218, G.S.

 

23.  It is further found that docket #FIC 1998-276 does not support the complainant’s claims in this case.

 

24.  Consequently, it is concluded that the respondents did not violate the disclosure provisions of §§1-210(a) or 1-212(a), G.S., by denying the complainant’s request.

 

25.  Accordingly, the complainant’s request for civil penalties is hereby denied.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

 

1.      The complaint is hereby dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

May 14, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Robert Fromer

117 Great Neck Road

Waterford, CT 06385

 

Robert Adams, Jr., Assistant Director, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Cooperative Extension Centers; Cyndi Wyskiewicz, State Education Coordinator, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Cooperative Extension Centers, Home and Garden Education Center; Edmond Marrotte, Program Specialist Educational Outreach, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Plant Science; Steve Radcliffe, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Plant Science; Norman Gauthier, Associate Professor, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Plant Science; Dawn Pettinelli, Manager, Research Laboratory Services,  State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Plant Science; Ana Legand, Assistant Professor, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Plant Science; Robert Durgy, Research Assistant, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Cooperative Extension Centers, Vernon Extension Center; Carole Williamson, Public Specialist/Research Assistant, State of Connecticut, University of Connecticut, College of Agriculture and Natural Resources, Department of Cooperative Extension Centers, Home and Garden Education Center; and State of Connecticut, University of Connecticut

c/o Paul M. Shapiro, Esq.

Assistant Attorney General

University of Connecticut

Box U-177, 605 Gilbert Road

Storrs, CT  06269-1177

 

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-244FD/abg/05/16/2003