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Private Mental Health Services Contractor Is Not ‘Public Office’ Subject to Open Records Statute
2005-0813. State ex rel. Repository v. Nova Behavioral Health, Inc., 2006-Ohio-6713.
In Mandamus. Writ denied.
Resnick, Pfeifer, Lundberg Stratton and Lanzinger, JJ., concur.
Moyer, C.J., O'Connor and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6713.pdf
(Dec. 28, 2006) The Supreme Court of Ohio held today that a private, non-profit corporation that contracts with a county mental health board to provide community mental health services is not a “public office” whose records are subject to mandatory public disclosure under the state Public Records Act.
The case involved Nova Behavioral Health, Inc., a private, non-profit corporation that formerly provided mental health services to residents of Stark County and surrounding areas. According to a statement of stipulated facts, in fiscal year 2005, Nova received 87 percent of its total revenues and 92 percent of its revenues for non-drug and alcohol mental health services through a contract with the Stark County Mental Health Board (CMHB).
On April 7, 2005, the board's executive director made a report at a special board meeting called to discuss complaints received from several Nova clients. The director reported that an investigation of the complaints indicated that one of Nova's counselors, Dennis Bliss, had “crossed professional boundaries” in employing unorthodox therapy techniques that several female clients construed as inappropriate sexual advances.
The following day, a reporter with the Canton Repository newspaper made an oral request to Nova asking to view the contents of Bliss's personnel file, indicating the reporter's belief that Nova was obliged to grant access to the requested documents under provisions of the Ohio Public Records Act. Nova declined the request, indicating that as a private, non-profit corporation it was not a “public office” and was therefore not subject to the requirements of the Public Records Act.
In May 2005, the Repository filed an original action asking the Supreme Court to issue a writ of mandamus compelling Nova to provide the requested documents under the Public Records Act. The Court issued an alternative writ accepting the case for consideration. After the case was submitted, the Stark County CMHB announced that it was discontinuing its contractual relationship with Nova for all non-Medicare mental health services. In light of the loss of most of its funding, Nova discontinued operations as a community mental health care provider in August 2005.
Writing for the majority in today's 4-3 decision, Justice Paul E. Pfeifer said the primary issue in the case was “whether Nova, a private, nonprofit corporation providing community mental-health services under contract with the Stark County CMHB, is a public office for purposes of the Public Records Act.”
Justice Pfeifer noted that in State ex. rel. Oriana House Inc v. Montgomery (decided Oct. 4, 2006), the Court adopted a “functional equivalency” test for 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. Under that test, he said, 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.”
Applying these criteria to Nova's relationship with the Stark County CMHB, Justice Pfeifer concluded that: “Considering the totality of the foregoing factors, we hold that Nova is not a public institution and thus not a public office subject to the Public Records Act. Nova performed a uniquely governmental function only to a limited extent; the provision of mental-health services generally is not a historically or uniquely a governmental function. Nova's operations were independent of government. The Stark County CMHB did not make decisions for or control or direct the day-to-day operations of Nova, either by contract or otherwise, and indeed was statutorily prohibited from doing so. Nova was not created by government or as the alter ego of a governmental agency.”
Justice Pfeifer said the only “functional equivalency” factor that was wholly in the Repository's favor was the level at which Nova was governmentally funded. However he cited the Court's holding in Oriana House that ‘[t]he fact that a private entity receives government funds does not convert the entity into a public office for purposes of the Public Records Act.' “The Public Records Act was not designed to allow public scrutiny of ‘all entities that receive funds that at one time were controlled by the government'” wrote Justice Pfeifer. “Providing public access to Nova's records does not serve the policy of governmental openness that underlies the Public Records Act.”
The majority opinion was joined by Justices Alice Robie Resnick, Evelyn Lundberg Stratton and Judith Ann Lanzinger.
Chief Justice Thomas J. Moyer entered a dissent that was joined by Justices Maureen O'Connor and Terrence O'Donnell. The Chief Justice wrote that he dissented from the Oriana House decision based on the majority's failure to provide guidance on how courts should balance the four factors making up the “functional equivalency” test. In the current case, he asserted, the high percentage of Nova's annual revenues that came from governmental sources, the historical role played by the state and local governments in providing mental health services and the considerable control asserted by the Stark County CMHB over Nova's policies and operations should have resulted in a finding that Nova was the functional equivalent of a public office and therefore subject to the requirements of the Public Records Act.
Contacts
Richard D. Panza, 440.930.8000, for the
Canton Repository.
John B. Lindamood, 330.499.6000, for Nova Behavioral Health Care, Inc.
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