FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Christopher Hoffman and Norwich Bulletin,
against Docket #FIC 92-146
Chairman, Slater-Norton Corporation Board of Directors,
Respondent January 19, 1993
The above-captioned matter was heard as a contested case on June 25, July 29, and September 17, 1992, at which times the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Upon the joint motion of the parties, the Commission incorporates as exhibits and testimony in this case all of the exhibits and testimony in Docket #FIC 91-391, Christopher Hoffman and The Norwich Bulletin vs. Norwich Free Academy et al.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. By letter of complaint filed May 1, 1992, the complainants appealed to the Commission, alleging that their April 2 request for certain records was denied.
2. It is found that the complainants by letter dated April 2, 1992 requested from the respondent access to and copies of the following records:
a. the approved 1991-92 Slater-Norton Corporation line-item budget;
b. the approved or proposed 1992-93 Slater-Norton line-item budget;
c. a Slater-Norton Board of Directors meeting schedule; and
d. the minutes of the last Slater-Norton Board of Directors meeting.
3. It is found that the respondent denied the complainants' request by letter dated April 14, 1992.
4. The respondent maintains that Slater-Norton Corporation is not a public agency subject to the Connecticut Freedom of Information ("FOI") Act.
Docket #FIC 92-146 Page 2
5. The FOI Act is applicable to public agencies, which section 1-18a(a), G.S., defines as follows:
"Public agency" or "agency" means 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 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 in respect to its or their administrative functions.
6. An entity is also an agency within the meaning of 1-18a(a) if it is the functional equivalent of a public agency. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 554 (1980).
7. The Commission on its own motion takes administrative notice of its record and final decision in Docket #FIC 90-97, Paul Choiniere and The Day against Norwich Free Academy.
8. In Docket #FIC 90-97, the Commission concluded that Norwich Free Academy is a public agency within the meaning of 1-18a(a), G.S.
9. Specifically, the Commission concluded that the 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.
10. It is found that the academy was established in 1854 by virtue of a corporate charter granted by the General Assembly.
11. It is found that in 1947 the academy was consolidated by act of the General Assembly with another corporation, the Norton Free Public Library and Reading Room of Norwich, under the name of The Norwich Free Academy.
12. It is found that in 1986 the academy effected another corporate reorganization.
Docket #FIC 92-146 Page 3
13. It is found that the corporate reorganization consisted of the formation of a parent corporation, called the Slater-Norton Corporation; the reincorporation of the academy as a subsidiary of Slater-Norton Corporation; and the incorporation of three other subsidiaries of Slater-Norton Corporation: NFA Foundation, Inc., NFA Educational Services, Inc., and NFA Corporation
14. It is found that the initial members, known as corporators, of Slater-Norton Corporation were those persons who were corporators of the academy on the date of the adoption of Slater-Norton Corporation's bylaws, and that the initial board of directors of Slater-Norton Corporation consisted of those persons who were trustees of the academy on the same date.
15. It is found that the assets of Slater-Norton Corporation at its incorporation consisted of real property and endowments of the academy, which the academy transferred to Slater-Norton Corporation for no consideration.
16. It is therefore found that Slater-Norton Corporation was created by the academy.
17. It is found that Slater-Norton Corporation exists principally to benefit, perform the functions of, carry out the purposes of, and uphold, promote and further the welfare, programs and activities of the academy.
18. It is found that Slater-Norton Corporation is the only member of the academy, with the right to elect the academy's entire board of trustees.
19. It is also found that Slater-Norton Corporation additionally has the power, in addition to those powers derived from its election of the academy's board of trustees, to approve any programs and expenditures which materially affect the growth and development of the academy; to approve any significant affiliation agreements between the academy and other institutions; to approve significant fund-raising programs proposed to be conducted by the academy; to approve the sale or disposition of any assets of the academy not in the usual course of business; to approve the incurring of any indebtedness for borrowed money except in accordance with an approved operating or capital budget; to approve the employment of the academy's superintendent/principal; to remove any member of the academy's board of trustees at any time; and to amend the academy's bylaws.
20. It is also found that Slater-Norton Corporation manages and administers the real property transferred to it and occupied by the academy, and manages endowments transferred to it by and for the benefit of the academy.
21. It is found that Slater-Norton Corporation is engaged in the construction of a science and information center to be operated for the primary benefit of the academy.
Docket #FIC 92-146 Page 4
22. It is therefore found that Slater-Norton Corporation predominantly performs functions that were previously performed by the academy in furtherance of the academy's central purposes.
23. It is found that the academy reimburses Slater-Norton Corporation for the costs to Slater-Norton attributable to maintenance, depreciation, and administration of the real property, which the academy continues to occupy.
24. It is found that most of Slater-Norton Corporation's income consists of the reimbursement from the academy described in paragraph 23, above, with the remainder of its income coming from investment income and sales of material, most of which assets in turn were transferred to Slate-Norton Corporation by the academy for no consideration.
25. It is also found that approximately one-half of Slater-Norton's income derives from tuition payments received by the academy from boards of education of the towns sending students to the academy, approximately 15% of which tuition payments are in turn transferred to Slater-Norton corporation as reimbursement for the maintenance, depreciation and administration of the real property now owned by Slater-Norton and occupied by the academy.
26. It is therefore found that Slater-Norton Corporation is predominantly funded by the academy, and that more than half of that funding is direct government funds which simply pass through the academy.
27. It is found that the board of trustees of the academy and the board of directors of Slater-Norton Corporation overlap almost entirely.
28. It is found that the academy and Slater-Norton Corporation have the same office and regular place of business.
29. It is found that the academy and Slater-Norton Corporation operate from a single consolidated budget prepared by an individual who is treasurer for both corporations.
30. It is found that the academy occupies its former real property, now owned by Slater-Norton Corporation, under a license agreement that is not an arm's-length transaction.
31. It is found that the governing bodies of the academy and Slater-Norton Corporation do not keep their respective governing responsibilities separate and distinct, and in this regard the testimony of the respondent's witnesses to the contrary is found not credible.
Docket #FIC 92-146 Page 5
32. It is found that the superintendent/principal of the academy has played a significant de facto administrative role in Slater-Norton Corporation, participating in all its meetings, preparing its minutes, directing its employees, reviewing its employees' evaluations and interviewing potential employees, participating in the planning and construction of the science and information center referenced in paragraph 21, above, and raising funds for Slater-Norton Corporation projects.
33. It is found that Slater-Norton Corporation's purpose is limited to operating exclusively for the support of the academy, that it is engaged solely in activities which support or benefit the academy, and that there is common supervision or control among the governing bodies of Slater-Norton Corporation and the academy.
34. It is found that the academy and Slater-Norton Corporation have virtually no areas in which their respective interests diverge, and that Slater-Norton Corporation exists almost entirely to benefit the academy.
35. It is therefore found that although Slater-Norton Corporation is not technically regulated or controlled by the academy, it is so inextricably interwoven with the academy as to be functionally, although not nominally, inseparable for purposes of the FOI Act.
36. The respondent moved to dismiss the complaint in this matter on the grounds that Slater-Norton Corporation does not perform a governmental function, receives no governmental funds, was not created by government, and is not regulated by or involved with government.
37. The respondent also maintains that since Slater-Norton Corporation is legally distinct from the academy, it is not affected by the academy's status as a public agency.
38. It is concluded, however, that the general rule of disclosure under the FOI Act should not be undermined by nominal appellations which obscure functional realities. Connecticut Human Society v. Freedom of Information Commission, 218 Conn. 757, 761 (1991).
39. It is further concluded that the functional reality in this case is that Slater-Norton Corporation was created by, performs the functions of, is pervasively intertwined with, and is predominantly funded by, a public agency, the academy.
40. It is therefore concluded that Slater-Norton Corporation and its chairman are public agencies within the meaning of 1-18a(a), G.S., to the extent that they perform functions to benefit or carry out the purposes of the academy.
Docket #FIC 92-146 Page 6
41. It is concluded that the records described in paragraph 2, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
42. The respondent offered no evidence or argument to prove that the records described in paragraph 2, above, should be exempt from disclosure, other than by virtue of their status as records of an agency claimed not to be subject to the FOI Act.
43. It is therefore concluded that the respondent violated 1-15 and 1-19(a) by refusing to provide to the complainants access to and copies of the records described in paragraph 2, above.
44. Nothing in this decision should be construed to affect the status of Slater-Norton Corporation if it should undertake functions unrelated to the academy, or to affect the status of Slater-Norton Corporation's subsidiaries other than the academy, the status of which subsidiaries is not at issue in this case.
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 to the complainant access to and copies of the records described in paragraph 2, above.
2. Henceforth the respondent shall strictly comply with the requirements of the Freedom of Information Act.
Approved by Order of the Freedom of Information Commission at its special meeting of January 15, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-146 Page 7
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:
The Norwich Bulletin
66 Franklin Street
Norwich, CT 06360
Chairman, Slater-Norton Corporation Board of Directors
c/o. Atty. Richard D. O'Conner
Siegal, O'Conner, Schiff
370 Asylum Street
Hartford, CT 06103
Debra L. Rembowski
Acting Clerk of the Commission