If a state legislator sits on the board of a state-created nonprofit that is exempt from FOIA, does the legislator still have to hand over records about that role when the public asks?

Plain-English summary

In 2019 the Connecticut General Assembly created the Partnership for Connecticut, Inc., a public-private nonprofit funded with a mix of state and private money to support public education, social entrepreneurship, and economic development in under-resourced communities. The statute creating it (Public Act 19-117) made the four legislative leaders, including House Minority Leader Themis Klarides, ex officio members of the Partnership's 13-member board. The same act expressly said the corporation was not a public agency, was not performing a governmental function, and was not subject to FOIA.

Klarides asked AG William Tong what to do when constituents asked her for records about her board service. Tong's answer separated the entity from the officeholder: the corporation's FOIA exemption protected only the corporation. As a legislator, Klarides was a "public agency" in her own right under FOIA's definition, so records in her possession (emails, board materials, notes) about her board service stayed subject to FOIA. The General Assembly could have exempted the legislative members in the act and chose not to. Under the canon that courts read statutes as written and do not supply missing exemptions, neither could the AG.

The opinion is also a clean explanation of how Connecticut FOIA's "functional equivalent" doctrine works. Private corporations are usually outside FOIA, but when a corporate body is created, funded, and regulated by the State and performs a governmental function, courts have treated it as the functional equivalent of a public agency. The legislature wrote the FOIA exemption into PA 19-117 specifically to head that doctrine off; the practical cost was that the public records angle migrated to the legislators on the board.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Partnership for Connecticut wound down operations in 2020 after the Dalio Foundation withdrew. Anyone analyzing FOIA application to a current public-private board should look at the specific authorizing statute, not at this opinion's exact factual predicates.

Common questions

Q: What is the "functional equivalent" doctrine?
A: A line of Connecticut FOIA cases (starting with Board of Trustees of Woodstock Academy v. FOIC, 181 Conn. 544 (1980)) holding that a nominally private entity can be treated as a public agency for FOIA purposes if the State created, funded, and regulated it and it performs a governmental function. The doctrine prevents agencies from sidestepping FOIA by spinning off into private corporate form.

Q: Why did the legislature exempt the Partnership from FOIA?
A: The opinion says the express FOIA exemption in PA 19-117, § 183(c), was "presumably" written to head off the functional-equivalent doctrine. The Partnership was so clearly state-created and state-funded that, without the exemption, a court would likely have treated it as the functional equivalent of a public agency.

Q: Why are state legislators public agencies under FOIA?
A: Because Conn. Gen. Stat. § 1-200(1)(A) defines "public agency" to include any "executive, administrative or legislative office of the state" and "any . . . official of the state." The Freedom of Information Commission has applied that language to legislators since at least Declaratory Ruling #90.

Q: What records are covered?
A: Records in the legislator's possession that relate to her service on the board. Emails between the legislator and other board members, board minutes the legislator received, board materials she annotated, and similar documents fall within FOIA. The corporation's own records held only by the corporation are not in the legislator's possession and remain outside FOIA.

Q: Are there exemptions the legislator can still use?
A: Yes. FOIA's standard exemptions (attorney-client privilege, certain personnel records, preliminary drafts, and so on, listed in Conn. Gen. Stat. § 1-210(b)) apply normally. The opinion just confirms the threshold: the records are presumptively public unless an exemption fits.

Q: Did the AG consult the FOI Commission?
A: No. He explicitly noted he had not consulted FOIC and that FOIC could reach a different conclusion. He recommended the legislator consider seeking advice from FOIC directly. The opinion is his reasoned forecast of how the Commission or a court would likely rule.

Q: What about the corporation's open-meeting obligations?
A: The corporation itself is fully exempt, so FOIA's open-meeting and record-disclosure provisions do not apply to it. The exemption analyzed here is asymmetric: the corporation's papers are not public, but its public-official board members' papers about it are.

Background and statutory framework

Connecticut FOIA (Conn. Gen. Stat. §§ 1-200 et seq.) is one of the older and broader state public-records regimes in the country. The definition of "public agency" in § 1-200(1)(A) sweeps in essentially every level of state and local government, including individual legislators in their official capacity. The "functional equivalent" prong in § 1-200(1)(B) and § 1-200(4), as developed in Woodstock Academy and Domestic Violence Services of Greater New Haven, brings in private entities that look enough like government to be treated as public for disclosure purposes.

Public Act 19-117, §§ 183-189, set up the Partnership for Connecticut as a nonstock nonprofit corporation. Section 183(b) listed the corporation's purposes (public-education support, financial inclusion, economic development, philanthropic collaboration). Section 183(c) declared that the corporation was not a public agency, did not perform a governmental function, and was not subject to FOIA. Section 185 prescribed a 13-member board including the four top legislative leaders, the Governor, and others.

The AG's analysis turned on what the legislature could have done but did not. Other statutes (the AG cited Conn. Gen. Stat. § 51-44a(j) for the Judicial Selection Commission and § 36a-21(a) for banking-department records) make legislators or officials subject to confidentiality duties when serving on particular boards. PA 19-117 contained no such provision. Under McCullough v. Swan Engraving, 320 Conn. 299 (2016), courts (and AGs) cannot supply omissions in a statute by construction. The result was that the legislative members of the Partnership board carried their FOIA obligations with them onto the board.

Citations and references

Statutes:
- Conn. Gen. Stat. §§ 1-200 et seq. (Connecticut FOIA)
- Conn. Gen. Stat. § 1-200(1)(A), (B), (4)
- Conn. Gen. Stat. § 1-210(a)
- Public Act 19-117, §§ 183-189

Functional-equivalent doctrine cases:
- Board of Trustees of Woodstock Academy v. Freedom of Information Commission, 181 Conn. 544 (1980)
- Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn. App. 466 (1998)

FOIC rulings on legislators:
- Freedom of Information Commission, Declaratory Ruling #90
- Godbout v. Ayala and Hartley, FIC 2013-183 (FOIC Feb. 11, 2014)

Statutory-construction case:
- McCullough v. Swan Engraving, Inc., 320 Conn. 299 (2016)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2019/2019-005_partnership_for_connecticut_foia.pdf?rev=ad76b1a0360d4da78bf7cee6d13c9c9a

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Original opinion text

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

WILLIAM TONG
ATTORNEY GENERAL

Office of the Attorney General
State of Connecticut

(860) 808-5319

August 7, 2019

By Hand Delivery and Email
The Honorable Themis Klarides
House Minority Leader
Legislative Office Building

300 Capitol Avenue, Suite 4200
Hartford, CT 06106-1591

Dear Minority Leader Klarides:

You have asked for a formal opinion as to whether records in
your possession that are related to your service on the board of
directors of The Partnership for Connecticut, Inc., are subject to

disclosure under the Connecticut Freedom of Information Act, Conn.
Gen. Stat. §§ 1-200, et seq. (FOIA).

The Partnership for Connecticut, Inc., is a non-profit, non-stock
corporation created by Connecticut Public Act 19-117, §§ 183-189.
Using a mix of state and private funds, the corporation's purpose is to
strengthen public education in the state, support financial inclusion,
social entrepreneurship, and economic development in under-resourced
communities, promote upward mobility by connecting at risk high
school age youths and young adults to educational and career
opportunities, and expand collaboration between the state and
philanthropic entities in carrying out these goals. PA 19-117, § 183(b).
Section 185 of the Act states that the corporation's first thirteen-
member board of directors shall include the minority leader of the
House of Representatives, as well as the Governor, president pro
tempore of the Senate, the speaker of the House, and the minority
leader of the Senate. Therefore, as the minority leader of the state
House of Representatives, you are an ex officio member of the
corporation's board.

You note that as a state legislator, you are subject to FOIA,
which generally requires you to treat records in your possession as
public records subject to disclosure. The corporation, however, is

An Affirmative Action/Equal Opportunity Employer

The Honorable Themis Klarides
August 7, 2019
Page 2

exempted from FOIA pursuant to Public Act 19-117, § 183(c). Given
this situation, you question how you should respond to requests from
the public seeking disclosure of records related to your service on the
corporation's board of directors.

We conclude that if presented with the issue, the Connecticut
Freedom of Information Commission or a court would likely hold that
notwithstanding the corporation's exemption from FOIA, you remain
subject to FOIA in your role as the House minority leader and must
disclose records in your possession relating to your service on the

corporation's board of directors unless one of the statutory exemptions
to FOIA applies.

Discussion

The Connecticut Freedom of Information Act, Conn. Gen. Stat. §
1-200, et seq. (FOIA), provides in pertinent part that "[e]xcept 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 inspect and
copy them. Conn. Gen. Stat. § 1-210(a) (emphasis added). "Public
agency" is defined broadly to include "[a]ny executive, administrative
or legislative office of the state ...and any state or town agency, any
department, institution, bureau, board, commission, authority or
official of the state," among others. Conn. Gen. Stat. § 1-200(1)(A)
(emphasis added).

As a general rule, a private corporation is not a public agency
and therefore not subject to FOIA. But when a corporate entity is
created, funded, and regulated by the state and performs a
governmental function, a court may deem it the functional equivalent
of a public agency and therefore subject to FOIA. See, e.g., Board of
Trustees of Woodstock Academy v. Freedom of Information
Commission, 181 Conn. 544 (1980); Domestic Violence Services of
Greater New Haven, Inc. v. Freedom of Information Commission, 47
Conn. App. 466 (1998); Conn. Gen. Stat. §§ 1-200(1)(B), 1-200(4).
Presumably to avoid any such uncertainty with regard to the

The Honorable Themis Klarides
August 7, 2019
Page 3

Partnership for Connecticut, the General Assembly directed that "[t]he
corporation shall not be construed to be a... public agency, .. . or to
perform a governmental function." PA 19-117, § 183(c). Because it is
not a public agency, the Partnership for Connecticut is expressly
exempted from FOIA.

The fact that the corporate entity is exempted from FOIA does
not mean that you as an individual are not subject to FOIA. In serving
on the board of directors, you are serving in your capacity as minority
leader, not as a private citizen. Section 185(a)(1) of Public Act 19-117
expressly states that the board of directors shall include "[t]he
minority leader of the House of Representatives." PA 19-117, §
185(a)(1)(G). It is therefore specifically because of your current official
position that you are serving cn the board. As noted above, FOIA's
definition of "public agency" includes any "legislative office of the state"
and any "official of the state". Conn. Gen. Stat. § 1-200(1)(A). The
Freedom of Information Commission has consistently held that
because FOIA defines a "public agency" to include "[a]ny . . . legislative
office of the state," Conn. Gen. Stat. § 1-200(1)(A), state legislators are
subject to FOIA. See Freedom of information Commission, Declaratory
Ruling #90; Godbout v. Ayala and Hartley, FIC 2013-183, § 1 (FOIC
Feb. 11, 2014). Because you are on the board by virtue of your position
as a minority leader and legislators are subject to FOIA, you are
subject to FOIA while serving on the board.

Although the General Assembly could have exempted you from
FOIA by including express language to that effect in Public Act 19-117,
it did not do so. Nor did it include any language requiring that the
corporation's records be kept confidential, as it has done in other
statutes concerning other entities. See, e.g., Conn. Gen. Stat. §§ 51-
44a(j); 36a-21(a). It is a fundamental rule of statutory construction
that "[a] court must construe a statute as written," McCullough v.
Swan Engraving, inc., 320 Conn. 299, 309 (2016), and "may not by
construction supply omissions." Id. Accordingly, given the lack of any
language exempting the legislative board members from FOIJA or
requiring that they keep the corporation's records confidential, we
cannot read any such provisions into the statute.

The Honorable Themis Klarides
August 7, 2019
Page 4

Our conclusion that records in your possession relating to the
Partnership for Connecticut are subject to FOIA does not change the
fact that the corporation itself is exempted from FOIA. Thus, FOIA's
record disclosure provisions and open meeting requirements do not
apply to the corporation and are unaffected by your participation on
the board. It is only records relating to the corporation that are in your
possession that would be subject to disclosure in response to a citizen

request, and only if they were not otherwise statutorily exempt from
FOIA.

It should be noted that in reaching this conclusion we have not
consulted with the Freedom of Information Commission. It is possible
that the Commission might reach a different conclusion and you may
wish to seek its advice. Nonetheless, this opinion represents our
reasoned determination of how the Commission or a court would likely
rule if presented with the issue.

Very truly yours,

a

WILLIAM TON
ATTORNEY GEN