DocketNumber: AC 19668
Citation Numbers: 59 Conn. App. 753
Judges: Landau
Filed Date: 9/5/2000
Status: Precedential
Modified Date: 9/8/2022
Opinion
The defendant freedom of information commission (commission)
The record discloses the following factual and procedural history. The plaintiff received a letter in April, 1997, from Andrew J. Simso III, requesting copies of all records or files related to any request, requirement or advisement of changes to the state vehicle inspection report.
The plaintiff appealed to the trial court, claiming that the commission incorrectly concluded that it was the functional equivalent of a public agency.
The following facts were found by the commission and are relevant to our resolution of this claim. The plaintiff was not created by government; rather, it is a for profit corporation that administers environmental programs nationwide. The plaintiff contracts with the department of motor vehicles (department) to administer the state’s automobile emissions program
“The interpretation of statutes presents a question of law. . . . Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... it is for the courts, and not for administrative agencies, to expound and apply governing principles of law. . . . Because the commission’s determination of whether the plaintiff is a public agency required an interpretation of § l-18a (a) [now § 1-200 (1)], that determination was a matter of law.” (Citations omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466, 469-71, 704 A.2d 827 (1998).
“Our Supreme Court was first asked to construe the term ‘public agency’ in Board of Trustees v. Freedom of Information Commission, [181 Conn. 544, 436 A.2d 266 (1980)]. In Board of Trustees, the court adopted the ‘functional equivalent’ test of the federal courts to
The first prong of the functional equivalent test is whether the entity performs a governmental function. In Domestic Violence Services of Greater New Haven, Inc., the plaintiff provided services to victims of domestic violence pursuant to General Statutes § 46b-38c (f), which directs local family violence units to enter into contracts with private victim service providers such as the plaintiff in that case. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 471-72. The court concluded that although the provision of services to victims of domestic violence was a governmental function, the plaintiff did so according to contract. Id., 474-75. “Performing a government service pursuant to contract does not make an entity a public agency subject to the act. . . . The 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.” (Citations omitted; internal quotation marks omitted.) Id.
Similarly, in this case the court found that General Statutes § 14-164c was intended to make automobile emissions inspections a governmental function. While
The second prong of the functional equivalent test is concerned with the level of government funding. The commission took “administrative notice” of the Connecticut budget for 1997-1998 and found that the cost of the emissions inspection program was $25 million, the vast majority of which was paid to the plaintiff. The commission concluded, therefore, that the level of government funding was substantial. The court found that the amount of money received by the plaintiff reflects the amount of business that is done pursuant to the contract and not an allotment of government funds.
As previously discussed, the plaintiff in Domestic Violence Services of Greater New Haven, Inc., provided services to victims of domestic violence pursuant to a contract with the state. This court concluded that “[t]he amount of government money the plaintiff receives reflects the amount of business it does with government. See Lombardo v. Handler, 397 F. Sup. 792, 796 (D.D.C. 1975), aff'd, 546 F.2d 1043 (D.C. Cir. 1976), cert.
In this case, as in Domestic Violence Services of Greater New Haven, Inc., the payment made to the plaintiff was consideration for the services it provided pursuant to a contract for the administration of the emissions inspection program. The court correctly concluded that the second prong of the functional equivalent test was not met.
The third prong of the functional equivalent test evaluates the extent of government involvement or regulation. The commission concluded that because the
In Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 296, 557 A.2d 568, cert. denied, 212 Conn. 804, 561 A.2d 945 (1989), this court held that to satisfy the regulation prong of the test, the entity must “operate under direct, pervasive or continuous regulatory control . . . .” Also critical in the determination of whether an entity is a governmental agency is the amount of control the government exercises over the entity’s detailed physical performance. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 478. In Forsham v. Harris, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980), the United States Supreme Court addressed whether the acts of a private entity that received grants of federal funds became governmental acts subjecting that entity to the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552. The court held that “absent extensive, detailed, and virtually day-today supervision,” the entity was not a “federal instrumentality or an FOIA agency.” Id., 180.
The record does not indicate that the department exerts direct, pervasive or continuous regulatory control over the plaintiffs business. The plaintiff is a private corporation doing business nationwide, and its employees are not government employees. The department maintains offices at many of the defendant’s emissions stations and conducts periodic site visits to evaluate rather than control the plaintiffs activity. See Domestic
The parties agree that because the plaintiff was not created by government, the fourth prong of the functional equivalent test also is not met. Our review of the record leads us to conclude that the court properly determined that the plaintiff is not the functional equivalent of a public agency and that the court therefore correctly sustained the plaintiffs appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
The other defendant in this action is Andrew J. Simso III, whose written request to the plaintiff, Envirotest Systems Corporation, spawned the events that led to this appeal. Because only the commission has appealed from the judgment of the trial court, we refer in this opinion to the commission as the defendant.
General Statutes (Rev. to 1997) § l-18a (a), now § 1-200 (1), provides: “ ‘Public agency’ or ‘agency’ means any 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 in respect to its or their administrative functions.”
State of Connecticut vehicle inspection reports are generated by the department, of motor vehicles (department) and contain the results of vehicle emissions tests. The form was revised in March, 1993, deleting the portions that required repairs performed after failing the test to be done using manufacturer’s recommended procedures. Simso’s request referred to documents concerning that change.
General Statutes (Rev. to 1997) § 1-15 (a), now § 1-212 (a), provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. ...”
The plaintiffs administrative appeal was brought pursuant to General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”
General Statutes § 14-164c (e) directs the commissioner of motor vehicles to “enter into a negotiated inspection agreement or agreements . . . with an independent contractor or contractors, to provide for the leasing, construction, equipping, maintenance or operation of a system of official emissions inspection stations . . . .”
The court further noted that the administrative record before it disclosed that all money collected by the plaintiff for performing the state’s emissions testing is deposited into a state fund. The plaintiff then submits a bill to the state and is paid for every emissions test performed.
The commission argues that the allotment of funds is more closely related to the public financing of Woodstock Academy in Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 554-55, which was held to satisfy the second prong of the functional equivalent test. In that case, the town of Woodstock paid the entire tuition fees of those pupils who resided in the town and attended the academy. Id., 547. The per pupil allotment in Board of Trustees and the per automobile allotment in this case, according to the commission, are functionally the same. The court, in Board of Trustees, found illuminating that 95.32 percent of the academy’s operating expenses came from tuition payments received from the towns of Woodstock, Pomfret and Eastford. Id. The commission claims that since 100 percent of the defendant’s Connecticut revenues come from the government, it should be held to receive substantial government funding. We are not persuaded.
In Board of Trustees, Woodstock was operating under a state constitutional mandate that a free public education at the secondary school level be provided to all children residing in Connecticut. Id. There is no such mandate in General Statutes § 14-164c that the emissions program be free to the public.
The commission argues additionally that Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom, of Information Commission, 212 Conn. 100, 561 A.2d 429 (1989), allows this court to find the plaintiff to be the functional equivalent of a public agency for actions taken in the performance of its government services, but not those activities unrelated to government. We reject this argument. In Cos Cob Volunteer Fire Co. No. 1, Inc., unlike in this case, the volunteer fire department was found to be a public agency under General Statutes § l-18a (a). The court held that a statute that exempted “operational” meetings of volunteer fire departments from the act’s requirement that they be open to the public did not apply to the “nonoperational” portions of the meetings. Id., 105-106. We, however, have determined that the plaintiff here is not a public agency or its functional equivalent, nor is there a statute at issue such as the one in Cos Cob Volunteer Fire Co. No. 1, Inc.. Therefore we need not address the question of whether some of the plaintiff’s activities can be subject to the act.