FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Paul Bass and New Haven Advocate,
Complainants
against Docket #FIC 1998-380
Director, Office of Business Development,
City of New Haven; New Haven Community
Investment Corporation; Technology Investment
Fund; New Haven Enterprise Corporation; and
New Haven Investment Corporation,
Respondents July 28, 1999

        The above-captioned matter was heard as a contested case on March 30, 1999, at which time the complainants and the respondents, excepting New Haven Enterprise Corporation and New Haven Investment Corporation, appeared, 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 dated November 10, 1998, the complainants requested that the respondents provide access to records of "…all loans and grants disbursed since January, 1994, by all corporations for which [Sal Brancati] serve[s] as executive director out of the 900 Chapel St. office, including the New Haven Community Investment Corporation [hereinafter ‘CIC’], Technology Investment Fund [hereinafter ‘TIF’], New Haven Enterprise Corporation [hereinafter ‘NHEC’], and the New Haven Investment Corporation [hereinafter ‘NHIC’]." In addition, the complainants asked for access to the names and addresses of all applicants denied grants by the entities named herein.

        2. By letter dated November 13, 1998, respondents CIC and TIF denied the complainants access to the requested records, contending that they are not the functional equivalents of public agencies within the meaning of the Freedom of Information (hereinafter "FOI") Act.

        3. By letter dated December 7, 1998 and filed on December 8, 1998, the complainants appealed to the Commission alleging that the respondents violated the FOI Act by not allowing inspection of the requested records.

        4. It is found that Sal Brancati, the respondent director of the Office of Business Development, City of New Haven, is not, and has never been, executive director of the respondents NHEC and NHIC, as contemplated in the request described in paragraph 1, above.

        5. It is therefore concluded that the records of NHEC and NHIC are not within either the scope of the request described in paragraph 1, above, or the complaint in this matter.

        6. It is found that the respondent director of the Office of Business Development, City of New Haven is a public agency within the meaning of 1-200(1), G.S. [formerly 1-18a(1), G.S.]

        7. Section 1-210(a), G.S. [formerly 1-19(a), G.S.], provides in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained…by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office hours….

        8. It is found that the requested records are not maintained by the respondent director in his capacity as director of the Office of Business Development.

        9. Therefore, it is concluded that, in his capacity as a city official, the respondent director did not violate 1-210(a), G.S. [formerly 1-19a(1), G.S.], in this matter.

        10. The dispositive issue in this case is whether the respondents CIC and TIF are the functional equivalents of public agencies and consequently subject to the requirements of the FOI Act.

        11. Section 1-200(1), G.S. [formerly 1-18a(1), G.S.], defines a "public agency" or "agency" to mean:

…any executive, administrative or legislative office of…any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official 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, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official….

        12. In Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 554 (1980) ("Woodstock"), the Supreme Court adopted the "functional equivalent" test to determine whether an entity is a public agency within the meaning of 1-200(1), G.S. [formerly 1-18a(1), G.S.] The test for functional equivalence to a public agency consists of the following four criteria: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.

        13. Subsequently, in Connecticut Humane Society v. FOI Commission, 218 Conn. 757, 761 (1991) ("Humane Society"), the Supreme Court elaborated that all four factors set forth in Woodstock are not necessary for a finding of functional equivalence, but rather that "all relevant factors are to be considered cumulatively, with no single factor being essential or conclusive."

        14. In 1998, the Appellate Court, in Domestic Violence Services of Greater New Haven, Inc. v. FOI Commission, 47 Conn. App. 466, 475, 477, 478 (1998) ("Domestic Violence"), added:

[t]he key to determining whether an entity is a government agency or merely a contractor with the government is whether the government is really involved in the core of the program…[the exercise of] direct, pervasive or continuous regulatory control….[and] government’s control of the detailed physical performance…[internal punctuation omitted]

        15. With respect to the first criterion of the functional equivalent test (whether the entity performs a governmental function), it is found that CIC does not set government policy. However, it is further found that the purpose of CIC, as stated in its amended and restated certificate of incorporation, is to promote the industrial and commercial development of the state of Connecticut, to lessen the burdens of government, to combat community deterioration, to promote the social welfare of Connecticut citizens by adding to the growth of industry and commerce, and to develop local entrepreneurship through the rendering of consultative, technical, educational and financial assistance, and the seeking of qualified applicants for loans from government and private agencies.

        16. It is further found that CIC has many of the same functions as the Office of Business Development, City of New Haven, which is a public agency within the meaning of 1-200(1), G.S. [formerly 1-18a(1), G.S.]

        17. It is further found that promoting economic development is a governmental function and that CIC is performing that function.

        18. With respect to the second criterion of the functional equivalent test (the level of government funding), it is found that CIC receives most of its funding from the federal government via Small Business Administration (hereinafter "SBA") loans. It is also found that, since 1994, CIC has granted approximately $5,546,000 in SBA funded loans to small businesses in New Haven and other municipalities in Connecticut. It is concluded that CIC receives substantial government funding.

        19. With respect to the third criterion of the functional equivalent test (the extent of government involvement or regulation), it is found that Sal Brancati, a New Haven public official, is CIC’s executive director, and that he holds such office by virtue of his position with the city. It is further found, that, since CIC’s inception, its executive director has been a New Haven city official. It is also found that Mr. Brancati is chairman of CIC’s board of directors, and that he has direct control of CIC. Moreover, it is found that CIC is subject to government involvement and regulation as a result of its function and the funding it receives. Therefore, it is concluded that CIC is substantially involved with, and regulated by, government.

        20. With respect to the fourth criterion of the functional equivalent test (whether the entity was created by government), it is found that CIC was created as a non-profit 501(c) corporation in 1973 and that, while its purpose at such time was to "… lessen the burdens of Government…," it cannot be found that CIC was created by government.

        21. Based upon the law of Woodstock (the functional equivalent test), Humane Society (factors considered cumulatively and no single factor essential), and Domestic Violence (the key is government control), as well as the forgoing findings, it is concluded that CIC is the functional equivalent of a public agency within the meaning of 1-200(1), G.S. [formerly 1-18a(1), G.S.]

        22. Consequently, it is concluded that CIC violated the provisions 1-210(a), G.S. [formerly 1-19, G.S.] when it declined to permit the complainants to inspect the records described in paragraph 1, above.

        23. With respect to the first criterion of the functional equivalent test (whether the entity performs a governmental function), it is found that TIF does not set government policy. However, the purpose of TIF, as stated in its amended and restated certificate of incorporation, is to provide financial assistance for the manufacturer retention and diversification programs of the City of New Haven; to provide venture capital and debt financing to companies interested in locating in the City of New Haven; to assist the City in retaining manufacturing jobs and creating new manufacturing opportunities; to assist the City in providing a more varied industrial base, particularly in growing , high technology businesses such as instruments, electrical machinery, printing and research and development of projects, undertakings, studies training programs and other activities in cooperation and in coordination with local government and civic bodies, local development corporation and others, for the primary purpose of combating the loss of manufacturing and other industrial jobs and for the purpose of training and retraining the City’s work force to provide a job base for businesses wishing to relocate to the City of New Haven.

        24. The state’s policy with respect to promoting manufacturing business is embodied in the Economic Development and Manufacturing Assistance Act, 32-221, G.S., which provides in relevant part:

[I]t 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.

        25. It is therefore found that promoting manufacturing development is a governmental function and that TIF is performing such function.

        26. With respect to the second criterion of the functional equivalent test (the level of government funding), it is found that the sole source of TIF funding is the federal Economic Development Administration. Therefore, it is concluded that TIF receives substantial government funding.

        27. With respect to the third criterion of the functional equivalent test (the extent of government involvement or regulation), it is found that Mr. Brancati, a New Haven public official, is executive director of TIF and that he holds such office by virtue of his position with the city. It is found that Mr. Brancati , as executive director, has direct control of TIF. It is further found that, under TIF’s amended and restated certificate of incorporation, there are fifteen members of the board of directors, five of whom are appointed by the New Haven Development Corporation, and the remaining ten of whom are appointed by the board of directors and/or its officers, including, Mr. Brancati. Therefore, it is concluded that CIC is substantially involved with government.

        28. With respect to the fourth criterion of the functional equivalent test (whether the entity was created by government), it is found that TIF was created as a non-profit corporation in 1983. It is further found that, according to its original articles of incorporation, two of TIF’s nine directors were appointed by the New Haven Development Commission, and one was by the Mayor. Therefore, it is found that TIF was created by a public-private partnership.

        29. Based upon the law of Woodstock (the functional equivalent test), Humane Society (factors considered cumulatively and no single factor essential), and Domestic Violence (the key is government control), as well as the forgoing findings, it is concluded that TIF is the functional equivalent of a public agency within the meaning of 1-200(a), G.S. [formerly 18a(1), G.S.]

        30. Consequently, it is concluded that TIF violated the provisions 1-210(a), G.S. [formerly 1-19, G.S.] when it declined to permit the complainants to inspect 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 complaint against the respondents director, NHEC and NHIC is hereby dismissed.

        2. The respondents TIF and CIC shall permit the complainants to inspect the requested records forthwith.

 

 

        Approved by Order of the Freedom of Information Commission at its regular meeting of

July 28, 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:

Paul Bass and New Haven Advocate
c/o Atty. James S. Rollins
Bingham Dana LLP
100 Pearl Street
Hartford, CT 06103-4507
Director, Office of Business Development, City of New Haven
c/o Atty. Thayer Baldwin, Jr.
Corporation Counsel
165 Church Street, 4th floor
New Haven, CT 06510
New Haven Community Investment Corporation; Technology Investment Fund
c/o Atty. Joseph L. Rini
Hogan & Rini, PC
234 Church Street
New Haven, CT 06510
New Haven Enterprise Corporation
900 Chapel Street, Suite 640
New Haven, CT 06510
New Haven Investment Corporation
900 Chapel Street, Suite 640
New Haven, CT 06510

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

FIC1998-380FD/mrb/08051999