In the Matter of a Complaint by                        FINAL DECISION


Paul Choiniere and The Day,




            against              Docket #FIC 90-97


Norwich Free Academy,


                        Respondent                  February 27, 1991


            The above-captioned matter was heard as a contested case on July 24, 1990, at which time 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 letter of complaint dated March 7, 1990 and filed with the Commission on March 13, 1990, the complainants appealed to the Commission, alleging that their requests for certain documents regarding the budget of the respondent academy had been denied, and requesting a determination of whether the respondent is a public agency as defined by the Freedom of Information ("FOI") Act.


            2.         By letter dated February 16, 1990 to the respondent, the complainants requested copies of:


                        a.         the line-item budget for the 1989-1990 school year;


                        b.         the proposed line-item budget for the 1990-1991 school year;


                        c.         the teachers' union contract;


                        d.         a list of the respondent's teachers by name, position and salary; and


                        e.         the 1990 schedule of the regular meetings of the respondent's Board of Trustees.


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            3.         By letter dated February 28, 1990 to the complainants, the respondent acknowledged the request, but did not provide any of the requested records.


            4.         At the hearing on this matter, the respondent academy moved to dismiss the appeal on the ground that it is not a public agency as defined in 1-18a(a), G.S., and is therefore not subject to the jurisdiction of the Commission.


            5.         The Commission takes administrative notice of its record and final decision in Docket #FIC 81-137, Mary Petrowski vs. Norwich Free Academy, et al.


            6.         It is found that the respondent academy is a secondary school which exists by virtue of a corporate charter granted in 1854 by the General Assembly and which is approved by the State Board of Education pursuant to 10-34, G.S.  By special charter, all the property and affairs of the respondent academy are under the management and control of a board of trustees.  The academy's purpose is to maintain and operate a school and engage in educational enterprises in Norwich for the benefit of the inhabitants of Norwich and the vicinity.


            7.         Article Eight of the Constitution of Connecticut states: "There shall always be free public elementary and secondary schools in the state."


            8.         In furtherance of this constitutional mandate, the General Assembly enacted 10-220, G.S., which requires local boards of education to implement the educational interests of the state as defined in 10-4a, G.S.


            9.         It is found that the board of education of the city of Norwich has designated the respondent academy as a facility to provide secondary education to Norwich residents, pursuant to 10-33, G.S.


            10.       It is found that several towns surrounding Norwich (including Bozrah, Lisbon, Sprague, Voluntown and Franklin) do not have their own high schools and Norwich Free Academy is the designated high school for the area.


            11.       It is found that the respondent academy is the primary facility in Norwich and the surrounding seven towns for the education of secondary school students, with a current enrollment of approximately 1,900 students, including approximately 1,100 students from Norwich.  Although Norwich operates another high school (Norwich High School), only about 50 students attend it, while approximately 80% of Norwich students attend Norwich Free Academy.  In fiscal year 1989-1990, funding by the city of Norwich High School amounted to $243,294, while funding by the city of Norwich Free Academy amounted to $7,532,438.


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            12.       It is found that there is no entrance exam required for admission to the respondent academy and all students who have completed their eighth grade education or equivalent are accepted.


            13.       It is found that, pursuant to 10-33 and 10-34, G.S., Norwich and the surrounding towns pay the whole of tuition fees of the pupils who with their parents or guardians reside in Norwich and the surrounding towns and attend the respondent academy.


            14.       It is found that Norwich Free Academy is reimbursed by the towns for providing special education programs to special education students.


            15.       It is concluded that Norwich and the surrounding towns utilize the statutory scheme developed by the legislature in 10-33 and 10-34, G.S., to fulfill the state constitutional mandate that a free public education at the secondary school level be provided to all children residing in Connecticut.


            16.       It is therefore concluded that the respondent performs a governmental function by providing free secondary school education.


            17.       It is found that the respondent received 82.43% of its 1988-1989 fiscal year operating expenses from tuition payments received from the boards of education of the towns sending students to the academy, and that that percentage is typical of the level of public funding.


            18.       It is also found that the respondent's students are provided with free transportation to and from the academy, paid for by the boards of education of the towns sending students to the academy.


            19.       It is concluded that the respondent is predominantly funded by the government.


            20.       It is found that most of the teachers at the respondent academy are certified by the state pursuant to state statutes and regulations.


            21.       It is found that the academy's teachers achieve tenure by operation of the state teachers' tenure act, 10-151 et seq., G.S.


            22.       It is found that the academy's teachers are eligible to apply for retirement credit pursuant to 10-183b et seq., G.S.


            23.       It is found that the academy is subject to state statutes regarding binding arbitration of labor disputes with its teachers, pursuant to 10-153f and 10-153k, G.S.


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            24.       It is found that, pursuant to 10-76o, G.S., the academy is required to provide for its students special education programs required to be provided by local and regional school districts, and may charge any sending town for the costs of any such special education, which town in turn is eligible to apply for state payment of such costs under 10-76g, G.S.


            25.       It is found that, pursuant to 10-217a, G.S., each town or regional school district providing health and welfare services for students attending the respondent academy must be reimbursed by the state for the amount paid from local tax revenues for such services.


            26.       It is found that, pursuant to 10-221b, G.S., all public high schools and any private high school which receives state funds must provide certain directory information and on-campus recruiting opportunities to federal and state armed services representatives and must establish a written uniform policy for the treatment of recruiters.


            27.       It is found that, pursuant to 10-233a(g), G.S., the provisions of the student expulsion act, 10-233a et seq., G.S., are applicable to the respondent by virtue of the payment by local boards of education of all of the tuition costs for students enrolled in the academy.


            28.       It is found that 10-282 and 10-283, G.S., provide state grants for "the construction, furnishing and equipping of any building which the towns of Norwich, Winchester and Woodstock may provide by lease or otherwise for use by the Norwich Free Academy, Gilbert School and Woodstock Academy, respectively, in furnishing education for public school pupils under the provisions of 10-34 ...."


            29.       The respondent maintains, however, that all of its buildings are constructed from funds from its endowment or from private sources, and that, pursuant to P.A. 90-256, Sec. 6, amending 10-285b(d), G.S., it is not eligible for school construction grant commitments from the state because half of its governing board are not representatives of the board or boards of education designating the academy as the high school for each board's town.


            30.       It is found, however, that although the respondent academy's by-laws provide for private election of its governing board, nothing in the by-laws prevents the elector of the governing board from constituting the board at any time to conform with the requirements of P.A. 90-256.


            31.       It is also found that the respondent, like public schools, is eligible to receive the proceeds of municipally-issued bonds for school building projects pursuant to 10-289, G.S.


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            32.       The respondent also maintains that the statutes described in paragraphs 21 through 31, above, because they specifically include the respondent academy as well as public high schools within their scope, indicate that the legislature recognized the unique status of the academy as different from a public institution.


            33.       It is concluded, however, that the statutes described in paragraphs 21 through 31, above, demonstrate an extremely high level of government involvement in the operations of the academy.


            34.       The respondent also maintains that it should not be treated as a public agency because:


                        a.         under 10-257f, G.S., teacher-pupil ratio aid grants went to the towns sending students to the academy, but not to the academy;


                        b.         under 10-262g, G.S., the sending towns were eligible for base aid grants for the fiscal year ending June 30, 1989, but the academy was not;


                        c.         the academy does not receive education cost sharing monies from the state, which funds instead go to local boards of education; and


                        d.         the academy does not receive funds from the state for professional teacher development.


            35.       It is concluded, however, that the test for determining whether the respondent is a public agency for purposes of 1-18a(a), G.S., is one of functional equivalence, not identical treatment.


            36.       The respondent also maintains, based on the legislative history of the FOI Act, that the legislature never intended to include the academy within the purview of the definition of public agency contained in 1-18a(a), G.S.


            37.       It is concluded, however, that the entire legislative history of the FOI Act with respect to 1-18a(a), G.S., has been fully considered by the Supreme Court in Board of Trustees of Woodstock Academy, et al. v. Freedom of Information Commission, et al., 181 Conn. 544 (1980), and that the court has concluded that the criteria to be utilized in determining whether an institution such as the respondent is the functional equivalent of a public agency are (1) whether the entity performs a


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governmental function; (2) the level of governmental funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.


            38.       It is therefore concluded that since the respondent academy performs a basic governmental function in providing free public education at a secondary school level, is predominantly publicly financed, has its operations examined and certified by the state board of education so as to be eligible for reimbursement for tuition fees by local towns and for other statutory benefits, and is an entity created by statute for the purpose of maintaining a public school for the benefit of the inhabitants of Norwich and other towns in the vicinity, it must be considered a public agency for purposes of the FOI Act.  Each of the four factors of functional equivalence is amply in evidence in the circumstances of this case.


            39.       It is therefore concluded that the respondent academy is a public agency within the meaning of 1-18a(a), G.S., and is subject to the jurisdiction of the Commission.


            40.       It is also concluded that the records described in paragraph 2, above, are public records within the meaning of 1-18a(d), G.S.


            41.       It is further found that the complainants have been denied the right to inspect or copy records within the meaning of 1-19 and 1-21i(b), G.S.


            42.       It is finally found that the respondent offered no evidence to prove that the requested records are exempt from disclosure, other than claiming that the academy is not a public agency.


            43.       It is concluded therefore that the respondent violated 1-15 and 1-19(a), G.S., by failing to provide copies of the requested records to the complainants.


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


            1.  The respondent shall forthwith provide the complainants copies of the requested records.


            2.         Henceforth the respondent shall strictly comply with the provisions of the FOI Act.


Approved by order of the Freedom of Information Commission at its regular meeting of February 27, 1991.



                                    Tina C. Frappier

                                    Acting Clerk of the Commission


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c/o Rod W. Farrell, Esq.

McGuire and McGuire

68 Federal Street

P.O. Box 270

New London, CT 06320



c/o Donald W. Strickland, Esq.

Siegal, O'Connor, Schiff, Zangari & Kainen

370 Asylum Street

Hartford, CT 06103



                                    Tina C. Frappier

                                    Acting Clerk of the Commission