FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

REVISED 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 11, 2001

 

 

 

 

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 reconsideration 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-l8a(1), G.S.]

 

7. Section 1-210(a), G.S. [formerly 1-l9(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. It is further found that the Charter and the Code of the City of New Haven do not include any reference to CIC, its programs or its activities and that CIC is not required to undertake any of these purposes by statute.

 

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.] It is further found that CIC has no contracts with the City, and does not process, service nor underwrite (except once for a fee) any City loans. It is further found that CIC receives no funding nor benefits from the City, other than the donation of Mr. Brancati's time, and that CIC, together with other corporations, has its own offices, personal property and staff.

 

17. Although it is further found that promoting economic development is a governmental function, it is further found that CIC is not performing that function for the City of New Haven or the State of Connecticut.

 

18. With respect to the second criterion of the functional equivalent test (the level of government funding), it is found that CIC derives most of its lending funds from the federal government by borrowing money from or by securing guarantees from the Small Business Administration. It is also found that, since 1994, CIC has loaned approximately $5,546,000 pursuant to SBA programs to small businesses in New Haven and other municipalities in Connecticut. It is also found that SBA on a year by year basis has provided a grant to reimburse certain operational activities of CIC. It is concluded that as to CIC programs or activities where CIC has access to federal funds to lend or to operate, CIC receives substantial federal funding as to those programs or activities only.

 

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, was CIC's executive director, and that he held such office by virtue of his position with the City, although there is no legal requirement or CIC requirement to that effect. It is further found, that, since CIC's inception until Mr. Brancati's resignation on August 21, 1999 as officer, member of the board and executive director, its executive director has been a New Haven city official. Mr. Cousineau who was the deputy director and who was subsequently appointed executive director is not and has never had any connection to the City. It is also found that Mr. Brancati was, until his resignation, chairman of CIC's board of directors, and that he had direct control of CIC. Moreover, it is found that CIC was subject to government involvement and regulation only as to CIC's lending programs and activities, which receive federal loans, guarantees or grants. Therefore, it is concluded that CIC is substantially involved with, and regulated by, government only until Mr. Brancati's resignation on August 21, 1999 as executive director and only as to those programs and activities for which CIC received federal loans, guarantees or grants.

 

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.] only during the time prior to Mr. Brancati's resignation on August 21, 1999 as officer, member of the board and executive director and only as to those programs or activities for which CIC received federal loans, guarantees or grant.

 

22. Consequently, it is concluded that CIC violated the provisions 1‑210(a), G.S. [formerly 1‑19, G.S.] as to records of loans and grants made by CIC with funds borrowed from or guaranteed by federal agencies, which were made prior to Mr. Brancati's resignation on August 21, 1999 as an officer, member of the board and executive director of CIC. The issue of what exemptions are applicable and what records must be disclosed are set forth in the companion FOI proceeding, Docket FIC 1999‑257.

 

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. It is further found that the Charter and the Code of the City of New Haven does not include any reference to TIF, its programs or its activities and that TIF is not required to undertake any of its purposes by statute.

 

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.

 

It is further found that TIF has no contracts with the City, does not process, service nor underwrite any City loans. It is further found that TIF receives no funding nor benefits from the City, other than the donation of Mr. Brancati's time, and that the TIF, together with other corporations, has its own offices, personal property and staff.

 

25. Although it is therefore found that promoting manufacturing development is a governmental function, it is further found that TIF is not performing that function for the City of New Haven or the State of Connecticut.

 

26. With respect to the second criterion of the functional equivalent test (the level of government funding), TIF derives all of its lending funds from loans from the federal government via the 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, was executive director of TIF and that he held such office by virtue of his position with the City although there is no legal requirement nor TIF requirement to that effect. It is found that Mr. Brancati, as executive director, had direct control of TIF until Mr. Brancati's resignation on August 21, 1999 as officer, member of the board and executive director. Mr. Cousineau, who was the deputy director and who was subsequently appointed executive director, is not and has never had any connection to the City. 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 including, Mr. Brancati. Therefore, it is concluded that CIC was substantially involved with government only until Mr. Brancati resigned on August 21, 1999 and only as to the loans/investments made with funds available from the Economic Development Administration.

 

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. It is concluded that TIF was not created by government.

 

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(1), G.S. [formerly 1-18a(1), G.S.] only during the time prior to Mr. Brancati's resignation on August 21, 1999 as officer, member of the board and executive director and only as to those loans/investments made with funds available from the Economic Development Administration.

 

30. Consequently, it is concluded that TIF violated the provisions 1-210(a), G.S. [formerly 1-19, G.S.] as to records of loans or investments made by TIF with funds borrowed from federal agencies, which were made prior to the resignation of Mr. Brancati on August 21, 1999 as an officer, member of the board and executive director of TIF. The issue of what exemptions are applicable and what records must be disclosed are set forth in the companion FOIC proceeding, Docket FIC 1999-257.

 

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 records set forth in Docket # FIC 1999-257 forthwith.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 11, 2001.

 

 

________________________________

Petrea A. Jones

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 James S. Rollins, Esq.

Bingham Dana LLP

One State Street, 21st floor

Hartford, CT 06103

 

Director, Office of Business Development,

City of New Haven

c/o Thayer Baldwin, Jr., Esq.

Corporation Counsel

165 Church Street, 4th floor

New Haven, CT 06510

 

New Haven Community Investment

Corporation; Technology Investment Fund

c/o Joseph L. Rini, Esq.

Hogan & Rini, PC

234 Church Street

New Haven, CT 06510

 

New Haven Enterprise Corporation

100 Crown Street

New Haven, CT 06510-3011

 

New Haven Investment Corporation

100 Crown Street

New Haven, CT 06510-3011

 

 

 

___________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/1998-380/RFD/paj/07/31/2001