Thursday, December 12, 2013

Is Supreme Court Ruling Closing Door on Public Records Access?

  The Supreme Court’s new service this morning is carrying an editorial by the Hudson Hub Times saying “The Ohio Supreme Court closed the door on public records access to JobsOhio yesterday in affirming its exemption as the non-profit entity created by Gov. John Kasich to oversee state economic development efforts,” noting the Court’s having heard arguments in a challenge to JobsOhio brought by an advocacy group that contended it was unconstitutional because the state is prohibited from establishing private enterprises. [ See State Ex Rel. Ullmann v. JobsOhio Et.Al ]
  Realtor Victoria Ullman’s complaint back in August contended “JobsOhio performed a government function and is funded by a lease of a government asset. JobsOhio exists only due to its creation pursuant to R.C. 187 and the liquor revenue granted to it in R. C. 4313. It was designed specifically to avoid public documents production obligations or any other public scrutiny…  R.C. 149.011(B) states: "State agency" does not include the nonprofit corporation formed under section 187.01 of the Revised Code." However, Ohio Constitution 13.01 forbids the General Assembly from creating a corporate entity of any kind. This renders this exemption void ab initio … (therefore)  JobsOhio is unconstitutional and was from its inception pursuant to Ohio Constit. 13.01 and 1302. This court can declare it unconstitutional in toto once it determines that this section of R.C. 149.011 is void pursuant to Ohio Const. 13.  [See also realtor’s Memorandum in support of writ ]
  The State in its motion to dismiss, which the Court granted, responded that “The legislation enabling the creation of JobsOhio, a private not-for-profit entity, could not be clearer in pronouncing that JobsOhio is not a "public office" (and, therefore, not property subject to a public records request) and that documents requested from JobsOhio are not "public records." See R.C. 187.03(A) (JobsOliio shall not constitute a "public office" for purposes of R.C. Chapter 149); R.C. 187.04(C)(1) (records created by JobsOhio are not public records); see also R.C. 149.43(A)(1)(cc) (providing that "public record" does not mean records described in R.C. 187.04(C) that are not designated to be made available to the public); R.C. 149.011(A) ("`Public office' does not include the nonprofit corporation formed under section 187.01 of the Revised Code.");” noting also that “Relator's efforts began in 2011 in her former capacity as the attorney for, Inc. ("ProgressOhio"), and then continued as an amicus curiae in the case of ProgressOhio v. JobsOhio, Case No.2012-1272, pending before this Court. Relator has been unsuccessful in having those claims heard, however, because ProgressOhio lacks standing under Ohio law.”

ProgressOhio v. JobsOhio, Case No. 2012-1272 was heard on November 6th.
House Bill 1 creating JobsOhio in 2011
[Legislative Service's analysis of HB 1 (2011)]
[See also Jurisdictionalmemorandum of amicus curiae 1851 Center for Constitutional Law in support of appellant filed July 30, 2012 with respect to ProgressOhio v. JobsOhio ]


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