FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 11, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The case caption has been amended to reflect the accurate name of the respondent.

 

            At the request of the hearing officer, the respondent submitted after-filed exhibits, pursuant to §1-21j-38, Regulations of Connecticut State Agencies.  Such exhibits are hereby marked as follows:

 

Respondent’s Exhibit 3: certificate of incorporation of the respondent

Respondent’s Exhibit 4: by-laws of the respondent

Respondent’s Exhibit 5: list of board of directors of the respondent

Respondent’s Exhibit 6: mission statement of the respondent

Respondent’s Exhibit 7: annual report of the respondent.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  It is found that, on March 20, 2008, the complainant orally requested a DVD copy of the March 20, 2008, Connecticut House Judiciary hearing from the respondent (hereinafter either “the respondent” or “CPAN”).  It is found that, approximately two weeks later, the respondent sent the requested DVD copy to the complainant’s residence, along with a bill for thirty-five dollars.  It is found that the complainant paid the respondent the thirty-five dollar fee on April 28, 2008. 

 

2.  By email dated and filed with the Commission on April 29, 2008, the complainant alleged that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by charging an excessive fee for the DVD copy described in paragraph 1, above.

 

3.  Section 1-211, G. S., provides in relevant part:

 

(a)  [a]ny public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212.

 

                        (Emphasis added)

 

4.  Section 1-212, G. S., provides in relevant part:

 

(b)  The fee for any copy provided in accordance with subsection (a) of section 1-211 shall not exceed the cost thereof to the public agency.  In determining such costs for a copy, other than for a printout which exists at the time that the agency responds to the request for such copy, an agency may include only:

 

(1)  An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs except as provided in subdivision (4) of this subsection;

 

(2)  An amount equal to the cost to the agency of engaging an outside professional electronic copying service to provide such copying services, if such service is necessary to provide the copying as requested;

 

(3)  The actual cost of the storage devices or media provided to the person making the request in complying with such request; and

 

(4)  The computer time charges incurred by the agency in providing the requested computer-stored public record where another agency or contractor provides the agency with computer storage and retrieval services.  Notwithstanding any other provision of this section, the fee for any copy of the names of registered voters shall not exceed three cents per name delivered or the cost thereof to the public agency, as determined pursuant to this subsection, whichever is less.  The Department of Information Technology shall monitor the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistent among agencies.

 

                        (Emphasis added)

                       

            5.  Section 1-200(5), G. S., defines “public records or files” to mean:

 

…any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

                        (Emphasis added)

 

6.  The respondent contends that it is not a “public agency” within the meaning of the Freedom of Information (hereinafter “FOI”) Act. 

 

7.  Section 1-200(1), G. S., defines “public agency” to mean:

 

“…(A) [a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or 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, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency,” as defined in section 32-222.”

 

8.  With respect to §1-200(1)(A), G. S., it is found that the respondent is not an executive, administrative or legislative office of the state, nor is it a state agency, department, institution, bureau, board, commission, authority or official.  Accordingly, it is concluded that the respondent is not a public agency within the meaning of §1-200(1)(A), G. S.  

 

9.  With respect to §1-200(1)(C), G. S., §32-222, G. S., defines “implementing agency to mean “…(1) [a]n 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.…”

 

10.  It is concluded that the respondent is not an “implementing agency,” within the meaning of §1-200(1)(C), G. S.  

 

11.  With respect to whether the respondent is deemed to be the “functional equivalent” of a public agency within the meaning of §1-200(1)(B), G. S., the Supreme Court has adopted a “functional equivalent” test to determine whether an entity is a public agency.   Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 554 (1980) (“Woodstock”).  Such test 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.

 

            12.  Subsequently, in Connecticut Humane Society v. FOI Commission, 281 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.”

 

            13.  With respect to the first criterion, it is found that CPAN is a non-profit corporation which was organized for the specific purpose of providing gavel-to-gavel coverage of Connecticut governmental events of the executive, legislative and judicial branches in order to educate the public and advance the public’s understanding of the workings of state government.  In that regard, CPAN operates and administers the Connecticut Network (CT-N), which is the cable access and internet provider of the programming of state government proceedings.   

 

            14.  It is further found that CT-N provides its programming to each municipality in Connecticut on cable television, and also provides access to its programming on its website, which is hosted on the State of Connecticut website.  It is found that such programming consists of legislative, executive and judicial meetings, hearings, and events.  It is found that, while CT-N also broadcasts other events, such as lectures and symposiums for academic institutions and local chambers of commerce, more than 75% of its programming relates to Connecticut government.   

 

            15.  The Commission notes that, previously, when considering local public access non-profit corporations, it has found that the provision of public, educational and municipal governmental television access is not a governmental function.  See  Docket # FIC 2008-031: Kevin Brookman v. Board of Directors, Hartford Public Access Television (November 12, 2008); Docket # FIC 1996-001; Iris David v. Michael Szarmach, President, North Haven Community Television, Inc., Louden Page, Frank Jablonski, Joyce Suleski, Walter Mann, Dan Morris, Richard Vaughan, Ubert Smith, Nancy Pfeiffer, and Ray Pavkov as members of the Board of Directors, North Haven Community Television, Inc., and Board of Directors, North Haven Community Television (Nov. 13, 1996), affirmed, Iris David v. FOIC, 21 Conn. L. Rptr. 315 (1998);  Docket # FIC 1995-353; Iris David v. Michael Szarmach, President, North Haven Community Television, Inc., Louden Page, Frank Jablonski, Joyce Suleski, Walter Mann, Dan Morris, Richard Vaughan, Ubert Smith, Nancy Pfeiffer, and Ray Pavkov as members of the Board of Directors, North Haven Community Television, Inc., and Board of Directors, North Haven Community Television (Nov. 13, 1996).       

 

16.  However, it is found that CPAN’s focus is the fulfillment of the General Assembly’s objective to provide an open window on government for its citizens.  The Commission takes administrative notice that, in 2009, over thirty-five states provide access to the proceedings of their legislative, executive, and/or judicial branches either through cable television, the internet, or a combination of both means.  It is found that the provision by state governments of on-line and cable television access to the proceedings of state government is a recent phenomena with no historical antecedent.  However, the Commission finds that, in the twenty-first century, at least with respect to statewide government, the provision of access to government proceedings on cable television and the internet is a governmental function.  See  Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466, 474 (1998) (finding that the provision of services to victims of domestic violence likewise was a recent phenomena with no historical antecedent, but concluding that such provision had evolved into a governmental function).    

 

17.  With respect to the second criterion, it is found that the CPAN receives the vast majority of its funding from government.  Specifically, it is found that CPAN receives approximately fifteen to twenty thousand dollars ($15,000-20,000) per year in proceeds from the sales of DVDs.  It is further found that CPAN has a current contract with the Connecticut General Assembly in the amount of eleven million four hundred fifty-two thousand, five hundred dollars ($11,452,500.00) for a five year period, expiring on October 31, 2011.  It is found that such contract with the General Assembly accounts for the bulk of CPAN’s revenue source.   However, it is found that, since the state payments are consideration for services rendered, such payments cannot be viewed as governmental funding.   Envirotest Systems Inc. v. FOIC, 59 Conn. App. 753 (2000), cert. denied, 254 Conn. 951 (2000),  Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466, 475-76 (1998).    

 

            18.  It is found that CPAN does not receive a substantial level of government funding.   

 

            19.  With respect to the third criterion, it is found that CPAN files annual reports with the Secretary of State as a non-profit corporation.  It is also found that CPAN files annual reports with the Office of Legislative Management.  It is further found that the CPAN board of directors currently consists of twenty members, and that three members are Connecticut government officials: the Director of University Relations at the University of Connecticut, the Chancellor of Connecticut Community Technical Colleges, and the Assistant Vice Chancellor for Public Affairs of the Connecticut State University System.  It is found that there is no requirement that state officials maintain positions on the board.  It is further found that the other board members are associated with private educational institutions, businesses, news media, and local charities. 

 

            20.  It is found that, by design, members of the legislature or other public officials cannot dictate the programming choices of CPAN.  It is found that CPAN employees have e-mail accounts hosted on the Connecticut state system for the sake of convenience, but that such employees are not state employees who receive state salaries or enjoy state benefits.  Based on the facts and circumstances of this case, it is found that the respondent is not subject to substantial government involvement or regulation.  

 

            21.  With respect to the fourth criterion, it is found that Paul Giguere, who is currently the president and chief executive officer of CPAN, as well as member of the CPAN board of directors, had the idea to create CT-N, and pitched such idea to the Connecticut legislature, in order to determine if the state would pay for the services he envisioned.  It is found that, once assured of state interest and a revenue source, Mr. Giguere filed a certificate of incorporation for CPAN with the office of the Connecticut Secretary of the State in November of 1997.  It is found that CPAN was organized as a non-profit, non-stock 501(c)(3) corporation for general charitable, education, literary, and scientific purposes.   Based on the facts and circumstances of this case, it is found that CPAN was not created by government. 

 

            22.  It is concluded that, based on the totality of relevant criteria, the respondent is not the functional equivalent of a public agency within the meaning of §1-200(1)(B), G.S. 

 

            23.  At the hearing in this matter, the complainant also requested that the Commission  consider application of §1-218, G. S., in this case.   

 

24.  Section 1-218, G. S., provides:

 

Each contract in excess of two million five hundred thousand dollars between a public agency and a person for the performance of a governmental function shall (1) provide that the public agency is entitled to receive a copy of records and files related to the performance of the governmental function, and (2) indicate that such records and files are subject to the Freedom of Information Act and may be disclosed by the public agency pursuant to the Freedom of Information Act.  No request to inspect or copy such records or files shall be valid unless the request is made to the public agency in accordance with the Freedom of Information Act.  Any complaint by a person who is denied the right to inspect or copy such records or files shall be brought to the Freedom of Information Commission in accordance with the provisions of sections 1-205 and 1-206. 

 

            (Emphasis added).

 

25.  However, the Commission notes that such issue was not fairly raised in the complaint.  Moreover, §1-218, G. S., by its terms requires that a request for records under such provision is not valid unless made to the public agency which contracts out the governmental function.  The request in this matter was not made to such public agency.  

26.  It is concluded that the respondent is not subject to the jurisdiction of the Commission. 

 

            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 special meeting of April 8, 2009.

 

 

________________________________

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:

Edward A. Peruta

38 Parish Road

Rocky Hill, CT 06067

           

Connecticut Public Affairs

Network, Inc.

c/o Katherine A. Scanlon, Esq.

Pullman & Comley, LLC

90 State House Square

Hartford, CT 06103

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-300FD/paj/4/16/2009