FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Judy A. Benson and The Day,|
|against||Docket #FIC 1998-243|
|Board of Directors, New London
Development Corporation, City of
New London; and New London
Development Corporation, City of
|Respondents||June 30, 1999|
The above-captioned matter was heard as a contested case on December 21, 1998 at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Contested case docket #FIC 1998-335, Judy A. Benson and The Day v. Board of Directors, New London Development Corporation, City of New London; and New London Development Corporation, City of New London, was consolidated with the above captioned case for purpose of hearing. Records submitted by New London Development Corporation, were reviewed in camera.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. By letter dated and filed on August 12, 1998 the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by meeting in executive session with a consultant on August 12, 1998 and discussing redevelopment plans for Ocean Beach Park during such executive session.
2. The respondents contend that they are not public agencies and therefore, not subject to the FOI Act. They contend that even if they were public agencies the August 12, 1998 executive session discussion was permissible within the meaning of the FOI Act.
3. The test for determining whether entities such as the respondents are public agencies within the meaning of § 1-200(1), G.S., (formerly § 1-18a(1), G.S.), is set forth in Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544 (1980), and consists of the following four criteria:
(a) whether the entity performs a governmental function;
(b) the level of government funding;
(c) the extent of government involvement or regulation; and
(d) whether the entity was created by government.
4. The Supreme Court in Connecticut Humane Society v. FOI Commission, 218 Conn. 757, 761 (1991), advocated a case by case application of the Woodstock criteria, and established that all four of the foregoing criteria are not necessary for a finding of "functional equivalence". Rather "[a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive."
5. It is found that the respondent corporations purpose is to promote the economic development of the city of New London ("city"), its community and environs. In this regard, the respondent corporation assists in projects, undertakings, studies and activities under the supervision, and in cooperation and coordination with the city to revitalize the community and to combat deterioration.
6. It is found that the city has undertaken a massive redevelopment plan for a number of city, state, federal and privately owned properties located in New London and along the Thames River. It is found that the city delegated responsibility to the respondent for projects including the development of Ocean Beach Park, New London Mills, State Pier, City Pier, Fort Trumbull, Thames Peninsula and the Naval Undersea Warfare Center.
7. The respondent corporation was designated by the city council as the citys "implementing agency", within the meaning of the Economic Development and Manufacturing Assistance Act of 1990.
8. Section § 32-222(j), G.S., of the Economic Development and Manufacturing Assistance Act defines "implementing agency" as:
one of the following agencies designated by a municipality (1) an economic development commission, redevelopment agency; sewer authority or sewer commission; public works commission; water authority or water commission; port authority or port commission or harbor authority or harbor commission; parking authority or parking commission; (2) a nonprofit development corporation; or (3) any other agency designated and authorized by a municipality to undertake a project and approved by the commissioner.
9. The legislative policy of the Economic Development and Manufacturing Assistance Act is set forth at § 32-221, G.S., which provides:
It is found and declared that the maintenance and continued development of the state's manufacturing sector is important to the economic welfare of the state and to the retention and creation of job opportunities within the state; that the manufacturing sector of the state's economy is facing increased competition from other geographic areas of the world; that assistance from the state can promote the retention, expansion, and diversification of existing manufacturing businesses and encourage manufacturing and other economic base businesses from other geographic areas to locate into the state; that assistance from the state can enhance employment opportunity and the tax base of communities, particularly in the state's more economically disadvantaged communities; that the economic competitiveness of manufacturing and other economic base businesses is dependent in part upon the provision of adequate business support services such as day care, job training, education, transportation, employee housing, energy conservation, pollution control and recycling; that state assistance to promote the retention and expansion and increase the competitiveness of manufacturing and other economic base businesses is an important function of the state and is a public use for which public moneys may be expended; that in certain cases assistance and encouragement of diversification of manufacturing businesses within the state may promote the economic welfare of the state and is a public use and purpose for which public moneys may be expended; that the participation and cooperation of the State's agencies and authorities in providing financial assistance will improve the timeliness and decrease the costs to businesses of providing such assistance; and therefore the necessity in the public interest and for the public benefit and good for the provisions of sections 32-220 to 32-234, inclusive, is hereby declared as a matter of legislative determination.
10. As the citys "implementing agency" the respondent corporation is the citys representative, authorized by the city council to act on behalf of the city. The respondent corporation develops, prepares and submits development plans to the Connecticut Department of Economic and Community Development ("DECD"), interfaces with the DECD in connection with funding requests for such development plans, hires consultants and purchases properties. The respondent corporation also has the power to seize and condemn property on behalf of the city.
11. It is also found that the respondent corporation is the citys "development agency", within the meaning of § 8-186 et seq., G.S.
12. Section 8-186, G.S., provides:
It is found and declared that the economic welfare of the state depends upon the continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes and, in distressed municipalities, to lend funds to businesses and industries within a project area in accordance with such planning objectives are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.
13. Section 8-188, G.S., in relevant part, provides:
Any municipality which has a planning commission is authorized to designate a nonprofit development corporation as its development agency and exercise through such agency the powers granted under this chapter . Any municipality may, with the approval of the commissioner, designate a separate economic development commission, redevelopment agency or nonprofit development corporation as its development agency for each development project undertaken by the municipality pursuant to this chapter.
14. It is found that the respondent corporation and the city are tightly engaged in a public-private partnership, working closely with each other, and with state government, to facilitate projects for the revitalization and redevelopment of the city and its community.
15. It is found that economic development is a governmental function and the respondent corporation is performing such function.
16. It is found that 99% of the respondent corporations funding is from state and local government sources.
17. It is found that the DECD requires that all state money going to the city, including money to purchase land, pass through the respondent corporation.
18. It is concluded that the respondent corporation receives substantial government funding.
19. It is found that the city council exercises direct supervision upon the respondent corporation. It is found that the respondent corporation at the direction of the city council, reports regularly to the city council at each council meeting, and also reports to the Economic Development Committee of the council regarding all projects, planning and development efforts, and activities. The city council oversees activities of the respondent corporation, for example, on the Ocean Beach Park project, the city council directed the respondent corporation to retain a consulting firm to prepare a request for qualification ("RFQ"), to prepare a request for proposals ("RFP"), to carry Ocean Beach to financing, and to advise the city council on the selection of firms both at the RFQ and RFP stages.
20. It is found that the respondent corporations leadership is substantially involved with government. Two city council members serve on the respondent corporations board and executive committee. The respondent corporation changed its by-laws to create a second vice president position for the city manager. Non-voting liaisons to the respondent corporations board include the citys mayor and the chairman of the citys planning and zoning commission.
21. It is also found that the city transferred responsibility to the respondent corporation for the planning and development of city property, with final approval and control of plans resting with the city council.
22. It is concluded that the respondent corporation is substantially involved with government, and also subject to substantial government regulation.
23. It is found that the respondent corporation is a nonstock, nonprofit corporation, exempt from federal income tax under § 501(c)(3) of the Internal Revenue Code.
24. It is found that the respondent corporations predecessor was created in the 1970s. In September 1997, the newly reactivated and reconstituted respondent corporation was created as a result of a massive public-private initiative (involving both state and city government) to revitalize the community.
25. It is concluded that the respondent corporation was created by a partnering of government and non-government interests.
26. Based upon the totality of all relevant factors, it is concluded, that the respondents are the functional equivalents of public agencies within the meaning of § 1-200(1), G.S., (formerly § 1-18a(1), G.S.), and therefore, subject to the FOI Act.
27. With respect to the alleged improper executive session, it is found that the respondent board held a meeting on August 12, 1998 during which it met with a consultant in executive session. During the executive session, the consultant presented a revitalization plan for Ocean Beach Park (hereinafter "plan").
28. Section 1-225(a), G.S., (formerly § 1-21(a), G.S.), provides that "[T]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, (formerly § 1-18a) shall be open to the public."
29. Section 1-200(6)(E), G.S., (formerly 1-18a(6)(E), G.S.), permits an executive session for discussion of any matter which would result in the disclosure of exempt records described in § 1-210(b), G.S.), (formerly § 1-19(b), G.S.).
30. The respondents contend that the plan discussed during the August 12, 1999 executive session was an exempt record pursuant to § 1-210(b)(1), G.S., (formerly 1-19(b)(1), G.S.) and § 1-210(b)(7), G.S., (formerly § 1-19(b)(7), G.S.).
31. Section 1-210(b)(1), G.S., (formerly 1-19(b)(1), G.S.), permits the nondisclosure of "[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."
32. Section 1-210(c)(1), G.S., (formerly 1-19(c)(1), G.S.), further provides that notwithstanding the provisions of § 1-210(b)(1), G.S., (formerly § 1-19(b)(1), G.S.),
disclosure shall be required of recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.
33. It is found that the plan constitutes "recommendations or any report comprising part of the process by which governmental decisions and policies are formulated", within the meaning of § 1-210(c)(1), G.S., (formerly § 1-19(c)(1), G.S.).
34. It is further found that the plan was not a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of the agency, within the meaning of § 1-210(c)(1), G.S., (formerly § 1-19(c)(1), G.S.).
35. The respondents further claim that the plan constitutes a feasibility study, exempt pursuant to § 1-210(b)(7), G.S., (formerly § 1-19(b)(7), G.S.).
36. Section 1-210(b)(7), G.S., (formerly 1-19(b)(7), G.S.), permits the non-disclosure of " feasibility estimates made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned ." [Emphasis added.]
37. It is found that the plan does not constitute "feasibility estimates" within the meaning of § 1-210(b)(7), G.S., (formerly § 1-19(b)(7), G.S.).
38. It is also found that the plan was not "made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts", within the meaning of § 1-210(b)(7), G.S., (formerly § 1-19(b)(7), G.S.).
39. On May 3, 1999, the respondents, filed a supplemental brief with the Commission, claiming that the August 12, 1998 executive session discussion was permissible in light of § 32-11a(k), G.S.
40. Section 32-11a(k), G.S., provides that:
All information contained in any application for financial assistance submitted to the authority or the department, and all information obtained by the authority or the department with respect to any person or project, including all financial, credit and proprietary information, shall be exempt from the provisions of [§ 1-210(a), G.S., formerly] subsection (a) of section 1-19.
41. Besides argument of counsel as set forth in the supplemental brief, no evidence was presented at the hearing on this matter, and therefore, it is found that the respondents failed to prove that the plan discussed during the executive session constitutes a record exempt pursuant to § 32-11a(k), G.S. Furthermore, it is concluded that § 32-11a(k), G.S., specifically addresses records of the Connecticut Development Authority and the CECD.
42. It is further, concluded that the plan is not an exempt record, and therefore, the August 12, 1998 executive session discussion of such plan was not appropriate within the executive session provisions of the FOI Act.
43. Consequently, it is further concluded that the respondents violated the open meeting provisions of the FOI Act, when they discussed the plan in executive session on August 12, 1998.
The following order by the Commission is
hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondents shall strictly comply with the open meeting provisions of the FOI Act.
Approved by Order of the Freedom of Information Commission at its special meeting of
June 30, 1999.
Melanie R. Balfour
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:
Judy A. Benson and The Day
c/o Atty. Michael J. Quinn
Faulkner & Boyce, PC
216 Broad Street
PO Box 391
New London, CT 06320
Board of Directors, New London
Development Corporation, City of
New London; and New London
Development Corporation, City of
c/o Atty. Lisa Silvestri
56 Arbor Street
Hartford, CT 06106
Melanie R. Balfour
Acting Clerk of the Commission