557 A.2d 568
(7161)Appellate Court of Connecticut
DUPONT. C.J., DALY and JACOBSON, Js.
The plaintiffs appealed to the trial court from the decision of the defendant freedom of information commission determining that a private law firm acting in the capacity of a town’s bond counsel is not a public agency within the meaning of the statutory (1-18a [a]) definition of that term. The trial court dismissed the appeal, and the plaintiffs appealed to this court. Held; that the trial court did not err in determining that the commission’s decision was supported by the evidence; because bond counsel do not operate under direct, pervasive or continuous governmental regulation, they do not constitute the functional equivalent of a public agency.
Argued March 2, 1989
Decision released May 2, 1989
Appeal by the plaintiffs from a decision by the named defendant denying their request for certain information, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford and tried to the court, Hale, J.; judgment dismissing the appeal, from which the plaintiffs appealed to this court. No error.
Mary Katz Moule, pro se, with whom, on the brief, was Herbert C. Hallas, pro se, the appellants (plaintiffs).
Constance L. Chambers, for the appellee (named defendant).
Timothy S. Fisher, with whom, on the brief, was Lori R. Wilson, for the appellee (defendant Robinson Cole).
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DALY, J.
The plaintiffs, Herbert C. Hallas and Mary Katz Moule, appeal from the judgment of the trial court dismissing their appeal from a final ruling of the defendant freedom of information commission (FOIC). The sole question for our review is whether the trial court erred in concluding that the FOIC acted legally in determining that the defendant Robinson and Cole, in its capacity as bond counsel for the town of Windsor, is not a “public agency” within the meaning of General Statutes 1-18a (a).[1] We find no error.
The trial court found the following facts. The plaintiffs maintain law offices in the town of Simsbury. The defendant Robinson and Cole is a law firm located in the city of Hartford, and has served as bond counsel for the town of Windsor since 1967. The plaintiffs, by way of a letter dated February 12, 1985, requested Robinson and Cole to make available for their inspection specific public records relating to bonds and notes issued by the town of Windsor from 1966 to 1983 and kept on file with the firm. Robinson and Cole refused to comply with the plaintiffs’ request on the grounds that, (1) certain documents were protected from disclosure because of the attorney-client privilege, (2) the firm was not the proper place to make their request, and (3) the documents were not public records. The plaintiffs appealed to the FOIC.
The plaintiffs maintained that Robinson and Cole, in its capacity as bond counsel, was a “public agency”
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created by government under General Statutes 7-373.[2] On May 17, 1985, a hearing was held before the FOIC hearing officer on the stipulated issue of whether Robinson and Cole, acting in the capacity of bond counsel for the town of Windsor, was a public agency and therefore subject to the jurisdiction of the FOIC. On July 25, 1985, the hearing officer issued findings of fact and recommended that the complaint be dismissed because the law firm was not a public agency within the meaning of General Statutes 1-18a (a). Both parties argued the matter before the FOIC on October 23, 1985, and the FOIC ultimately accepted the report of the hearing officer and dismissed the complaint. The plaintiffs then appealed to the Superior Court pursuant to General Statutes 4-183. The trial court determined that Robinson and Cole was not a public agency or the functional equivalent thereof as determined by the criteria set forth in Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266
(1980), and sustained the action of the FOIC. This appeal ensued.
General Statutes 4-183 (g) sets forth the scope of judicial review of the FOIC’s decision. Our, review of the trial court’s decision sustaining the action of the
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commission is limited to a determination of whether “the agency acted illegally, arbitrarily or in abuse of its discretion and whether its decision was supported by the evidence.” Board of Trustees v. Freedom of Information Commission, supra, 548-49; see also Billings v. Commission on Human Rights Opportunities, 18 Conn. App. 241, 243-44, 557 A.2d 147 (1989).
The Freedom of Information Act (FOIA); General Statutes 1-7 through 1-21k; provides for disclosure to the public of the public records of public agencies. General Statutes 1-19 (a). General Statutes 1-18a (a) defines “public agency” as, inter alia, any official of any town.
In Board of Trustees v. Freedom of Information Commission, supra, our Supreme Court addressed the question whether Woodstock Academy, a school established by special corporate charter for the purpose of providing educational services for the children of the town of Woodstock and its vicinity, was a public agency within the meaning of 1-18a (a). In holding that the institution was a “functional equivalent” of a public agency for the purpose of disclosure, the court adopted the test employed by the federal courts for making such a determination. The “functional equivalent” test is comprised of four criteria: (1) whether the entity performs a governmental function; (2) the level of governmental funding; (3) the extent of governmental involvement or regulation; and (4) whether the entity was created by the government. Board of Trustees v. Freedom of Information Commission, supra, 554. The court concluded that Woodstock Academy met all four criteria and thus, was the functional equivalent of a public agency for the purposes of FOIA disclosure.
“A case by case application of the factors . . . is best suited to ensure that the general rule of disclosure underlying this state’s FOIA is not undermined
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by nominal appellations which obscure functional realities.” Id., 555-56. Accordingly, we turn to an application of the functional equivalence test to the facts of this case in order to determine whether the criteria have been met. Unless all four factors are present, the agency does not meet the test and cannot be considered a public agency. Compare Public Citizen Health Research Group v. Department of Health, Education, Welfare, 449 F. Sup. 937, 941 (D.D.C. 1978) (professional standards review organization meets the functional equivalence test because it is financed by the United States, is a creature of statute, performs an executive, i.e., decision-making function and operates under direct, pervasive, continuous regulatory control) with Forsham v. Harris, 445 U.S. 169, 170-80, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) (federal funding without substantial degree of federal supervision insufficient to make federal grantee fall within federal FOIA).
We first examine the extent of government regulation of bond counsel. The plaintiffs and the defendant Robinson and Cole agree that the law firm is regulated both by the rules of practice for attorneys in this state; General Statutes 51-80 through 51-94; and the federal fraud and disclosure provisions for the sale of securities under 17 of the Securities Act of 1933. 15 U.S.C. § 77q. The plaintiffs argue, however, that these statutory provisions constitute the high level of government regulation necessary to meet the third facet of the functional equivalence test. We agree with the trial court that the regulation prong of the test does not pertain to the general regulation of a profession but rather applies to specific government regulation of the function of the agency. General Statutes 7-373
is the only section in chapter 109 that mentions bond counsel. That statute requires, inter alia, that any town issuing bonds designate a bank or trust company to certify the issue.
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In addition, the certification must state the name of the attorney who rendered the opinion approving the legality of the issue.
The function of bond counsel is to provide an expert and objective legal opinion with respect to the validity of bonds to be used by prospective investors. See “The Function and Professional Responsibilities of Bond Counsel,” 16 Urban Lawyer 3, 489, 491 (1984). We conclude that 7-373 does not regulate the function of bond counsel. The mere mention of bond counsel in the statute does not rise to the level of government regulation found to satisfy the third facet of the test in either Board of Trustees v. Freedom of Information Commission, supra, or Public Citizen Health Research Group v. Department of Health, Education, Welfare, supra. Because bond counsel do not operate under direct, pervasive or continuous regulatory control, they do not constitute the functional equivalent of a public agency.[3] Thus, we conclude that the FOIC decision that Robinson and Cole, in its capacity as bond counsel for the town of Windsor, was not a public agency is amply supported by the evidence.
There is no error.
In this opinion the other judges concurred.
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