FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Donald Yazgoor and the Norwalk Public Library,

 

Complainants,

 

against Docket #FIC 88-417

 

Bibliomation, Inc.,

 

Respondent October 11, 1989

 

The above-captioned matter was heard as a contested case on November 22, 1988, and February 6, April 24, and May 8, 1989, 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. At the September 20, 1988 meeting of the respondent's users' council, the complainant Donald Yazgoor orally requested that the respondent provide him, on behalf of the complainant library, access to a record of the exact salary for each position on the respondent's staff.

 

2. By letter dated September 23, 1988, the respondent's president denied the complainants' request.

 

3. By letter dated and filed with the Commission on October 19, 1988, the complainants appealed to the Commission from the denial of their request.

 

4. The respondent claims it is not a public agency within the meaning of 1-18a(a), G.S., and, therefore, not subject to the open records provisions of the Freedom of Information Act. In addition, the respondent claims it is governed by 33-470, G.S., which applies to all Connecticut non-stock corporations.

 

5. The respondent further claims that 31-128f, G.S., prohibits the disclosure the requested record.

 

6. At the hearing on April 24, 1989, the respondent made a motion to dismiss the complaint, which the hearing officer denied.

 

7. It is found that the requested record lists each of the respondent's employee positions, thus allowing for easy identification of each individual employee.

 

Docket #FIC 88-417 Page Two

 

8. It is also found, however, that the complainant's request is limited to information on each employee's position and the salary for that position, information not prohibited from disclosure under 33-128f, G.S.

 

9. In addition, it is found that the complainants, as a member and member representative on the respondent's users' council and the respondent's finance committee, are affiliated with the respondent, criteria for unlimited access to employee's records under 31-128f, G.S.

 

10. Thus it is concluded that 31-128f, G.S., in no way prohibits the disclosure of the requested record to the complainants.

 

11. It is found that 33-443, G.S., requires every non-profit corporation to prepare an annual statement of receipts and disbursements.

 

12. It is found that 33-470, G.S., subjects this annual statement to inspection by any member of the non-profit corporation.

 

13. It is found that the requested record is one of very important disbursements made by the respondent.

 

14. It is concluded, therefore, that 33-470, G.S., does not prohibit the disclosure of the requested record to the complainant.

 

15. As to whether the respondent was created by government, the following facts are found:

 

a. The Southwestern Connecticut Library Council ("SWLC") is one of six cooperating library councils formed by 11-9(e), G.S., and funded by 11-9(f), G.S., to coordinate libraries in each region of the state.

 

b. All but one or two members of SWLC were, and remain, town, school or college public libraries.

 

c. In the late 1970's, the SWLC began offering automation services to its members through its GEAC program.

 

d. In 1983, it became clear to the members and staff of the SWLC that its automation services were outgrowing the parent organization.

 

e. In 1984 and 1985, the membership attended special retreats to explore options on how to structure their automation services.

 

Docket #FIC 88-417 Page Three

 

f. The membership specifically rejected the option of being an "adjunct of the state," and decided to adopt the "entreprenurial non-profit corporation" model.

 

g. In 1985, the GEAC program left the aegis of the SWLC and was chartered as Bibliomation, Inc., a non-profit corporation.

 

h. The respondent Bibliomation retained the purpose and membership of the GEAC program.

 

i. After the respondent Bibiliomation spun off of the SWLC, three other regional library councils joined it.

 

16. It is concluded that the respondent Bibliomation was created by government to a significant extent.

 

17. As to whether the respondent now is funded by government, the following facts are found:

 

a. All the respondent's forty-two member libraries and library councils pay membership dues and also pay assessments for each particular service or product they purchase from the respondent.

 

b. Although all but one or two of the libraries are public, their payments to the respondent are the same as any payment to a vendor.

 

c. Some members pay their fees with state or federal grants for library automation, again purchasing specific services and products from the respondent as a vendor.

 

d. The respondent relies on state grants for its capital expenditures.

 

f. In its first year of operation, the respondent relied on $13,000 from a private trust fund for its operating expenses.

 

g. The respondent currently relies on member payments and certain miscellaneous income from its services for its operating expenses.

 

18. It is concluded that the respondent obtains only some of its funds from government.

 

Docket #FIC 88-417 Page Four

 

19. As to whether the respondent is regulated by government, the following facts are found:

 

a. The respondent uses the same contract, with the same contractual obligations, to provide services for its municipal public members as it uses to provide services for its private members.

 

b. While the government grants that some members use to pay their fees are subject to state or federal regulation, such regulations restrict only the use of those grants, not the activities or other monies of the respondent. This grant money is not so large a portion of the respondent's total funding as to dictate how the respondent functions to any significant extent.

 

c. The respondent is subject to the same government regulations as all non-profit corporations.

 

20. It is concluded that the respondent is not significantly regulated by or intertwined with government.

 

21. As to whether or not the respondent performs a governmental function, the following facts are found:

 

a. The respondent provides automation services to municipal, state, and private libraries, most of which services are not available currently from government sources.

 

b. Plans of the state library to provide more automation services for public libraries soon may put it in direct competition with the respondent in providing certain services.

 

22. It is concluded that the respondent performs a function that historically has not been a governmental function.

 

23. It is concluded that the respondent is not a public agency for Freedom of Information Act purposes.

 

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

 

1. The complaint is hereby dismissed.

 

2. The Commission notes, however, that 31-128f and 33-470, G.S., do not prevent the respondent from disclosing the requested record to the complainants and its other members. The Commission questions how a non-profit corporation can be

 

Docket #FIC 88-417 Page Five

 

accountable to its members without providing them with information like that requested by the complainants.

 

PURSUANT TO 4-180(c) C.G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

DONALD YAZGOOR AND THE NORWALK PUBLIC LIBRARY

c/o Sara L. Oley, Esquire

Assistant Corporation Counsel

City Hall

P.O. Box 798

Norwalk, CT 06856

 

BIBLIOMATION, INC.

c/o Randolph E. Richardson II, Esquire

Gager, Henry & Narkis

One Exchange Place

P.O. Box 2480

Waterbury, CT 06722

 

Approved by order of the Freedom of Information Commission at its regular meeting of October 11, 1989.

 

 

Tina C. Frappier

Acting Clerk of the Commission