Ohio Supreme Court Rules Records of Privately Managed Prison Are Not Public
 
December 5, 2006
 
Suzanne Elizabeth Rollier - Chicago

A sharply divided Ohio Supreme Court reversed an earlier appellate court ruling and held that a private organization operating a public correctional facility with substantial public funding is beyond the reach of the state’s public records act.

In Oriana House v. Montgomery, Ohio’s highest court faced the question of whether a private organization operating a county’s community-based correctional facility (CBCF) should be required to turn over personnel files, records identifying certain accounts and travel reports as part of a special audit by the state’s auditor. The court had previously ruled that Oriana House was subject to the audit. Oriana House argued, however, that it was not required to turn over the requested records because it was not a “public office” as defined by R.C. Chapter 149, Ohio’s Public Records Act.

Adopting an approach used in other jurisdictions, the court held that a private entity would be considered a public office under the Act if it were “functionally equivalent” to a governmental office. The court laid out a four-factor test to determine functional equivalency: (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 order to be subject to the law, there must be clear and convincing evidence that the entity is a public institution.

Applying the test to Oriana House, the court held that there was no question the administration of a correctional facility is a governmental function, and that Oriana House received a significant level of its funding from public sources. According to the court, however, neither of these factors was dispositive. If it were, the court suggested, any private organization receiving private funding could be rendered a “public office” subject to the Act. A host of private nonprofit organizations such as the United Way and the Ohio Domestic Violence Network agreed, and filed amici curiae in support of reversal.

The court found the final two factors were fully in Oriana House’s favor, because the government did not control its daily operations and it was created as a private organization. Taking all four factors into account, the court determined that there was not clear and convincing evidence that Oriana House was a public institution and therefore it could not be subject to the Act.

In his dissent, in which he was joined by two other justices, Ohio Chief Justice Thomas J. Moyer argued that the majority opinion left no guidance about how much weight each factor should be accorded. Reapplying the factors, the chief judge stressed that Oriana House received 100 percent of the county’s CBCF’s funds. Moreover, 88 percent of the organization’s $25 million operating budget was derived from public sources. He concluded that because Oriana House performed all of the duties of the CBCF – the two entities even shared the same person as CEO and director – in return for all of the county’s revenues for the CBCF, it should be considered the functional equivalent of the public institution and as such should be held accountable to the public.

For more information, e-mail Suzanne E. Rollier at suzanne.rollier@hklaw.com or call toll free, 1-888-688-8500.