NO. CV 08 4019339S

THE WINTON PARK ASSOCIATION, INC.

V.

FREEDOM OF INFORMATION
COMMISSION, ET AL.
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SUPERIOR COURT

JUDICIAL DISTRICT OF

NEW BRITAIN


OCTOBER 7, 2009

MEMORANDUM OF DECISION

The plaintiff, The Winton Park Association Incorporated, appeals from an October 22, 2008 final decision of the defendant freedom of information commission (FOIC), granting relief to the defendant Jay J. Fain d/b/a Winton Road Holdings.1

The final decision (Return of Record, ROR, pp. 225-230) shows as follows:

  1. By letter dated February 29, 2008 and filed March 3, 2008, [Fain] appealed to this Commission, alleging that the [plaintiff] violated the Freedom of Information ("FOI") Act by failing to provide access to public meetings and records. [Fain] alleged that the [plaintiff's] annual meeting of February 4, 2008 did not comply with the requirements of the FOI Act and that the minutes of such meeting were not timely available for inspection.

  2. The [plaintiff] asserts that it is not a public agency within the meaning of 1-200 (1), G.S., and, therefore, does not need to comply with the requirements of the FOI Act.

* * *

  1. It is found that the Connecticut General Assembly incorporated the [plaintiff] Association by Special Act in 1937 as a "body politic."

  2. It is found that as a "body politic," the General Assembly expressly granted the [plaintiff] the right to raise taxes through annual assessments, to regulate the use and right of easements, to build and maintain all necessary main sewers and drains, to appoint special police to act with the same powers and duties that constables have in towns, to make reasonable health regulations, and to approve the construction and appearance of any structure within the association.

  3. It is found that the Association's by-laws state that the Association's principal purpose is the regulation of "activities for the general protection and maintenance of property values within the Association's boundaries."

  4. It is found that, by statute, a Board of Managers of not less than three and not more than eleven persons governs the Association. It is found that members of the Association elect the Board of Managers, including the officers of the Association, to one-year terms. It is found that the Board of Managers is in charge of the affairs of the Association and holds regular and special meetings. It is found that the Treasurer, who is an officer of the Association and a member of the Board of Managers, keeps account of all Association money and is responsible for depositing such money in banks and depositories designated by the Association's President and Board of Managers.

  5. It is concluded that the Association is a "district or other political subdivision of the state," within the meaning of 1-200(1)(A), G.S., because the Association is discharging limited functions of self-government, within a prescribed area, as authorized by the General Assembly.

  6. It is concluded, therefore, that the [plaintiff] is a public agency within the meaning of 1-200(1)(A), G.S.

* * *

  1. It is found that, customarily, the Association has not complied with the requirements of the FOI Act.

  2. It is found that the Board of Managers does not provide public notice of meetings. It is found that [Fain] learned about meetings of the Board of Managers and of votes taken by the Board on matters that were of concern to [Fain] "through the good graces of other members of the Association." It is further found that the Board of Managers does not record its votes.

  3. It is found that on February 4, 2008, the Association held its annual meeting. It is found that the Association did not properly notice the meeting, post an agenda, or otherwise comply with the requirements of the FOI Act. It is found that [Fain], who is a tax-paying member of the Association, attended the annual meeting, but was told to leave when the Board of Managers went into executive session to discuss "litigation."

  4. It is found that on February 29, 2008, [Fain] requested copies of records of the [plaintiff], including budgets and legal bills. It is found that on March 26, 2008, the [plaintiffs] attorney sent a letter to [Fain's] then attorney, informing [Fain] that the [plaintiff] would only provide the copies of the records to [Fain's] attorney and required [Fain] to go with his attorney to the [plaintiffs] attorney's office to inspect the record and designate which he wanted the [plaintiff] to copy for him.

  5. It is found that upon receiving the [plaintiff's] letter, described in paragraph above, [Fain] objected to the [plaintiff's] demands, which would require him to pay his attorney for access to public records. It is found that on June 27, 2008, [Fain] and his current attorney nevertheless acceded to the [plaintiff's] demands because they believed it was imperative to have access to the records. It is found that they viewed the records at the [plaintiff's] attorney's office and indicated by placing post-it notes which copies they wanted the [plaintiff] to provide to them, but that [Fain] had not received the designated copies as of the date of the hearing in this matter.2

  6. Accordingly, it is concluded that the [plaintiff] violated the access to meetings and records requirements of the FOI Act, including 1-210(a), 212(a), and 225, G.S.

The Commission thereupon entered the following orders:

  1. The Commission declares that the actions taken by [plaintiff] at its February 4, 2008 annual meeting are null and void.

  2. Forthwith, the [plaintiff] is to provide [Fain] free of charge copies of the records he designated, as described of the findings, above.

  3. The [plaintiff] shall reimburse [Fain] for the cost, if any, of retaining his attorney to accompany him to the [plaintiffs] attorney's office in order to have access to non-exempt public records, as described in the findings above. [Fain] shall provide to the [plaintiff] a statement of his attorney's fee, if any, for accompanying [Fain] to [plaintiff's] attorney's office and for inspecting the records with [Fain].

  4. Henceforth, the [plaintiff] shall comply with the access to meetings and records requirements of the FOI Act.

  5. The [plaintiff] is encouraged to attend a FOI workshop to be conducted by a member of the Commission's staff. The [plaintiff's] president or attorney should contact the Commission's office to arrange such workshop.

As indicated above, the first issue is the jurisdiction of the FOIC over the plaintiff. In deciding this issue, the court is bound by the rules derived from the Uniform Administrative Procedure Act (UAPA, General Statutes 4-166 et seq.) This is initially a question of law. Under the UAPA, "[c]ases that present pure questions of law [as opposed to factual determinations] invoke a broader standard of review than is ordinarily involved in deciding whether in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citations omitted.) Williams v. Freedom of Information Commission, 108 Conn. App. 471, 476, 948 A.2d 1058 (2008).3

"Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically could follow from those facts . . . . We also note other principles surrounding the deferential standard of review afforded administrative appeals. When the legislature intentionally uses broad terms without definition, it evinces a judgment that the agency should define the parameters of the broad terms of relevant statutes on a case-by-case basis. . . . The practical construction placed on the statute by the agency, if reasonable, is highly persuasive." (Citations omitted; internal quotation marks omitted.) Wiese v. Freedom of Information Commission, 82 Conn. App. 604, 608-09, 847 A.2d 1004 (2004).

The plaintiff argues that it is a community association, and the FOIC was obliged to decide whether it was a "public agency" under 1-200 (1) pursuant to the "functional equivalent" test of Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 Conn. 266 (1980).4 See also Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 760, 591 A.2d 395 (1991); Fromer v. Freedom of Information Commission, 90 Conn. App. 101, 875 A.2d 590 (2005). The "functional equivalent" approach was not undertaken by the FOIC in its final decision here.

The FOIC replies that its jurisdiction arises from 1-200 (1) (A). The plaintiff is a "political subdivision" created by the General Assembly and therefore the " functional equivalent" test is irrelevant. Once it is found that the plaintiff is a "government" body, then there is no need to address "functional equivalency."

The FOIC makes two points: The first is that, as it found in its findings 4 and 5, the plaintiff was created by a special act in 1937 as a "body politic."5 It has the "right to raise taxes through annual assessments, to regulate the use and right of easements, to build and maintain all necessary main sewers and drains, to appoint special police to act with the same powers and duties that constables have in towns, to make reasonable health regulations, and to approve the construction and appearance of any structure within the association." These findings led the FOIC to conclude in finding 8 that the plaintiff is a "district or other political subdivision of the state," within the meaning of 1-200 (1) (A), G.S., because "the Association is discharging limited functions of self-government, within a prescribed area, as authorized by the General Assembly." Secondly, the FOIC has taken this position in numerous prior cases as set forth in finding 8 and in its brief at page 9.

The court concludes that the FOIC's interpretation of its jurisdiction is articulated, time-tested and reasonable under Longley. It is true that, as the plaintiff argues, in Connecticut Humane Society, the Supreme Court immediately invoked the functional equivalency test. It also discounted the fact that the Society had been chartered by the legislature. In Connecticut Humane Society, however, no party raised the initial argument that once an entity displays a range of governmental powers, as here, it is unnecessary to determine whether it is a hybrid.6 See Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 595 A.2d 313 (1991), where there was no question that the Utilities District, an autonomous entity, itself was a public agency. See also State ex rel. Maisano v. Mitchell, 155 Conn. 256, 231 A.2d 539 (1967) (court concludes tax district is political subdivision of the state.) The record supports FOIC findings 8 and 9 and the FOIC's conclusion of jurisdiction.

The court's conclusion that the plaintiff is a public agency under 1-200 (1) (A) also resolves the plaintiffs claim that it did not receive a fair hearing, as it asked for a continuance to allow its president to give evidence on its activities. It was stated that she was unavailable on the date of the hearing due to a medical emergency. The court gave the plaintiff during the pendency of this appeal the opportunity to call its president to state what her testimony would have been before the FOIC. Her testimony was that the plaintiff seldom exercised its statutory powers, and was essentially a community organization. As this testimony would not have changed the conclusion of the court regarding jurisdiction, the plaintiff failed to show prejudice. Moraski v. Connecticut Board of Examiners of Embalmers and Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009); Papic v. Burke, 113 Conn. App. 198, 223, 965 A.2d 633 (2009) (not every procedural irregularity requires a court to set aside an administrative decision; material prejudice is required.)

The court also agrees with the FOIC that under 1-206 (b) (2), it was authorized to grant full relief to Fain by providing that his attorney should be reimbursed for his time in obtaining the requested records. See Pet v. Dept. of Public Health, 228 Conn. 651, 667, 638 A.2d 6 (1994).

The appeal is therefore dismissed.







Henry S. Cohn, Judge






1
Due to the orders in the final decision of the FOIC impacting the plaintiff, aggrievement is found. State Library v. Freedom of Information Commission, 240 Conn. 824, 694 A.2 1235 (1997).


2
At oral argument, the parties agreed that any matters taken up at the February 4, 2008, meeting had been acted upon again at a subsequent meeting and the plaintiff had supplied Fain with all records that he had designated at the plaintiffs attorney's office. This appeal thus only addresses two issues: whether the FOIC correctly found that the plaintiff was a public agency and whether its order requiring the plaintiff to reimburse Fain's counsel was appropriate.


3
The court also notes that Williams v. Freedom of Information Commission, supra, at 476, followed the case of Longley v. Retirement Commission, 284 Conn. 149, 163-64,931 A.2d 890 (2007) that the court should give deference to an agency's articulated, time-tested and reasonable interpretation.


4
This test involves whether (1) the entity performs a governmental function, (2) the level of governmental funding of the entity, (3) the extent that the entity has governmental involvement, and (4) whether the entity was created by the government. Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 554. The brief filed in this court by defendant Fain clearly demonstrates that the plaintiff is the functional equivalent of a public agency. Fain brief at 8.


5
Although not in the findings, the record indicates that the General Assembly also passed Special Acts concerning the plaintiff in 1949 and 1957.


6
The court cannot "retry" the factual determination made by the FOIC that the plaintiff has these powers under its special acts of 1937, 1949, and 1957. Rocque v. Freedom of Information Commission, 255 Conn. 651, 658-69, 774 A.2d 957 (2001).