Private business not subject to Ohio's open records statute

John O'Brien Jan. 3, 2007, 2:55pm


COLUMBUS, Ohio - The Supreme Court of Ohio recently held that a private, non-profit corporation that was contracted by a county mental health board was not subject to the state's policy of mandatory disclosure of its records.

In a 4-3 vote, Nova Behavioral Health Inc. was found to not be considered a public office even though it was contracted by and performed work for one. Justice Paul Pfeifer wrote the majority's opinion.

"Providing public access to Nova's records does not serve the policy of governmental openness that underlies the Public Records Act," Pfeifer wrote in the opinion released Dec. 28.

In April 2005, a reporter from the Canton Repository newspaper asked Nova to see the personnel file of a woman who had claimed that Dennis Bliss, a counselor at Nova, had used unorthodox therapy techniques that several female clients construed as inappropriate sexual advances.

Nova declined the request, and, in May 2005, the newspaper asked the Supreme Court to issue a writ of mandamus compelling Nova to provide the documents. The Repository said Nova's close relationship with the Stark County Community Mental Health Board made Nova subject to the Public Records Act.

"Pursuant to its contract with the Stark County CMHB, Nova was obligated to provide mental-health services to residents of Stark County and others who qualified for coverage under the community mental-health plan for Stark County," Pfeifer wrote.

"By virtue of this contract, Nova was a community mental-health agency as defined in (Ohio law), but it was not ipso facto a public office for purposes of the Public Records Act."

Justices Alice Robie Resnick, Evelyn Lundberg Stratton and Judith Ann Lanzinger joined in the opinion.

Chief Justice Thomas J. Moyer and justices Maureen O'Connor and Terrance O'Donnell dissented.

Moyer wrote that Nova qualified as a public office when put to a test of four guidelines.

"Nova's records and data were required to be available to Stark County CMHB for review, Nova's standards of performance were established by Stark County CMHB and Nova was required to allow Stark County CMHB to monitor and review its performance in order to ensure that Nova was meeting the requirements imposed by the government," Moyer wrote.

"Although Nova was responsible and independent as to its day-to-day operation, the provision of mental-health services was extensively regulated by the government."

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