FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 20, 2008, 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.  It is found that, on December 18, 2007, the respondent board met, and that the complainant was refused admittance to such meeting. 

 

2.  By letter filed with the Commission on January 14, 2008, the complainant alleged that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by prohibiting him from attending its December 18, 2007, meeting (hereinafter “the meeting”).  The complainant requested that any action taken at such meeting, or other meeting of the respondent, be declared null and void. 

 

            3.  Section 1-225(a), G.S., provides in relevant part that: “[t]he meetings of all public agencies… shall be open to the public….”

 

4.  Section 1-200(2), G.S., defines “meeting” to mean:

 

“any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power….” 

 

5.  The respondent contends that it is not a “public agency” within the meaning of the FOI Act, and that therefore the meeting is not governed by §1-225, G.S.

 

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

 

“…(A) [a]ny 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.”

 

7.  With respect to §1-200(1)(A), G.S., it is found that the respondent is not an executive, administrative or legislative office of Hartford or of the state, nor is it a Hartford or state agency, department, institution, bureau, board, commission, authority or official.  Accordingly, it is concluded that the respondent is not a public agency within the meaning of §1-200(1)(A), G.S.  

 

8.   With respect to §1-200(1)(C), G.S., §32-222, G.S., defines “implementing agency to mean “…(1) [a]n 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.…”

 

9.  It is concluded that the respondent is not an “implementing agency,” within the meaning of §1-200(1)(C), G.S.   

 

10.  With respect to whether the respondent is deemed to be the “functional equivalent” of a public agency within the meaning of §1-200(1)(B), G.S., the Supreme Court has 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 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.

 

            11.  Subsequently, in Connecticut Humane Society v. FOI Commission, 281 Conn. 757, 761 (1991), 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.”

 

            12.  With respect to the first criterion, it is found that Hartford Public Access Television (“HPATV”), is a community-based, non-profit, non-stock corporation which was organized for charitable, education and scientific purposes.  Among its specific purposes is to provide education and research in the production, direction, editing, filming, preparation and other aspects of the creation of television programming by and for the people of the Greater Hartford Area; to provide the people of Greater Hartford access to the equipment and technical expertise necessary to create and produce their own television programs according to their own interests, tastes and concerns; to provide training and education for potential job opportunities in the field of television for minority and disadvantaged youth; and to aid, direct, promote, organize, develop, and sponsor programs, both individually and in cooperation with other organizations, associations, institutions, corporations, societies, and agencies to effectuate the purposes of the corporation. 

 

            13.  It is further found that HPATV is the public, educational and governmental television access provider for the City of Hartford.  Specifically, HPATV runs the educational and governmental channels for the city and airs educational programming, including, on its government channel, city council meetings, and mayoral press conferences. 

 

            14.  It is found that providing public, educational and governmental television access is not a governmental function.     

 

            15.  With respect to the second criterion, it is found that the HPATV operates on a budget of approximately $310,000.00, per year.  It is further found that most of HPATV’s funding derives from Comcast, which pays it a per subscriber fee.  It is also found that HPATV is paid approximately $70,000 a year by the City of Hartford for services rendered, including the airing of governmental meetings and press conferences.  It is found that, since the Hartford payments are consideration for services rendered, such payments cannot be viewed as government funding.  Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466, 475-76 (1998).    

 

            16.  It is found that HPATV does not presently receive a substantial level of government funding.   

 

            17.  With respect to the third criterion, it is found that HPATV files annual reports with the Secretary of State and the Department of Public Utility Control.  It is further found that no Hartford public officials sit on the HPATV board.  It is found that members of the HPATV staff interact with a Hartford City staff member on a frequent basis, but that such interaction relates to the coordination of coverage of scheduled events.  It is found that the respondent is not subject to substantial government involvement or regulation.  

 

            18.  With respect to the fourth criterion, it is found that HPATV was created as a private nonprofit organization by a group of city residents with an interest in community-based television programming, and incorporated as such in 1976.  It is found that the respondent board members are elected by its membership, and membership status is available to all city residents. 

 

            19.  The complainant contends that HPATV was created by city resolution, and presented two after-filed exhibits as evidence.  The first, which shall be marked as Exhibit A, is a May 12, 1980 resolution of the Court of Common Council of the City of Hartford (“city council”); whereby the city council resolved to designate HPATV and the Hartford corporation counsel to negotiate on behalf of the city with the local cable provider to develop public access channels in Hartford.  The second, which shall be marked as Exhibit B, is a July 15, 1981 resolution of the city council, whereby the council approved the agreement between the city and HPATV for HPATV to develop and operate local access channels. 

 

            20.  It is found that the resolutions described in paragraph 19, above, post-date the creation of HPATV by several years.  It is found that HPATV was not created by government. 

 

 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.  Accordingly, it is concluded that the respondent is not subject to the jurisdiction of the Commission. 

 

            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 November 12, 2008.

 

 

________________________________

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:

 

Kevin R. Brookman

132 Jefferson Street

Hartford, CT 06106

 

Board of Directors, Hartford

Public Access Television

c/o Barbara S. McGrath, Esq. and

John Kim, Esq.

Connecticut Urban Legal Initiative

35 Elizabeth Street

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-031FD/paj/11/20/2008