FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Iris David,

Complainant(s)

against Docket #FIC 1995-353

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, Inc.,

Respondent(s) November 13, 1996

The above-captioned matter was heard as a contested case on May 15 and June 19, 1996, at which time the complainant(s) and respondent(s) appeared and presented testimony, exhibits and argument on the complaint. The case-caption for the above-captioned matter has been amended to properly identify the respondents in this case. Additionally, the above-captioned matter was consolidated for hearing with 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, Inc.

By petition dated April 9, 1996, the State of Connecticut Office of Consumer Counsel (“OCC”) requested that the OCC be granted intervenor status in Docket #s FIC 1995-353 and 1996-001. The OCC was given notice of each of the hearings held on these matters and failed to appear at both hearings. The OCC’s petition for intervenor status is hereby denied.

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

1. By letter of complaint dated December 12, 1995, and filed with the Commission on December 15, 1995, the complainant alleged that she was not permitted to videotape or remain in attendance at the respondent’s November 14, 1995 meeting. The complainant requested that the Commission declare all action taken at the respondents’ November meeting null and void, and impose the maximum civil penalty against each of the named respondents.

2. In her December complaint the complainant also requested that the Commission, inter alia, order the respondent to “provide access to records, and copies of minutes [and] agendas of June, September and November meetings.”

3. By pleadings filed with the Commission on May 6, 1996, the respondents asked the Commission to impose civil penalties against the complainant in each of the above-referenced contested cases, as permitted by §1-21i(b)(2), G.S., for filing frivolous complaints since the respondents are not subject to the provisions of Connecticut’s Freedom of Information (“FOI”) Act.

4. The test for determining whether an entity is a public agency within the meaning of §1-18a(a), G.S., is set forth in Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544 (1980).

5. The four criteria used to determine whether an entity is a public agency within the meaning of §1-18a(a), G.S., (“Woodstock criteria”) are:

(a) whether the entity performs a governmental function;
(b) the level of government funding;
(c) the extent of government involvement or regulation: and
(d) whether the entity was created by government.

6. The Supreme Court in Connecticut Humane Society v. FOI Commission, 218 Conn. 757, 761 (1991), advocated a case by case application of the Woodstock criteria noted above, and established that all four of the foregoing Woodstock criteria are not necessary for a finding of “functional equivalence”. Rather “[a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.”

7. It is found that North Haven Community Television, Incorporated (“NHCTV”), is a community-based, non-profit, non-stock, organization that operates with a staff of volunteers and the respondent board of directors.

8. It is found that North Haven Community Television, Incorporated (“NHCTV”), is the public, educational and governmental (“PEG”) television access provider for the town of North Haven (“town”). Specifically, NHCTV runs the educational and governmental channels


for the town and airs educational programming, political forums, speeches and other town related affairs for viewing by town residents.

9. It is found that airing local cable programming is not a traditional governmental function.

10. It is found that the town donates approximately twenty-five hundred dollars ($2,500.00) each year to NHCTV which equals roughly eight percent (8%) of NHCTV’s overall operating budget.

11. It is found that the remainder of NHCTV’s budget of approximately twenty thousand dollars ($20,000.00) is received from privately owned and operated, Tele Communications, Incorporated (“TCI”).

12. It is found that as part of its franchise agreement with the state’s Department of Public Utility Control (“DPUC”), TCI sets aside a specific amount of money for the public access providers in its respective franchise towns. These funds are then disbursed to NHCTV and other public access providers by and through the Cable Advisory Counsel (“CAC”).

13. It is found that notwithstanding the fact that both the DPUC and the CAC are public agencies within the meaning of §1-18a(a), G.S., the primary funding source for NHCTV is TCI.

14. It is concluded that NHCTV does not presently receive substantial government funding.

15. It is found that NHCTV is regulated by the DPUC as set forth in §16-331, et seq., G.S.

16. It is found that as a result of its status as a PEG provider, NHCTV must submit annual reports to the DPUC, and must comply with the criteria established by the DPUC for PEG access providers.

17. It is found, however, that the DPUC regulations do not impose extensive, or day to day supervision upon NHCTV or any other public access providers.

18. It is concluded that presently the respondents are not subject to substantial government involvement or regulation.

19. It is found that NHCTV was created as a private nonprofit organization by a group of town residents with an interest in community-based television programming, and incorporated as such in 1989.

20. It is found that NHCTV, has remained a community-based, nonprofit, non-stock, organization that operates with an unpaid staff of volunteers and respondent board members.

21. It is found that the respondent board members are elected by its membership, and membership status is available to all town residents.

22. It is concluded that neither NHCTV, nor the respondent board were created by the government.

23. It is further concluded, based upon the totality of all relevant factors, that the respondents are not public agencies within the meaning of §1-18a(a), G.S., and therefore the respondents are not subject to the jurisdiction of this Commission.

24. In its discretion the Commission declines to grant the respondents’ requests for the imposition of civil penalties against the complainant.

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 for lack of subject matter jurisdiction.

Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 1996.

__________________________

Elizabeth A. Leifert

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:

Iris David

6 Centerbrook Road

North Haven, CT 06473

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, Inc.

c/o Tracy L Carlson, Esq.

110 Washington Avenue

North Haven, CT 06473

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

FIC 1995-353/FD/eal/112296