Greenwich Emergency Medical Service, Inc. v. Freedom of Information Commission
| Decision Date | 18 June 2019 |
| Docket Number | HHBCV176039788S |
| Court | Connecticut Superior Court |
| Parties | GREENWICH EMERGENCY MEDICAL SERVICE, INC. et al. v. FREEDOM OF INFORMATION COMMISSION et al. |
UNPUBLISHED OPINION
The plaintiffs, Greenwich Emergency Medical Service, Inc. and its executive director (collectively, GEMS), appeal from the decision of the defendant Freedom of Information Commission (commission), which held that GEMS, a private nonprofit corporation, is the functional equivalent of a public agency and subject to the Freedom of Information Act (act). GEMS contends that the commission misapplied the four-factor functional equivalence test articulated in Board of Trustees v. Freedom of Information Commission, 181 Conn 544, 436 A.2d 266 (1980), in light of subsequent decisions explaining the test. GEMS also argues that the commission’s decision was procedurally defective because (1) the hearing officer took administrative notice of facts not in evidence (2) the hearing officer’s report was not signed by the officer who conducted the hearing, and (3) the commission permitted the complainant to testify at the commission’s meeting without affording an opportunity for cross examination. The commission argues that its decision is consistent with the law and supported by substantial evidence, and that any procedural errors were harmless. The court disagrees with the commission’s findings on the first factor in the functional equivalence test, but concludes nevertheless, that the commission properly determined that GEMS is the functional equivalent of a public agency based on the remaining factors. The court further concludes that the alleged procedural irregularities did not materially prejudice GEMS. For the reasons discussed herein, the appeal is dismissed.
On December 8, 2016, Joseph Soto requested copies of GEMS’ records pertaining to its termination of his employment. He asserted that he was requesting the records pursuant to the act. On December 19, 2016, Soto filed a complaint with the commission, alleging that GEMS had violated the act by failing to respond to his request. A contested case hearing was held on March 24, 2017. Lisa Siegel, a commission staff attorney, served as hearing officer. All parties appeared stipulated to certain facts, and presented testimony, exhibits, and argument. GEMS argued that it was not subject to the act because it was neither a public agency nor the functional equivalent of a public agency.
On June 30, 2017, the commission issued the report of the hearing officer as its proposed final decision. The report was signed by Commissioner Matthew Streeter as the hearing officer, although Streeter had not, in fact, been present at the hearing. The commission considered the report at its meeting of August 9, 2017, at which Siegel was identified as the hearing officer who had heard the case. Siegel was present at the commission meeting and responded to commissioners’ questions about the proposed decision. GEMS’ counsel and the complainant presented argument, and the commission thereafter voted unanimously to adopt the hearing officer’s report as the commission’s final decision.[1] This appeal followed.
General Statutes § 1-200(1) provides in relevant part: ‘Public agency’ or ‘agency’ means: ... (B) [a]ny person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law ..." The commission took administrative notice of two 1988 commission decisions in which GEMS had been found to be the functional equivalent of a public agency and a 1989 commission decision in which GEMS’ status as the functional equivalent of a public agency was assumed without dispute.[2] The commission also took administrative notice of several other decisions in which it had held that emergency medical service providers similar to GEMS are the functional equivalents of public agencies.[3]
In Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 554, the Supreme Court identified the following factors to be considered in determining whether a private entity is the functional equivalent of a public agency for purposes of the act: "(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 the government." Id. The contours of the test have been further developed in subsequent decisions. "All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive." (Internal quotation marks omitted.) Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 761, 591 A.2d 395 (1991).
GEMS disputed its status as the functional equivalent of a public agency based on changes in its arrangement with the town since the commission’s 1988 decisions and on developments in the law, including the decisions in Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn.App. 466, 704 A.2d 827 (1998), and Envirotest Systems Corp. v. Freedom of Information Commission, 59 Conn.App. 753, 757 A.2d 1202, cert. denied, 254 Conn. 951, 762 A.2d 900 (2000). The commission disagreed.
Considering the first factor in the functional equivalence test, whether a private entity performs a governmental function, the commission found that GEMS was created by the town to provide state-of-the-art emergency medical services for the town; that before GEMS was created, the town provided emergency medical services through its police and fire departments and volunteer ambulance services; that GEMS is now the town’s sole provider of emergency medical services; and that the town’s first selectman had issued a proclamation in 2009, declaring that GEMS performs "a vital public service."[4] Based on those facts, it found that "GEMS performs a governmental function on behalf of the Town of Greenwich."
Addressing the second functional equivalence factor, the level of government funding, the commission found that GEMS received $4.5 million from the town’s general fund in 2015-2016, $4.6 million in 2016-2017, and $4.7 million in 2017-2018. The commission described in detail the manner in which GEMS obtains funding from the town.[5]
The commission rejected GEMS’ argument that its funding from the town is merely a fee for services provided to the town. It observed that the contract between GEMS and the town does not specify a fee for GEMS’ services. Instead, it requires GEMS to make an annual budget request to the Board of Estimate and Taxation (BET) and to the Representative Town Meeting (RTM). The budget request "is subject to review and approval by the [Town] during the Town budget process, which shall be conclusive and final as to the fixed payment for the ensuing fiscal year." Moreover, if the funding allocated by the town is insufficient, the contract requires GEMS to "use best efforts to continue to provide the services required." Considering the terms of the contract between GEMS and the town, the commission concluded that the town’s funding of GEMS was not a fee for service but an allotment of funds by the town. The commission concluded that "the level of government funding of GEMS is substantial."
Concerning the third factor, the extent of government involvement or regulation, the commission took administrative notice of General Statutes § § 19a-175 through 19a-195, which provide for the state regulation of emergency medical services, including "licensing, certification, and public hearings; financial requirements and insurance; requirements for training, equipment, and personnel; sanctions for violations; inspection and registration of ambulances; communications systems; public education; volunteer personnel and paramedics; and regional councils." The commission found that GEMS is regulated by these statutes and by regulations adopted by the state Department of Health and the Office of Emergency Medical Services pursuant to those statutes. It also found that the town regulates GEMS’ operations by contract.[6] It concluded that the "government involvement with or regulation of GEMS is substantial."
Concerning the fourth factor, whether the entity was created by the government, the commission found that GEMS was created by government, as set forth in paragraph 10 of its final decision.
Taking all the factors into consideration, the commission found that GEMS is subject to the act because it is the functional equivalent of a public agency. It also found that GEMS violated the act by failing to provide requested records promptly. It ordered GEMS to provide the complainant, without charge, copies of any requested records he had not yet received and to comply henceforth with the requirements of General Statutes § § 1-210(a) and 1-212(a).
This appeal is reviewed pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA).[7] Under the UAPA, "it is [not] the function of ... this court to retry the case or to substitute its judgment for that of the administrative agency ... Even for conclusions of law, the court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281, 77 A.3d 121 (2013).
Although the courts ordinarily afford deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s...
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