The Ohio Supreme Court dismissed a case that raised the issue of whether state associations, whose members consist of public entities and officials, are subject to the Public Records Act (the "PRA"). In a 6-1 ruling without a written opinion, the Court dismissed a suit the Dayton Tea Party filed against the Ohio Municipal League (the "OML") and the Ohio Township Association (the "OTA"), seeking to force those organizations to provide it with documents. State ex rel. Dayton Tea Party v. Ohio Municipal League, 2011 Ohio 4751, 2011 Ohio LEXIS 2222.
The Tea Party sought records from the OML and the OTA related to the organizations' positions and tactics used in their lobbying efforts. The Tea Party also sought membership records and records of all monetary transactions between the organizations and their members. Both the OML and the OTA refused to provide the records because they are private organizations instead of public offices. The Tea Party argued that the organizations were the functional equivalent of a public office in that they only existed to serve government bodies, had no independent existence separate from their government members, and used public funds to lobby or take positions in litigation on policy issues.
Under most circumstances, only a public office or a person responsible for public records is required to provide such records pursuant to a public records request. In certain situations, however, private entities may be subject to the strictures of the PRA. The Supreme Court first laid out the test for this determination in State ex rel. Oriana House, Inc. v. Montgomery (2006), where it stated:
- Private entities are not subject to the Public Records Act absent a showing by clear and convincing evidence that the private entity is the functional equivalent of a public office.
- In determining whether a private entity is a public institution under R.C. 149.011(A) and thus a public office for purposes of the Public Records Act, R.C. 149.43, a court shall apply the functional-equivalency test. Under this test, the court must analyze all pertinent factors, including (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 or to avoid the requirements of the Public Records Act.
110 Ohio State 3d 456, 2006-Ohio-4854, at paragraphs 1-2 of syllabus. See, also, State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St. 3d 338, 342 (2006).
To date, the Oriana House test has been fairly difficult for plaintiffs to meet. Under the functional equivalency test, the first inquiry is whether the entity “performs a governmental function.” In making this determination, the Ohio Supreme Court has focused on whether the entity performs what has “traditionally been a uniquely governmental function.” Oriana House, 110 Ohio St. 3d at 463. To meet this standard, the “private entity [must] exercise powers which are traditionally exclusively reserved to the state, such as holding elections . . . . or eminent domain.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (cited by Repository, 112 Ohio St. 3d at 343). In Oriana House, the entity in question was found to meet this standard because it administers a correctional institution, which has traditionally been a uniquely governmental function. In Repository, by contrast, the entity was found not to be “performing a historically governmental function, because ‘providing mental health services has not been a power which has traditionally been exclusively reserved to the state.’” 112 Ohio St. 3d at 343.
The second inquiry under the functional equivalency test is “the level of government funding.” “The fact that a private entity receives government funds does not convert the entity into a public office for purposes of the Public Records Act.” Oriana House, 110 Ohio St. 3d at 463. In Oriana House and Repository, the effect of the Ohio Supreme Court’s adoption of the functional equivalency test has been to relegate the significance of an entity’s receipt of public funding to a co-equal status of one factor among many to be considered. As a result, despite the fact that Oriana House received 100 percent of Summit County’s community-based correctional facilities funds and that Nova Behavioral Health was 92 percent publicly-funded, both of these entities were found not to be the functional equivalent of public offices subject to the Public Records Act.
The third inquiry under the functional equivalency test is “the extent of government involvement or regulation.” In both Oriana House and Repository, the Ohio Supreme Court focused on the lack of any evidence that any governmental body controlled “the day-to-day operations” of the entities in question. Oriana House, 110 Ohio St. 3d at 464; Repository, 112 Ohio St. 3d at 344.
The fourth and final inquiry under the functional equivalency test is “whether the entity was created by the government or to avoid the requirements of the Public Records Act.” Neither the OML nor the OTA were created by the government. Further, few organizations have been formed simply to avoid the PRA.
Once all of these factors have been weighed, it is difficult for a plaintiff to show that an organization is the “functional equivalent of a public office.” In both Oriana House and Repository, the Court determined that the entities were not the functional equivalent of a public office and, as a result, did not have a duty to respond to public records request. Recently, the Court also upheld a decision that an insurance pool of public offices is not itself a public office. State ex rel. Bell v. Brooks, 2011 Ohio 4897.1
Attempting to apply these principles, the Tea Party argued that the OML and the OTA only existed to serve government entities, that all or most of the organizations’ funds came from public funds, and that they were the functional equivalent of a public office. The OML and the OTA, on the other hand, argued that the only factor from the test that was applicable to them was that they received funds from their governmental members. They also argued that their receipt of those funds did not, in itself, make them the functional equivalent of a public office.
The Ohio Supreme Court dismissed the Tea Party’s Complaint. Because no opinion was issued, it cannot be said that the Court has definitively rejected the Tea Party’s arguments. However, the dismissal does suggest that a majority of the Court is not presently inclined to give consideration to such claims. This should give some comfort and assurance to the many associations within Ohio serving governmental members that, under ordinary circumstances, their records will not be considered subject to Ohio’s public records law. Because this is a developing area of the law, however, and other circumstances and statutes may impact the analysis in a particular case, associations should continue to monitor developments on this topic.