Compensation Records Concerning Non-Profit Employees Can Be Public Records in Ohio

Last week, the Ohio Supreme Court issued a unanimous public records decision involving a private non-profit organization/joint insurance pool for 66 counties. State ex rel. Bell v. Brooks, Slip Opinion No. 2011-Ohio-4897. The plaintiff had submitted a public records request to the entity seeking a wide variety of records. The entity responded that it was not subject to Ohio’s Public Records Act because it was not a public office. It was a private, non-profit that was exempt from federal taxation as a governmental instrumentality. 88% of its funding came from contributions from the member counties. However, its governing board consisted only of nine individual county commissioners. Examining a number of factors, the Court had no trouble concluding that it was not the functional equivalent of a public office, was not the alter ego of a governmental entity and did not perform traditional government functions.

However, one provision of Ohio’s Public Records Act applies to private, non-profit entities which receive more than 50% of their funding from government entities. With certain exceptions for confidential client/patient records, Ohio Revised Code §149.43 provides in relevant part that:

Any governmental entity or agency and any nonprofit corporation or association, except a corporation organized pursuant to Chapter 1719 of the Revised Code prior to January 1, 1980 or organized pursuant to Chapter 3941 of the Revised Code, that enters into a contract or other agreement with the federal government, a unit of state government, or a political subdivision or taxing unit of this state for the provision of services shall keep accurate and complete financial records of any moneys expended in relation to the performance of the services pursuant to such contract or agreement according to generally accepted accounting principles. Such contract or agreement and such financial records shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and are subject to the requirements of division (B) of that section, . . . .

Any nonprofit corporation or association that receives more than fifty per cent of its gross receipts excluding moneys received pursuant to Title XVIII of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, in a calendar year in
fulfillment of a contract or other agreement for services with a governmental entity shall maintain information setting forth the compensation of any individual serving the nonprofit corporation or association in an executive or administrative capacity. Such information shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and is subject to the requirements of division (B) of that section.

(italics emphasis added by Court).

Because the respondent entity arguably fit within this statutory section, the Court remanded the matter back to the trial court to determine whether the plaintiff was entitled to financial
and employee compensation records under the Ohio Public Records Act.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.