Final Decision FIC2012-336
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In the Matter of a Complaint by |
FINAL DECISION | |
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Andy Thibault and the New Haven Register,
Complainants |
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against
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Docket #FIC 2012-336 | |
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Neil O’Leary, Mayor, City of Waterbury;
and City of Waterbury, Respondents |
May 8, 2013 |
The above-captioned matter was heard as a contested case on April 2, 2013, at which time the complainants 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. The respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that on June 12, 2012, the complainants sent a letter to the respondents indicating his request to inspect “any and all documents … regarding John G. Rowland (“Rowland”) and his city-funded economic development job via the Greater Waterbury Chamber of Commerce.”
3. It is found that the respondents acknowledged the complainants’ request on June 13, 2012.
4. It is found that on June 19, 2012, June 29, 2012, and July 3, 2012, the respondents provid ed access to responsive records maintained in city offices.
5. By letter filed June 22, 2012, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with all of the records he requested. The complainant requested the imposition of civil penalties.
6. Section 1-200(5), G.S., provides:
Public records or files means any recorded data or information
relating to the conduct of the public's business prepared, owned,
used, received or retained by a public agency, …whether such data
or information be handwritten, typed, tape-recorded, printed,
photostated, photographed or recorded by any other method.
relating to the conduct of the public's business prepared, owned,
used, received or retained by a public agency, …whether such data
or information be handwritten, typed, tape-recorded, printed,
photostated, photographed or recorded by any other method.
7. Section 1-210(a), G.S., provides, in relevant part:
Except as otherwise provided by any federal law or state statute, all
records maintained or kept on file by any public agency, whether
or not such records are required by any law or by any rule or
regulation, shall be public records and every person shall have the
right to (1) inspect such records promptly during regular office or
business hours… or (3) receive a copy of such records in
accordance with section 1-212.
records maintained or kept on file by any public agency, whether
or not such records are required by any law or by any rule or
regulation, shall be public records and every person shall have the
right to (1) inspect such records promptly during regular office or
business hours… or (3) receive a copy of such records in
accordance with section 1-212.
8. Section 1-212(a), G.S., provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
9. It is concluded that the records requested by the complainants and maintained by the respondents are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
10. It is found that the Waterbury Regional Chamber of Commerce hired Rowland as a consultant in 2008 to promote the economic development of Waterbury. It is found that Rowland was a consultant until 2012.
11. It is found that the Board of Aldermen of the respondent City of Waterbury paid the Chamber $100,000 each year to fund Rowland’s position, except for the final year, when the payment was halved because Rowland in 2010 began a second full-time job hosting an afternoon radio show.
12. It is found that when the respondent mayor took office in 2012, he received permission from the Board of Aldermen to bring the position of economic development coordinator in-house, and the Board of Aldermen transferred $100,000 to the mayor’s office to fund the position.
13. The complainants contend that because public money funded Rowland’s position with the Chamber of Commerce, the Chamber’s records concerning his employment belong to the respondent City of Waterbury and the public has a right of access to such records. The complainants claim that the Chamber of Commerce is a public agency with respect to Rowland’s employment; alternatively, the complainants contend that the Chamber’s records pertaining to Rowland’s employment are records that the respondents have a right to receive.
14. Section 1-200(1), G.S., defines “public agency” as:
(A) 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 …; (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.
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 …; (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.
15. Section 32-111, G.S., defines “implementing agency,” as:
one of the following agencies designated by a municipality ...:(1)
An 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 and approved by the
commissioner[.]
An 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 and approved by the
commissioner[.]
16. It is found that the Chamber of Commerce is a private organization. The complainants do not contend that the Chamber is the functional equivalent of a public agency, and it is so found. It is also found that the Chamber of Commerce is not an implementing agency within the meaning of §32-222, G.S.
17. It is concluded that the Waterbury Regional Chamber of Commerce is not a public agency within the meaning of 1-200(1)(A), (B), or (C), G.S.
18. Section 1-200(5), G.S., includes in its definition of public records those records that “a public agency is entitled to receive a copy by law or contract under section 1-218…”
19. Section 1-218, G.S., provides in relevant part:
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.
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.
20. It is found that no statute entitles the respondents to receive a copy of the Chamber of Commerce’s records concerning Rowland’s employment, and that any contract pertaining to Rowland’s work on behalf of the respondents was less than $2.5 million.
21. It is concluded, therefore, that the Chamber of Commerce’s records pertaining to Rowland’s consulting work are not public records, despite the fact that the position was funded by taxpayer dollars.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 8, 2013.
__________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
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:
Andy Thibault and the New Haven Register
P.O. Box 1415
Litchfield, CT 06759
P.O. Box 1415
Litchfield, CT 06759
Neil O’Leary, Mayor, City of
Waterbury; and City of Waterbury
c/o Kevin J. Daly, Esq.
Office of the Corporation Counsel
235 Grand Street
3rd Floor
Waterbury, CT 06702
Waterbury; and City of Waterbury
c/o Kevin J. Daly, Esq.
Office of the Corporation Counsel
235 Grand Street
3rd Floor
Waterbury, CT 06702
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2012-336/FD/cac/5/8/2013