Supreme Court Again Rejects Application
of Ohio Public Records Act

Maria J. Armstrong
Bricker & Eckler LLP
January 2007

Full text of State ex rel. Repository v.
Nova Behavioral Health, Inc., 2006-Ohio-6713

Summary. The Ohio Supreme Court recently revisited the new four-part test it announced in October of 2006 for determining whether a private entity is a public office for purposes of the Ohio Public Records Act. In another split decision, the Court again concluded that a private, non-profit entity that provides contract services for a political subdivision could not be forced to disclose records under the Ohio Public Records Act. The more recent case involved the provision of different services, however, and the majority of the Court’s application of the four-part test was slightly different. In State ex rel. Repository v. Nova Behavioral Health, Inc., the Court found that a private entity that provides mental health services under contract with a county is not performing a historically governmental function, thus is not subject to a public records request.

On December 28, 2006, the Ohio Supreme Court issued a 4-3 Opinion finding that a private, non-profit corporation that provides community mental health services via contract with a county agency is not a “public office” whose records are subject to disclosure under the Ohio Public Records Act. In State ex rel. Repository v. Nova Behavioral Health, Inc., 2006-Ohio-6713, the facts established that Nova Behavioral Health, Inc. was a private, non-profit corporation that contracted with the Stark County Mental Health Board (CMHB) to provide mental health services for county residents. Nova received about 92% of its total revenues from the Stark County CMHB, and thus the money used to pay Nova’s contract came from state and local taxes or from federal subsidies.

A newspaper reporter with The Canton Repository made a public records request to review the personnel file of a Nova counselor who was accused of inappropriate sexual advances toward several of his clients. Nova refused to provide the records on the grounds that it was a private, non-profit corporation and therefore not subject to the Public Records Act. The Canton Repository filed an original action in mandamus asking the Supreme Court to compel Nova to produce the records requested.

In a 4-3 decision, a majority of the Court concluded that although Nova provided community mental health services under contract with the CMHB, it was not a public office for purposes of the Public Records Act. To reach this conclusion, the Court applied the “functional equivalency” test it had established in a similar case a few months earlier. See State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St. 3d 456, 2006 Ohio 4854, 854 N.E.2d 193 and the Bricker & Eckler article Ohio Supreme Court Sets New Test for Determining Whether a Private Entity is Subject to Public Records Laws.

In Oriana House, the Court adopted a four-part “functional equivalency” test for determining whether a private entity is a public office for purposes of the Public Records Act. Under that test, a court must analyze:

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.

In Oriana House, a 4-3 majority found that Oriana House, a non-profit community-based correctional facility, performed a governmental function and was heavily funded by the county. But Oriana House was not regulated by the county nor created for the purpose of avoiding the Public Records Act. When all four factors of the test were weighed, the Court found that Oriana House was not a public office under the test, and could not be forced to turn over records under Ohio’s public records law.

In Nova Behavioral Health, the majority of the Court applied the same four factors and reached the same ultimate conclusion. However, the Court found that unlike Oriana House, Nova did not perform a “governmental function.” In reaching this conclusion, the majority acknowledged that Nova was a community mental-health agency as defined in R.C. 5122.01(H). The Court also noted that Nova operated as a “safety net” to provide mental health care for residents who were not adequately covered by commercial insurance.

However, the Court concluded that the provision of mental health services is not uniquely a governmental function and has not historically been considered a governmental function. There is no enabling legislation or legal duty for the Stark County CMHB to provide community mental-health services. Thus Nova met only one of the four factors of the functional equivalency test (the level of governmental funding) and was found not to be the functional equivalent of a public office. Finally, the majority of the Court stressed, as it had in Oriana House, that by merely receiving “government funds the entity does not convert into a public office for purposes of the Public Records Act.”

The three-member minority of the Court dissented, disagreeing with the majority’s conclusion that providing mental health services is not historically a governmental function. On these grounds, the minority of the Court would have found that Nova was the functional equivalent of a public office and would have required it to comply with the Public Records Act.