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FREEDOM OF INFORMATION
COMMISSION |
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In the Matter of a Complaint by |
FINAL DECISION |
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Marie
Iadarola Fadus, |
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Complainant |
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against |
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Docket
#FIC 1999-077 |
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Executive
Director, |
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Respondents |
September
22, 1999 |
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The above-captioned matter was heard as a contested
case on June 24, 1999, at which time the complainant and the respondents
appeared, stipulated to certain facts 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 February 5, 1999, the complainant requested that the respondent
executive director provide her with certain information and copies of records
maintained by the respondents.
2.
By
letter dated February 10, 1999, the respondent executive director responded to
the complainant’s request and stated that the information and copies of
requested records did not have to be provided.
3.
By
letter dated February 18, 1999 and filed on February 22, 1999, the complainant
appealed to the Commission alleging that the respondents violated the Freedom
of Information (“FOI”) Act by failing to comply with her request. The complainant requested the imposition of
a civil penalty against the respondents.
4.
At
the hearing on this matter, the respondents argued that WeCAHR is not a public
agency within the meaning of §1-200(1), G.S., [formerly §1-18a(1), G.S.], and the
respondents therefore are not required under the FOI Act to comply with the
complainant’s request.
5.
The dispositive issue in this case is whether the respondents WeCAHR and
its executive director, are the functional equivalents of public agencies and
consequently are subject to the requirements of the FOI Act.
6.
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….
7.
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.
8.
Subsequently, in Connecticut Humane Society v. FOI Commission,
218 Conn. 757, 761 (1991), 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.”
9. With respect to the first criterion of the functional equivalent
test (whether the entity performs a governmental function), it is found that
WeCAHR primarily engages in advocacy on behalf of individuals who have mental
disabilities and their families, to ensure that they receive proper service and
care within the State of Connecticut.
10. It is found that WeCAHR’s specific purposes,
as set forth in its constitution are:
“A. To promote the general
welfare of the mentally retarded and
handicapped wherever they
may be;
B. To foster the development
of programs in their behalf.
C. To encourage research
related to mental retardation and
handicapping conditions.
D. To advise and aid parents
in the solution of their problems and to coordinate their efforts and
activities.
E. To develop a better
public understanding of the problems of the mentally retarded and handicapped.
F. To cooperate with all
public, private, and religious agencies and professional groups in furtherance
of these ends.
G. To serve locally as a
clearinghouse for gathering and giving out information regarding the mentally
retarded and the handicapped.
H. To solicit and receive
funds for the accomplishment of the above purposes.”
11. Although the purposes set forth in
respondent WeCAHR’s constitution do not relate to a traditional or historically
governmental function, §46a-7, G.S., establishes the
state Office of Protection and Advocacy (hereinafter “P&A”) and provides
that:
“It is hereby the declared policy
of the state to provide for coordination of services for the disabled among the
various agencies of the state charged with the responsibility for the care,
treatment, education and rehabilitation of the disabled.”
12. Further, §46a-11(6), G.S., empowers
the director of P&A to “[c]oordinate and cooperate with other private and
public agencies concerning the implementation, monitoring and enforcement of
the rights of persons with disabilities and enter into cooperative agreements
with public or private agencies for furtherance of the rights of persons with
disabilities.”
13. It is found that WeCAHR has been a party to
a personal services agreement (hereinafter “contract”) with P&A since 1987,
under which WeCAHR is required to provide advocacy representation to the
residents of Southbury Training School (“STS”). Pursuant to the contract, the advocacy representation provided by
WeCAHR consists of evaluation of each client’s situation, review of records,
contacts with friends and relatives and with direct care, administrative and
clinical staff; representation of the client’s interests at meetings; and where
appropriate, pursuit of administrative remedies.
14. It is found that the contract with WeCAHR
came about in 1987 due to a federal court consent decree, under which the State
of Connecticut was required to develop a plan to resolve certain unsatisfactory
conditions at STS. Under the plan, the
state agreed to provide resources for an independent advocacy program at STS,
to be developed by P&A. P&A then
elected to sub-contract for advocacy services, which ultimately resulted in the
award of the contract to WeCAHR.
15. It is also found however that P&A is not
required to use WeCAHR nor is WeCAHR required to provide advocacy services at
STS, in the absence of a contract with P&A, and essentially the
relationship of WeCAHR to P&A is that of a contractor.
16. It is also found that WeCAHR would continue,
although on a much smaller scale, to operate and provide other advocacy
services without the contract with P&A relating to advocacy at STS.
17. It is concluded that the coordination of
services for the disabled has evolved into a governmental function, to the
degree set forth in §46a-7, G.S.; however, under
the facts of this case, it is further concluded that WeCAHR is not performing a
governmental function simply by performing its advocacy service to government,
pursuant to contract.
18. With respect to the second criterion of the
functional equivalent test (the level of government funding), it is found that
WeCAHR’s budget for fiscal year 1999 was $326,253.00 and that 68% of its total
budget revenue is derived from public funds in the form of federal and state
grants, town contributions and WeCAHR’s contract with P&A.
19. It is concluded that WeCAHR is substantially
funded by government.
20. With respect to the third criterion of the
functional equivalent test (the extent of government involvement or
regulation), it is found that WeCAHR is governed by a board of directors, which
elects its own members after a nominating committee (consisting of members of
WeCAHR and at least one WeCAHR board member) reports its list of nominees to
the board. It is further found that
there are no governmental appointments to the board of directors.
21. It is further found that the board of
directors is responsible for the conduct of WeCAHR, without any control by, or
input from, government.
22. It is also found that the only reporting
requirements WeCAHR has under its contract with P&A, are to: provide P&A with monthly activity
reports regarding disposition of individual cases on a monthly report form;
meet twice a year with officials of P&A to review files and periodically,
to discuss issues arising under the contract; submit both a plan indicating the
number of staff positions and their titles to be funded through the P&A
contract, an estimate of the number of clients that will be served and
significant initiatives its staff plans to pursue and a budget form to be
approved by P&A; and provide an annual audit. P&A has no direct, day-to day control over the operations of
WeCAHR.
23. Aside from those items referenced in
paragraph 22, above, there is no evidence of other government regulation or
control over the operations of WeCAHR.
24. It is concluded that WeCAHR is not
significantly regulated by government.
25. With respect to the fourth criterion of the
functional equivalent test (whether the entity was created by government), it
is found that WeCAHR was incorporated in the State of Connecticut as a
non-profit organization in 1977, and that its full corporate title at that time
was Western Connecticut Association For The Handicapped and Retarded which
subsequently was changed to Western Connecticut Association For Human Rights,
Inc. in 1991.
26. It is further found that WeCAHR is a chapter
of The Arc/Connecticut and The Arc, a national non-profit organization on
mental retardation.
27. It is further found that the creators of
WeCAHR consisted of parents of mentally disabled children who needed assistance
in dealing with the various government agencies charged with overseeing issues
concerning disabled citizens.
28. It is concluded that WeCAHR was not created
by government.
29. It is further concluded that, on balance,
the respondent WeCAHR and consequently, the respondent executive director are
not the functional equivalent of public agencies within the meaning of §1-200(1), G.S. [§1-18a(1), G.S.], and
therefore are not subject to the jurisdiction of this Commission.
30. In view of the conclusion in paragraph 29,
above, the Commission lacks jurisdiction to order the disclosure of the
information and records requested by the complainant in her February 5, 1999
letter.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint.
1. The
complaint is hereby dismissed.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
September
22, 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:
Marie
Iadarola Fadus
225
Crescent Circle
Cheshire,
CT 06410
Executive
Director, WeCAHR,
Inc.;
and WeCAHR, Inc.
Lake
Avenue Plaza
11
Lake Avenue Extension
Danbury,
CT 06811
__________________________
Melanie
R. Balfour
Acting
Clerk of the Commission
FIC1999-077/FD/mes/09231999