FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

                                         

The above-captioned matter was heard as a contested case on December 14, 2010 and January 20, 2011, at which times both the complainant and the respondents appeared and presented testimony 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, by letter dated May 25, 2010, the complainant made a request to the respondent Executive Secretary for paper or electronic copies of records concerning the staffing of the SmartLiving Center for the years 2005 forward, including contracts, requests for proposals, related correspondence between the respondents and The United Illuminating Company (“UI”), and related correspondence or memorandums within UI (the “requested records”).

 

2.  It is found that, by letter dated June 3, 2010, the respondents informed the complainant that their search for the requested records determined that they maintained no records within the scope of the complainant’s request.   

 

3.  By letter dated and filed with the Commission on July 1, 2010, the complainant appealed to the Commission, alleging that the respondents’ failure to provide the requested records violated the Freedom of Information Act (“FOIA”). The complainant also requested that civil penalties be assessed against the respondents. Attached to the complaint were: a) an earlier complaint, dated April 5, 2010, which the complainant filed against UI; and b) the Commission’s letter dated April 26, 2010 indicating that the April 5, 2010 complaint had been administratively withdrawn, because the Commission lacked jurisdiction concerning the SmartLiving Center.

 

4.  Section 1-200, G.S., states in relevant parts:

 

(1)   “Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state …(B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law….

 

….

 

(11)  “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. 

 

5.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

6.  Section 1-218, G.S., states in relevant part:

 

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. 

 

            7.  It is found that the respondents do not maintain any requested records in their files. The respondents performed a diligent search of their files and also checked with Patrick McDonnell of UI concerning records filed by UI with the respondents. The requested records concern expenditures of approximately $146,000, as compared with approximately $105,000,000 per year for all Energy Conservation and Load Management Funds and approximately $23,000,000 per year for the UI Energy Conservation and Load Management Fund.

 

            8.  Accordingly, the more substantial issue of this case is whether the FOIA includes any right of the complainant, based upon his May 25, 2010 request to the respondent Executive Secretary, to receive the requested records that may be on file with UI? UI was offered the opportunity to intervene at the December 14, 2010 hearing and declined, by letter to the hearing officer dated January 14, 2011, with a detailed substantive explanation.

 

9.  In that the records request herein was made to the respondent Executive Secretary, and no records request in this case had been made directly to UI, the traditional doctrine of “functional equivalent” of a public agency is not at issue and will not be adjudicated herein. See Board of Trustees of Woodstock Academy v. FOIC, 181 Conn. 544, 552 (1980), codified at §1-200(1)(B), G.S. In contrast to this traditional doctrine, §1-218, G.S., requires that a records request be made to the public agency in contract with a person performing a governmental function. Indeed, the statutory “governmental function” framework (P.A. 01-169) was adopted for the very purpose of establishing that certain records of persons contracting with public agencies are subject to the FOIA.

 

            10.  It is found that the General Assembly has mandated that each electric distribution company establish an Energy Conservation and Load Management Fund in order to operate an energy conservation and load management program. Section 16-245m(b), G.S. A statutory assessment on electric utility bills of three mills per kilowatt hour is paid directly into each fund.  Section 16-245m(a)(1), G.S. Each electric distribution company proposes a detailed written plan, with different programs and expenditures for different classes of customers. The Department of Public Utility Control (“DPUC”) each year conducts an uncontested docket to audit past performance, and to review and approve a new plan. The DPUC sets the amount of co-payments for various classes of customers. The DPUC appoints the Energy Conservation Management Board to advise the DPUC. Section 16-245m(c) and (d), G.S. Each electric distribution company has its own dedicated staff to supervise the contractors or providers who perform specific energy conservation services. The DPUC authorizes the funds to pay these staffs supervising contractors and providers. The DPUC is in regular, appropriate communication with the electric distribution companies concerning the administration of energy conservation programs.

 

11.  It is found that UI administers and manages an energy conservation program created by the General Assembly, which program has been authorized by law to be administered or managed by UI.

 

            12.  It is further found that there is no written contract between the General Assembly or the DPUC as the agent for the General Assembly, and UI, as described in §1-218, G.S. It is evident that the statute envisions a written contract: the statute requires that the contract include certain provisions and by its terms indicate that records are subject to the FOIA. Nor is there evidence in the present case of an implied contract or the elements of contract: offer, acceptance and consideration. UI is simply carrying out obligations imposed by law and consideration cannot consist of performing existing legal obligations. In contrast to a contractual setting, the relationship between the DPUC and UI is based upon the model of utility regulation, though with important differences from rate regulation (which utilizes formal contested cases). The regulatory relationship between the DPUC and UI is therefore fundamentally different from the written contracts between DSS and the managed care organizations that were at issue in Docket #FIC 2005-025; Kari A. Hartwig v. Commissioner, State of Connecticut, Department of Social Services; and Docket #FIC 2005-284; Barbara Hunt and Marisol Pratts v. Commissioner, State of Connecticut, Department of Social Services.

 

13.  It is concluded that UI is not subject to the requirements of §1-218, G.S.

 

            14.  It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., when they failed to provide the requested records to the complainant or to seek to receive the requested records from UI. As a result of this conclusion, no consideration of civil penalties is warranted.

 

15.  The complainant has ably demonstrated that at present the individual person has little ability to inquire into the details of annual energy conservation expenditures of over $100,000,000, despite the fact that the funds are collected and spent pursuant to state statute and DPUC directive. At present, these expenditures are only subject to such transparency as the DPUC chooses to require.

 

The following orders by the Commission are 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 11, 2011.

 

 

__________________________

Cynthia A. Cannata

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:

 

Joseph W. Christiano, III

815 Laurel Avenue

Bridgeport, CT  06604-2406

 

Chairman, State of Connecticut, Department of Public Utility Control;

Kimberley J. Santopietro, Executive Secretary, State of Connecticut,

Department of Public Utility Control; and State of Connecticut,

Department of Public Utility Control

c/o Tatiana D. Eirmann, Esq.

State of Connecticut,

Department of Public Utilities Control

10 Franklin Square

New Britain, CT  06051

 

and

 

Robert L. Marconi, Esq.

Assistant Attorney General

10 Franklin Square

New Britain, CT  06051

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-412/FD/cac/5/17/2011