FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Andrew J. Simso, III,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-141

Commissioner, State of Connecticut, Department of Motor Vehicles; State of Connecticut, Department of Motor Vehicles; and Envirotest Systems Corporation,

 

 

Respondents

April 22, 1998

        The above-captioned matter was heard as a contested case on October 6, 1997, at which time the complainant and the respondent Department of Motor Vehicles ("DMV") appeared, and presented testimony, exhibits and argument on the complaint. The respondent Envirotest Systems Corporation ("Envirotest") did not appear. The caption has been changed to reflect the proper name of Envirotest.

        After consideration of the entire record, the following facts are found and conclusions of law are reached:

        1. The respondent commissioner and the respondent DMV are public agencies within the meaning of 1-18a(1), G.S. ( 1-18a(a), G.S., prior to October 1, 1997).

        2. It is found that by letters dated April 4, 1997 and April 18, 1997, to the respondent DMV and the respondent Envirotest, respectively, the complainant requested copies of all records or files related to any request, requirement or advisement of changes to the State of Connecticut Vehicle Inspection Report, Rev. 3-91 ("Report 3-91").

        3. It is found that by letter dated April 8, 1997, the respondent DMV informed the complainant that after a search of its files, no records were found to exist that are responsive to his request.

        4. It is found that by letter dated August 24, 1997, the respondent Envirotest informed the complainant that it was not a public agency and therefore did not fall within the jurisdiction of the Freedom of Information ( "FOI") Act.

        5. By letter dated April 28, 1997 and filed on May 2, 1997, the complainant appealed to this Commission alleging that the respondents violated the FOI Act by failing to provide him with all records or files related to any request, requirement or advisement of changes to Report 3-91.

        6. In determining whether Envirotest is the functional equivalent of a "public agency," the Commission must consider: (1) whether Envirotest performs a governmental function; (2) the level of governmental funding; (3) the extent of government involvement and regulation; and (4) whether Envirotest was created by the government. Connecticut Humane Society v. FOI Commission, 218 Conn. 757, 760 (1991). These factors must be considered cumulatively, with no single factor being essential or conclusive. These factors also must be applied on balance on a case by case basis to ensure that the general rule of disclosure underlying the FOI Act is not undermined.

        7. It is found that Envirotest is a for-profit corporation which contracts with various entities nationwide to administer environmental programs.

        8. It is concluded that Envirotest was not created by government.

        9. It is found that Envirotest has contracted with the respondent DMV to administer the state’s automobile emission program and that such program is a governmental function.

        10. It is therefore concluded that Envirotest performs a governmental function insofar as it conducts the state’s automobile emission program.

        11. It is found that the respondent DMV maintains offices at many of Envirotest’s emission stations and it conducts periodic site visits at the other stations to ensure that Envirotest complies with all state regulatory requirements with respect to Envirotest’s administration of the state’s automobile emission program.

        12. It is therefore concluded that Envirotest is subject to substantial governmental involvement and regulation.

        13. The Commission takes administrative notice of the Connecticut Budget for 1997-1999 and finds that the cost of the emission testing program in Connecticut is approximately twenty-five million dollars, the vast majority of which is paid to Envirotest pursuant to contract.

        14. It is therefore concluded that the level of governmental funding of Envirotest is substantial.

        15. It is concluded therefore that, on balance, Envirotest is the functional equivalent of a public agency within the meaning of 1-18a(1), G.S. ( 1-18a(a), G.S., prior to October 1, 1997) and is therefore subject to the jurisdiction of this Commission.

        16. Section 1-15(a), G.S., in relevant part provides:

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

        17. It is found that Report 3-91 was revised by the respondent DMV to simplify and update the report, although the respondent DMV has no standard procedure for making the revisions of the type described.

        18. It is also found that the revisions were requested by Envirotest via telephone and a draft version of the revised report was submitted by Envirotest to the respondent DMV, which report was approved and sent back to Envirotest for the printing of what is now Vehicle Inspection Report, Rev. 5/93.

        19. It is further found that neither the respondent commissioner nor the respondent DMV maintain any records or files related to any request, requirement or advisement of changes to Report 3-91.

        20. It is therefore concluded that the respondent commissioner and the respondent DMV did not violate 1-15(a), G.S., by failing to provide the complainant with the records described in paragraph 1, above.

        21. It is also found, however, that the respondent Envirotest failed to prove that it does not maintain any of the requested records or that such records are otherwise exempt from disclosure.

        22. Consequently, it is concluded that the respondent Envirotest violated 1-15(a), G.S., by failing to provide the complainant with the records described in paragraph 1, above.

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

        1. The respondent Envirotest shall forthwith provide the complainant with a copy of all records related to any request, requirement or advisement of changes to Report 3-91, and if no such records exist, the respondent Envirotest shall forthwith submit an affidavit to the complainant attesting to the fact that a good faith search has been made for the requested records and that no such records exist.

        2. The complaint is hereby dismissed as against the respondent commissioner and the respondent DMV.

        Approved by Order of the Freedom of Information Commission at its regular meeting of April 22, 1998.

_________________________
Doris V. Luetjen
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:
Andrew J. Simso, III
P.O. Box 4558
Danbury, CT 06813-4558

Commissioner, State of Connecticut, Department of Motor Vehicles; State of Connecticut, Department of Motor Vehicles
c/o Robert Waz
60 State Street
Wethersfield, CT 06101-0001

Envirotest Systems Corporation
c/o Attys. Jeffrey J. Mirman and Lisa A. Zaccardelli
Levy & Droney, P.C.
74 Batterson Park Road
P.O. Box 887
Farmington, CT 06034

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-141/FD/tcg/04241998