Attorney General's Opinion
Attorney General, Richard Blumenthal
February 2, 1995
Kevin P. Johnston
Robert G. Jaekle
Auditors of Public Accounts
210 Capitol Avenue
Hartford, Connecticut 06106-1559
Dear Mr. Johnston and Mr. Jaekle:
You have requested an opinion regarding the applicability of the Freedom of Information Act ["FOIA"], Conn. Gen. Stat. §1-7 et seq., to the Connecticut Student Loan Foundation ["CSLF"]. Specifically, the issue you raised is whether the CSLF is a public agency subject to the public records and meeting requirements of the FOIA.1 Our conclusion, after reviewing the applicable statutory and judicial authority, is that the CSLF is the functional equivalent of a public agency for the purpose of the FOIA and, therefore, subject to its provisions.
The FOIA requires that "[e]xcept as otherwise provided by any federal law or state statute all records maintained or kept on file by any public agency ... shall be public records and every person shall have the right to inspect such records ... or receive a copy of such records...." Conn. Gen. Stat. §1-19(a). The statute further provides that "[t]he meetings of all public agencies, except executive sessions ..., shall be open to the public." Conn. Gen. Stat. §1-21(a).
A public agency subject to the disclosure requirements of the FOIA includes "any department, institution, bureau, board, commission, authority or official of the state ..., including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official...." Conn. Gen. Stat. §1-18a(a). That definition has been held to encompass an entity that constitutes the functional equivalent of a public agency. Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 760 (1991), citing Board of Trustees of Woodstock Academy v. Freedom of Information Commission, 181 Conn. 544, 554-55 (1980).
Our Supreme Court has set forth the following criteria to determine whether an entity is the functional equivalent of a public agency: "(1) whether the entity performs a governmental function; (2) the level of governmental funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government." Id. These factors are applied on a case by case basis "to ensure that the general rule of disclosure underlying this state's FOIA is not undermined by nominal appellations which obscure functional realities." Id., citing Woodstock Academy, 181 Conn. at 554-56. "All relevant facts are to be considered cumulatively, with no single factor being essential or conclusive." Id.
In the leading case on this issue, the Supreme Court held that Woodstock Academy was a public agency within the meaning of the FOIA. Woodstock Academy, 181 Conn. at 553-555. The court applied the four-part "functional equivalent" test developed by the federal courts and found that the academy (1) performed a governmental function in operating a school for the inhabitants of the town of Woodstock and the vicinity, (2) received government funds in the form of tuition payments received by the boards of education of the local towns, (3) had its operations regulated by the state board of education and (4) was an entity created by statute to operate the academy. Id. The court so found despite the facts that Woodstock Academy is a private, non-stock corporation; receives contributions from a private endowment fund toward the annual maintenance of the school; and has all academy property and affairs managed and controlled by a privately elected board of trustees. Id. at 548, 549. In reaching its conclusion, the court noted that the FOIA's policy of liberal access to public records would necessarily be thwarted if 'public agencies' were given a narrow construction." Id. at 551.
Like Woodstock Academy, the CSLF meets each of the criteria of a public agency equivalent set forth by the Supreme Court. See id. at 554-56. The general statutes created the CSLF, set forth its governmental purpose, mandate its public funding, and regulate its authority. Accordingly, the CSLF is bound by the provisions of the FOIA. See Id.
The CSLF is "a nonprofit corporation," created by statute and charged with the purpose of "improv[ing] educational opportunity." Conn. Gen. Stat. §10a-201. The CSLF carries out this purpose by guaranteeing and receiving loans, lending funds to persons needing assistance in meeting post secondary education expenses, and providing appropriate administrative services. Conn. Gen. Stat. §10a-201. The CSLF performs a governmental function in carrying out this purpose sufficient to meet the first prong of the functional equivalency test.
Although the CSLF may accept contributions from corporations, associations and/or individuals, Conn. Gen. Stat. §10a-204(b) and §10a-208, its primary funding is governmental. See Conn. Gen. Stat. §§10a-204, 10a-213-215. Its loans are funded through state appropriations, Conn. Gen. Stat. §10a-204(b), and the issuance of state bonds. Conn. Gen. Stat. §§10a-213-10a-215. The state guarantees other payments. Conn. Gen. Stat. §10a-204.
The CSLF also has significant governmental involvement. It is specifically regulated by both state and federal statutes, see generally 20 U.S.C. §§1071-1087-2 and Conn. Gen. Stat. §§10a-201-215; its board of directors must include six members of the executive and legislative branches of government, Conn. Gen. Stat. §10a-203; and the board's powers, rules, and regulations are limited by federal statute. Conn. Gen. Stat. §§10a-204(a), 10a-204(f). Moreover, interest rates and loan terms are set by federal statutes, Conn. Gen. Stat. §§10a-205 and 206, and income limits are set by the state. Conn. Gen. Stat. §10a-204.
In conclusion, because the CSLF performs a government function, receives government funding, is regulated by the federal and state government, and was created by the legislature, it is an entity bound by the requirements of the FOIA, including the provisions controlling public records and meetings. This opinion, of course, should not be construed as subjecting the CSLF to disclosures beyond those required by the FOIA or as precluding the CSLF from claiming exemptions available under the FOIA or otherwise provided by any federal law or state statute. See, e.g., Conn. Gen. Stat. §1-19(b)(exempt records) and 20 U.S.C. §1099 (exemption from state disclosure requirements for loans made, insured, or guaranteed pursuant to Title IV of the Higher Education Act of 1965).
Very truly yours,
Linsley J. Barbato
Assistant Attorney General
1 This opinion is limited to the issue of whether the CSLF is the functional equivalent of a public agency for the purposes of the FOIA only. It expresses no opinion as to whether the CSLF could be considered a public agency for any other purpose.