FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 20 and May 8, 2006, at which times the complainants 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 letters dated January 26, and February 1, 2006, the complainants made a request to the respondent for access to inspect certain records maintained by the respondent.

 

2.      By letter dated and filed on February 22, 2006, the complainants appealed to this Commission contending that the respondent is a public agency and alleging that the respondent violated the FOI Act by failing to comply with the complainants’ request.

 

3.      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 section 1-212. 

 

4.      Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .” 

 

5.      By letter dated February 24, 2006, the respondent, through counsel, informed the complainants that it is not subject to the Freedom of Information (“FOI”) Act and that it did not provide the complainants with the requested records. 

 

6.      At the hearing on this matter, the respondent director argued that she is not a public agency because Connecticut Community Providers Association, Inc. (hereinafter “CCPA”) is limited to providing goods and services, such as landscaping, mops, mats, dry-cleaning and janitorial services, and does not perform a governmental function within the meaning of §1-200(11), G.S.

 

7.      Section 1-200(1), G.S., defines “public agency” to mean:

 

(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or 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, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency,” as defined in section 32-222.

 

8.      With respect to §1-200(1)(A), G.S., it is found that CCPA is a non-stock, non-profit, non-sectarian, and non-political trade association that was incorporated pursuant to §501(c)(3), G.S., on November 6, 1969, as the Connecticut Association of Sheltered Workshops and Homebound Programs, Inc.  The association changed its named to CCPA in July of 1993.

 

9.      It is concluded that the respondent is not a public agency within the meaning of §1-200(1)(A), G.S.

 

10.   With respect to §1-200(1)(B), G.S., the Supreme Court adopted a “functional equivalent” test to determine whether an entity is a public agency.  Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 554 (1980) (“Woodstock”).  Such test consists of the following four criteria: (1) whether the entity performs a government function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.

 

11.   Thereafter, in Connecticut Humane Society v. FOI Commission, 281 Conn. 757, 761 (1991), the Supreme Court elaborated that all four criteria 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.”

 

12.   With respect to the first criterion, it is found that CCPA is a trade association and that its main function is to provide education and training, as well as advocacy and referral services on behalf of its member organizations. 

 

13.   It is found that CCPA’s members are organizations that provide community based programs, support and services, and that all members pay membership dues, which range between five hundred dollars and four thousand five hundred dollars.

 

14.   It is found that CCPA has 53 contracts with state agencies to provide goods and services including, such things as: custodial services; food catering; car washing and detailing; and the supply of mops and ace bandages.

 

15.   It is found that the services that CCPA provides are not governmental functions, but rather, it is found that such services are part of the supporting framework that facilitates a government agency’s ability to perform its government function.

 

16.   It is found that CCPA does not perform a governmental function within the meaning of Woodstock, and it is concluded that the first criterion is not met.

 

17.   With respect to the second criterion, it is found that the portion of CCPA’s funding that comes from government grants is slightly over one percent of CCPA’s total budget which funding is used in a variety of ways pursuant to the grants to which such funding is related.  However, it is found that such funding does not fund CCPA within the meaning of Woodstock and therefore, it is concluded that the second criterion is not met.

 

18.   With respect to the third criterion, it is found that, other than the laws of the State of Connecticut that generally govern corporations such as CCPA, there is no government involvement or regulation of CCPA’s general operations, and that with respect to the contracts CCPA has with state agencies, the government involvement or regulation is limited to ensuring that the terms of the contracts are met. 

 

19.   Consequently, it is found that CCPA is not subject to substantial government involvement or regulation and therefore, it is concluded that the third criterion is not met.

 

20.   With respect to the fourth criterion, it is found that CCPA was not created by government and therefore, it is concluded that the fourth criterion is not met.

 

21.  It is concluded that, based on the totality of relevant criteria, the respondent is not the functional equivalent of a public agency within the meaning of §1-200(1)(B), G.S.

 

22.  With respect to §1-200(1)(C), G.S., §32-222, G.S., provides in relevant part that:

 

(k) “implementing agency” means one of the following agencies designated by a municipality under section 32-223: (1) An economic development commission, redevelopment agency; sewer authority or sewer commission; public works commission; water authority or water commission; port authority or port commission or harbor authority or harbor commission; parking authority or parking commission; (2) a nonprofit development corporation; or (3) any other agency designated and authorized by a municipality to undertake a project and approved by the commissioner . . .

 

23.   As already found in paragraph 8, above, CCPA is a non-stock, non-profit, non-sectarian, and non-political trade association that provides education and training, as well as advocacy and referral services on behalf of its members.

 

24.   It is found that the respondent does not engage in municipal or business development projects and therefore it is concluded that the respondent is not an implementing agency within the meaning of §§1-200(1)(C) and 32-222, G.S.

 

25.   At the hearing in this matter, the complainants contended that the respondent administers and manages certain government programs on behalf of public agencies, including the Preferred Purchasing Program on behalf of the State of Connecticut’s Department of Administrative Services (hereinafter “DAS”), and therefore, the respondent performs a governmental function, within the meaning of §1-200(11), G.S. 

 

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

 

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.  No request to inspect or copy such records or files shall be valid unless the request is made to the public agency in accordance with the Freedom of Information Act.  Any complaint by a person who is denied the right to inspect or copy such records or files shall be brought to the Freedom of Information Commission in accordance with the provisions of sections 1-205 and 1-206.

 

27.   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.

 

28.   It is concluded that §1-218, G.S., provides a right to inspect or copy records or files of “persons” who contract with public agencies for more than two million five hundred thousand dollars for the performance of a governmental function, if such request is made to the contracting public agency. 

 

29.   It is found that of the 53 contracts CCPA has with public agencies the respondent only has two that are in excess of two million five hundred thousand dollars and that such contracts are for custodial and paper products with the State of Connecticut Department of Public Works.

 

30.   It is found, however, that the contracts described in paragraph 29, above, are for the mere provision of goods and services to a public agency, without the delegated responsibility to administer or manage a program of a public agency.

 

31.   With respect to the Preferred Purchasing Program, it is found that CCPA does not have a contract with DAS in excess of two million five hundred dollars with respect to the Preferred Purchasing Program, and therefore it is not necessary to determine whether the respondent performs a governmental function within the meaning of §1-200(11), G.S., in that regard.

32.   Based upon the foregoing findings and conclusions, above, it is concluded that the respondent is not a public agency within the meaning of §1-200(1), G.S., and that §1-218, G.S., is not applicable under the facts and circumstance of this case. 

 

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 special meeting of February 16, 2007.

 

________________________________

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:

 

Paul Filson and Connecticut State

Council Service Employees International Union

77 Huyshope Avenue

Hartford, CT 06106

 

Director, Connecticut Community

Providers Association, Inc.

c/o Daniel P. Murphy, Esq.

150 Trumbull Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-075FD/paj/2/16/2007