FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 15, 2004, at which time the complainant and the respondent appeared 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.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  It is found that by letter dated June 28, 2004, the complainant requested that the respondent provide him with “copies of E-mail between Nancy Murray and Jonathan Mascoli with regards to the …[the complainant], from September 2001, until the present (hereinafter “requested records”).

 

3.  It is found that Nancy Murray and Jonathan Mascoli are employees of OneSource Facility Services, Inc., (hereinafter “OneSource”), a private company that has a five year contract with the respondent to provide building maintenance and cleaning services for the State Capitol and Legislative Office Building facilities.  OneSource’s compensation under the contract is in excess of two million dollars per year.  

 

4.   It is found that the complainant is a former employee of OneSource, Nancy Murray is the manager of OneSource and Jonathan Mascoli is the former supervisor of the complainant.

 

5.   It is found that by letter dated July 12, 2004, the respondent denied the complainant’s request indicating that “we do not have access to this material” and further that “although, as part of our contract with OneSource, we provide them with certain equipment, that does not give us access to their business records.  As a private entity, they are not subject to the Freedom of Information Act.”

 

6.  By letter of complaint dated July 15, 2004, and filed on July 20, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying him copies of the requested records.

 

7.  Section 1-200(5), G.S., provides:

 

“Public records or files” means 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. 

 

8.  Section 1-210(a), G.S., further 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 … receive a copy of such records in accordance with section 1-212. 

 

9.  The respondent contends that the requested records are not the respondent’s records but those of OneSource, and are therefore, not “public records”.  

 

10.  The complainant on the other hand contends that the respondent provides OneSource with equipment such as computer terminals and also provides OneSource with internet access service, and further that OneSource is the functional equivalent of a public agency.

 

11.  It is found that the requested records, to the extent they exist, are not records “prepared, owned, used, received or retained” by the respondent, within the meaning of §1-200(5), G.S.  Neither are they “maintained or kept on file” by the respondent, within the meaning of §1-210(a), G.S. 

 

12.   It is therefore, concluded that the requested records are not “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13.  Section 1-218, G.S., in relevant part, provides: 

 

Each contract in excess of two million five hundred thousand dollars between a public agency and a person for the performance of a governmental function shall (1) provide that the public agency is entitled to receive a copy of records and files related to the performance of the governmental function, and (2) indicate that such records and files are subject to the Freedom of Information Act and may be disclosed by the public agency pursuant to the Freedom of Information Act….

 

14.  Section 1-200(11), G.S., further provides:

 

“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.  [Emphasis added].

 

15.  It is found that the requested records, to the extent they exist, are records of OneSource, an independent private contractor, who provides a “service” to the respondent pursuant to its contract.

 

16.  In addition, it is found that OneSource’s contract with the respondent is not a contract for the performance of a governmental function.

 

17.  It is found that OneSource provides a service to the respondent and does not administer or manage a program, within the meaning of §1-200(11), G.S.

  

18.  It is therefore concluded that the respondent is not entitled to receive a copy of the requested records within the meaning of §§1-200(11) and 1-218, G.S.,

because such records do not relate to the performance of a governmental function.

 

19.  With respect to the argument of functional equivalence, it is noted that such argument was not raised until towards the end of the hearing in this matter. 

 

20.  The issue before this Commission that was raised in the complaint and that was addressed herein is whether the e-mails requested of the respondent by the complainant are “public records,” and if so, whether the complainant is entitled to a copy of such e-mails from the respondent.

 

21. It is found that the complainant filed this complaint against the respondent, based on the respondent’s denial of the complainant’s records request.

 

22.  The complainant in his complaint does not allege a denial of access to the requested records by OneSource. 

 

23.  It is therefore concluded that the issue of whether OneSource is the functional equivalent of a public agency is not properly before this Commission and therefore, the Commission declines to address such issue.

24.  It is further concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., when it denied the complainant a copy of the requested records.  

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 April 13, 2005.

 

________________________________

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:

 

Jorge Duprey

c/o Eric D. Coleman, Esq.

101 Oak Street

Hartford, CT 06106

 

State of Connecticut, General Assembly,

Joint Committee on Legislative Management

c/o Saranne P. Murray, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-325FD/paj/4/15/2005