Ohio State Reports
Unpublished
STATE v. NOVA BEHAVIORAL HEALTH, INC., Unpublished Decision
(12-28-2006) 2006-Ohio-6713 THE STATE EX REL. THE
REPOSITORY v. NOVA BEHAVIORAL HEALTH, INC. No. 2005-0813
Supreme Court of Ohio. December 28, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] IN MANDAMUS.
Wickens, Herzer, Panza, Cook & Batista Co., Richard D.
Panza, William F. Kolis Jr., and Michael R. Niederbaumer,
for relator.
Baker, Dublikar, Beck, Wiley & Mathews, John B. Lindamood
and James F. Mathews, for respondent.
Vorys, Sater, Seymour & Pease, L.L.P., G. Ross Bridgman and
Peter A. Lusenhop, urging denial of the writ for amicus
curiae, Ohio Council of Behavioral Health Providers.
PFEIFER, J.
{¶ 1} This is an original action for a writ of
mandamus to compel a private, nonprofit corporation to
provide access to certain records under the Public Records
Act, R.C. 149.43. For the reasons that follow, we deny the
writ. I. Community Mental-Health Services
{¶ 2} R.C. Chapter 340 was enacted to, among other
things, “[e]stablish a unified system of treatment for
mentally ill persons” and “[f]oster the development of
comprehensive community mental health services, based on
recognized local needs, especially for severely mentally
disabled children, adolescents, and adults.” R.C.
340.011(A)(1) and (5). As explained by the Ohio Department
of Mental Health (“ODMH”), “[t]his public system serves as
a safety net, providing care for the uninsured and
compensating for inadequate benefits in commercial health
insurance plans.”
{¶ 3} According to R.C. 340.01(B), “An alcohol, drug
addiction, and mental health service district shall be
established in any county or combination of counties having
a population of at least fifty thousand,” and any county or
combination of counties having a population of less than
50,000 may establish such a district. “For each alcohol,
drug addiction, and mental health service district, there
shall be appointed a board of alcohol, drug addiction, and
mental health services of eighteen members.” R.C. 340.02.
According to ODMH, “[t]he Department funds, reviews and
monitors community mental health programs coordinated by 50
county-level boards serving all 88 counties.”
{¶ 4} As relevant here, an alcohol, drug-addiction,
and mental-health services board (“ADAMH board”) has three
primary responsibilities under the statute. First, it is
required to “[s]erve as the community mental health
planning agency for the county or counties under its
jurisdiction.” R.C. 340.03(A)(1). In so doing, the board
must “develop and submit to the department of mental health
* * * a community mental health plan,” “submit an
allocation request for state and federal funds,” and
“implement the plan approved by the department.” R.C.
340.03(A)(1)(c).
{¶ 5} Second, an ADAMH board must “enter into
contracts with public and private community mental health
agencies for the provision of community mental health
services listed in section 340.09 of the Revised Code and
included in the board’s community mental health plan.” R.C.
340.03(A)(8)(a). Only in certain narrowly defined
circumstances when “there is no other qualified private or
public * * * community mental health agency immediately
available” is an ADAMH board permitted to provide a
community mental-health service, and then only for a
limited time or on a limited basis. R.C. 340.03(A)(8)(b).
{¶ 6} Third, an ADAMH board is obligated to monitor
the community mental-health agencies with which it
contracts. Specifically, the board must “[investigate, or
request another agency to investigate, any complaint
alleging abuse or neglect of any person receiving services
from a community mental health agency,” “review and evaluate
the quality, effectiveness, and efficiency of services
provided through its community mental health plan and
submit its findings and recommendations to the department
of mental health,” and “[a]udit * * * at least annually all
programs and services provided under contract with the
board.” R.C. 340.03(A)(2), (4), and (6). According to ODMH,
as of May 2005, there were approximately 500 community
mental-health agencies operating in Ohio.
II. Stark County CMHB and Nova
{¶ 7} The Stark County Community Mental Health Board
(“Stark County CMHB”) was established in 1967 to serve as
the community mental-health planning agency for Stark
County. In 2004, the Stark County CMHB had $30.1 million in
revenue, approximately two-thirds of which was from state
and local tax funding with most of the remainder from
federal subsidies. That same year, the Stark County CMHB
disbursed $23.8 million, or approximately 79 percent of its
revenue, among organizations with which it had contracts
for the provision of community mental-health services.
Respondent, Nova Behavioral Health, Inc. (“Nova”), is one
of 14 organizations with which Stark County CMHB has such
contracts.
{¶ 8} Nova is a private, nonprofit Ohio corporation
that was created in 1997 by the merger of three different
nonprofit mental-health corporations. Nova’s purpose, as
described in its articles of incorporation, is to “improve
the quality of life of the citizens of our communities by
providing exemplary behavioral health care to members of
these communities.” According to its own projections in
September 2004, Nova would receive $8.89 million in revenue
for mental-health services, 92 percent or $8.17 million of
which would be compensation by contract from the Stark
County CMHB. Nova did not, however, receive any direct
public funding, financing, or subsidies. It maintained its
own facilities, established the terms and conditions of
employment for its staff, and maintained its own retirement
plan. Nova’s employees are not covered under the Ohio
Public Employees Retirement System.
{¶ 9} In light of the statutory obligation of an
ADAMH board to monitor its service providers, the fiscal
year 2005 contract between the Stark County CMHB and Nova
provided:
{¶ 10} “6.3. Access to Records and Information
{¶ 11} “The Provider shall make available to the
Board or its designated representative, for review, all
records and data pertaining to payments, claims and
services rendered to members under this Agreement. The
Provider shall allow duplication of such records during
business hours.
{¶ 12} “The Provider shall permit the Board, state,
and federal agencies acting through their agents or
representatives to visit, examine, inspect, and review the
Provider, its operations, programs, activities, and its
financial and personnel records pursuant to this Agreement
all at reasonable times and upon reasonable notice.
{¶ 13} “The Board’s Executive Director or designee
may obtain immediate access to information without prior
notice, including access to staff, individual client
records and client accounts, when such information is
reasonably related to allegations of abuse or neglect of a
client being investigated or to prevent imminent harm to
clients.”
III. Records Requests and Mandamus
{¶ 14} In late summer or early fall of 2004, Nova
became aware of allegations by female patients that Dennis
Bliss, an employee and mental-health counselor for Nova,
was using counseling techniques that were sexually
suggestive or otherwise improper. Sometime prior to April
8, 2005, Nova suspended Bliss without pay pending an
investigation into the matter by the Stark County CMHB. At
a special board meeting on April 7, 2005, the executive
director of the Stark County CMHB stated that there was
evidence that “professional boundaries were crossed with
women who came forward to complain.”
{¶ 15} On April 8, 2005, a staff writer for relator,
the Repository, a daily newspaper of general circulation in
Stark County, requested that Nova provide access to Bliss’s
personnel file. Nova rejected the request, stating that
“the only way we release any personnel files is with a
release from the employee.” On April 20, 2005, the
Repository reiterated its request for Bliss’s personnel
file. On April 22, 2005, Nova denied the request, stating,
“[W]e do not feel that Nova Behavioral Health, Inc., a
private, nonprofit, contract agency, is subject to Ohio
Revised Code Section 149.43 in that it is not a `public
agency.’ ”
{¶ 16} On May 5, 2005, the Repository filed this
action for a writ of mandamus to compel Nova to allow the
Repository to inspect and copy all nonexempt portions of
Bliss’s personnel file. After Nova answered, the court
granted an alternative writ, 106 Ohio St.3d 1458,
2005-Ohio-3490, 830 N.E.2d 1167, and issued a schedule for
evidence and briefs. In June 2005, the Stark County CMHB
informed Nova that it would no longer be paid for
non-Medicare services. Based on the loss of this revenue,
Nova’s board of trustees voted to cease all operations and
close effective August 5, 2005.
{¶ 17} The parties filed evidence and briefs, and
Ohio Council of Behavioral Health Providers submitted an
amicus curiae brief in support of Nova. Oral argument was
conducted on March 29, 2006.
IV. R.C. 149.43
{¶ 18} The Repository seeks a writ of mandamus to
compel Nova to provide access to an employee’s personnel
file under R.C. 149.43. “Mandamus is the appropriate remedy
to compel compliance with R.C. 149.43, Ohio’s Public
Records Act.” State ex rel. Dispatch Printing Co. v.
Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274,
¶ 16. “We construe R.C. 149.43 liberally in favor of
broad access and resolve any doubt in favor of disclosing
records.” State ex rel. Plain Dealer Publishing Co. v.
Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d
987, ¶ 20.
{¶ 19} The primary issue in this case is 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. ” `Public record’ means records kept by any public
office * * *.” R.C. 149.43(A)(1). ” `Public office’ includes
any state agency, public institution, political
subdivision, or other organized body, office, agency,
institution, or entity established by the laws of this
state for the exercise of any function of government.” R.C.
149.011(A). The Repository does not assert that Nova, while
operational, was a state agency, political subdivision, or
other organized body, office, agency, institution, or
entity established by the laws of this state for the
exercise of any function of government. Instead, the
Repository contends that Nova was a “public institution”
under R.C. 149.011(A) and thus a public office subject to
R.C. 149.43. V. Public Institutions and the
Functional-Equivalency Test
{¶ 20} When this cause was submitted on March 29,
2006, the court was using different tests to determine
whether a particular entity is a public institution for
purposes of the Public Records Act. In cases where the
entity in question was a hospital, the court applied a
three-part test: “[I]f we find that a particular hospital is
a public hospital, renders a public service to residents,
and is supported by public taxation, we must hold that it
is a public office required to disclose its public
records.” State ex rel. Fostoria Daily Rev. Co. v. Fostoria
Hosp. Assn. (1988), 40 Ohio St.3d 10, 12, 531 N.E.2d 313.
See, also, State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys.
(1988), 39 Ohio St.3d 108, 529 N.E.2d 443, paragraph one of
the syllabus; State ex rel. Stys v. Parma Community Gen.
Hosp. (2001), 93 Ohio St.3d 438, 440, 755 N.E.2d 874. In
cases involving other entities, the court applied a
two-part test: “An entity organized for rendering service to
residents of the community and supported by public taxation
is a public institution.” State ex rel. Freedom
Communications, Inc. v. Elida Community Fire Co. (1998), 82
Ohio St.3d 578, 579, 697 N.E.2d 210.
{¶ 21} The court has since modified the test for
determining a private entity’s status as a public
institution under R.C. 149.011(A). In State ex rel. Oriana
House, Inc. v. Montgomery, 110 Ohio St.3d 456,
2006-Ohio-4854, 854 N.E.2d 193, at the syllabus, the court
held:
{¶ 22} “1. Private entities are not subject to the
Public Records Act absent a showing by clear and convincing
evidence that the private entity is the functional
equivalent of a public office.
{¶ 23} “2. In 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, R.C.
149.43, a court shall apply the functional-equivalency
test. Under this test, the court must analyze all pertinent
factors, including (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.”
{¶ 24} We adopted the functional-equivalency test in
Oriana House because it is best suited to the overriding
purpose of the Public Records Act, which is “to allow
public scrutiny of public offices, not of all entities that
receive funds that at one time were controlled by the
government.” Id. at ¶ 36. By homing in on the
functional realities of a particular contractual
arrangement, the functional-equivalency test provides
greater protection against unintended public disclosures
while affording a more suitable framework for determining
the extent to which an entity has actually assumed the role
of a governmental body.
{¶ 25} Although the functional-equivalency test was
not formally a part of Ohio public-records law while the
present cause was being argued, we find it unnecessary for
the parties to restate their positions in light of this
change. In Oriana House, the court explained that in cases
decided under the former tests, “we have considered factors
similar to the factors in the functional-equivalency test
in making the determination” whether an entity is a public
institution. Id., 110 Ohio St.3d 456, 2006-Ohio-4854, 854
N.E.2d 193, at ¶ 24. In discussing the application
of our previous tests to the facts of this case, the
parties have identified and addressed all of the factors
that are relevant in a functional-equivalency analysis, and
we can easily adjust their arguments where required. VI.
Application of the Functional-Equivalency Test to Nova A.
Governmental Function
{¶ 26} 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. By virtue of this contract, Nova was
a community mental-health agency as defined in R.C.
5122.01(H), but it was not ipso facto a public office for
purposes of the Public Records Act. R.C. 340.03(A)(8)(a)
expressly provides for the participation of both “public
and private community mental health agencies * * * in the
board’s community mental health plan.” Cf. Jackson v. New
Ctr. Community Mental Health Servs. (1987), 158 Mich.App.
25, 35, 404 N.W.2d 688.
{¶ 27} In Oriana House, we found that a private
entity operating a community-based correctional facility
under contract with a judicial corrections board “is
performing a historically governmental function” because
“[t]he administration of prisons has traditionally been a
uniquely governmental function.” Id., 110 Ohio St.3d 456,
2006-Ohio-4854, 854 N.E.2d 193, at ¶ 28. Applying
this test, a private entity that provides community
mental-health services under contract with an ADAMH board
is not performing a historically governmental function,
because “providing mental health services has not been a
power which has traditionally been exclusively reserved to
the state.” Wolotsky v. Huhn (C.A.6, 1992), 960 F.2d 1331,
1335 (applying a “public function” test to determine
whether a private community mental-health agency is a
“state actor” for purposes of Section 1983, Title 42,
U.S.Code).
{¶ 28} Nor are we presented with the situation in
which a public agency transfers one of its own functions to
a private entity. See, e.g., Memphis Publishing Co. v.
Cherokee Children & Family Servs., Inc. (Tenn. 2002), 87
S.W.3d 67, 79 (crux of analysis is whether governmental
agency is “contractually delegating its responsibilities to
a private entity,” and “the record reflects that [the
Tennessee Department of Human Services] directly performed
[child-care] services prior to entering into the contracts
with [a private entity]”); Marks v. McKenzie High School
Fact-Finding Team (1994), 319 Ore. 451, 464, 878 P.2d 417
(“The investigatory function to be performed by defendant
was sufficiently related to the statutory duties of the
school board to weigh in favor of finding that defendant is
a `public body’ “).
{¶ 29} Nothing in the record or the enabling
legislation suggests that the Stark County CMHB directly
performed, had a legal duty to perform, or was generally
statutorily authorized to provide community mental-health
services prior to entering into the contract with Nova.
Indeed, R.C. 340.03(A)(8)(b) generally prohibits an ADAMH
board from providing a community mental-health service.
{¶ 30} We agree with the Repository, however, that
“[t]he provision of * * * a `safety net’ [to provide care
for mental illnesses inadequately covered by commercial
insurance] is uniquely a government function.” Providing
mental-health care for the uninsured and compensating for
the inadequacy of benefits in commercial health-insurance
plans is not a function commonly performed by private
entities. Although there is no specific statutory provision
to this effect, the ODMH’s intent in this regard is
manifest and entirely consistent with the beneficent
purposes of the legislation. In any event, the contract
between Nova and the Stark County CMHB expressly provided
that mental-health services are “to be made available to
all members of the community regardless of their ability to
pay.” See Memphis Publishing, 87 S.W.3d at 79 (“providing
child care services for indigent families * * * [was]
undeniably public in nature”); Stys, supra, 93 Ohio St.3d
at 442, 755 N.E.2d 874 (“Unlike the lease in Fostoria,
however, the lease agreement in the present case does not
stipulate that Parma Hospital must serve the public
regardless of * * * ability to pay”).
{¶ 31} Thus, Nova was performing a governmental
function to the extent that it contracted to provide
mental-health services to Stark County residents regardless
of their ability to pay.
B. Level of Government Funding
{¶ 32} Approximately 92 percent of Nova’s revenue
from mental-health services came from its contract with the
Stark County CMHB. Even if Nova’s revenue from alcohol-and
drug-addiction services is factored into the calculation,
Nova still received 87 percent of its total revenues from
the Stark County CMHB. In turn, the Stark County CMHB
received virtually all of its revenues from public sources.
{¶ 33} The level of government funding is therefore
significant, especially considering that Nova ceased its
operations because of the loss of most of its revenues from
the contract with the Stark County CMHB.
C. Extent of Government Involvement or Regulation
{¶ 34} There is no evidence that the Stark County
CMHB or any other governmental body controlled the
day-to-day operations of Nova. The statutory monitoring
requirements, as well as the various contractual terms that
the Repository cites as examples of “the high degree of
control the Board has over Respondent,” do not constitute
day-to-day government supervision. These requirements and
stipulations constitute only the control necessary to
ensure that government funds are properly used and to
protect the government’s interest in the development of an
effective community-based mental-health system. Cf Ry. Labor
Executives’ Assn. v. Consol. Rail Corp. (D.C.D.C.1984), 580
F.Supp. 777, 779.
{¶ 35} In fact, R.C. 340.03(A)(8)(b) specifically
withholds from ADAMH boards the authority “to administer or
direct the daily operation of any facility or community
mental health agency.” And while this provision does permit
a community mental-health agency “to receive administrative
services or staff direction from the board,” it specifies
that such assistance is to be provided “under the direction
of the governing body of the facility or agency.” Moreover,
Nova maintained its own facilities, retirement plan, and
accreditation surveys, and nothing in the records suggests
that any of Nova’s employees or board members were
government employees or officials.
{¶ 36} Nova was therefore a self-directed,
independent, private corporation.
D. Creation of Entity
{¶ 37} Nova was created as a private, nonprofit
corporation. While its incorporators may well have
envisioned and even depended on procuring a government
contract with an ADAMH board, Nova was not established by a
governmental entity or pursuant to any special legislation.
No law required Nova’s creation; no statute required it to
be funded or remain in existence. Nor is there any
indication in the record that Nova was created or used by
the government to avoid the requirements of the Public
Records Act.
E. Weighing of Factors
{¶ 38} 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 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.
The only factor that is wholly in the Repository’s favor is
the level at which Nova was governmentally funded. But
“[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.” Oriana House, 110 Ohio
St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 29.
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.” Id. at ¶
36.
{¶ 39} Providing public access to Nova’s records
does not serve the policy of governmental openness that
underlies the Public Records Act.
VII. Alternate Claim
{¶ 40} Relying on State ex rel. Toledo Blade Co. v.
Ohio Bur. of Workers’ Comp., 106 Ohio St.3d 113,
2005-Ohio-6549, 832 N.E.2d 711, the Repository raises the
alternate claim that even if Nova was not a public office,
it was “the person responsible for the public record” under
R.C. 149.43(C) and therefore subject to the Public Records
Act.
{¶ 41} The Repository, however, waived this claim
because it could have raised, but failed to raise, the
claim in its complaint or amend its complaint to include
it. We granted an alternative writ and the parties
submitted evidence based solely on the Repository’s claim
that Nova constituted a public office, and there is no
indication that Nova consented to trial of the alternate
claim. Under these circumstances, we need not address the
merits of this alternate claim. See, e.g., State ex rel.
Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385,
391, 715 N.E.2d 179; State ex rel. Musial v. N. Olmsted,
106 Ohio St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243,
¶ 31.
{¶ 42} In any event, this cause is entirely
distinguishable from the situation that was presented to us
in the Toledo Blade case. In Toledo Blade, the Capital Coin
Fund companies and their inventory were essentially owned
by the Bureau of Workers’ Compensation, and the requested
records pertained to purchase and sale transactions
involving what were essentially the bureau’s coins. The
Capital Coin Fund companies’ records, to the extent they
documented transactions concerning the bureau’s coins, were
therefore prepared in order to carry out the bureau’s
responsibility. To this extent, the companies were persons
responsible for the bureau’s records. In the present cause,
however, no such relationship exists between the Stark
County CMHB and Nova.
VIII. Conclusion
{¶ 43} For all of the foregoing reasons, we hold
that Nova was not the functional equivalent of a public
office or a person responsible for public records. Nova,
therefore, is not subject to the Public Records Act, and
the writ of mandamus requested by the Repository is hereby
denied. Writ denied.
RESNICK, LUNDBERG STRATTON and LANZINGER, JJ., concur.
MOYER, C.J., O’CONNOR and O’DONNELL, JJ., dissent.
MOYER, C.J., dissenting.
{¶ 44} I respectfully dissent. In State ex rel.
Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456,
2006-Ohio-4854, 854 N.E.2d 193, this court adopted the
functional-equivalency test and listed four factors to
analyze in determining whether a private entity is a public
office for purposes of the Public Records Act, R.C. 149.43.
Id., syllabus. While I agreed with the adoption of the
functional-equivalency test, I dissented in Oriana House
because I disagreed with the application of the test to the
facts in that case. Id. at ¶ 39.
{¶ 45} In my dissent I also disagreed with the
majority’s failure to give guidance as to the appropriate
balancing of the different factors, id. at ¶ 41, and
expressed my view that the second factor, the level of
government funding, should be given more weight than other
factors, id. at ¶ 46.
{¶ 46} In this case, as in Oriana House, I disagree
with the conclusion of the majority that the application of
the functional-equivalency test supports a finding that the
custodian of the records, here Nova Behavioral Health, Inc.
(“Nova”), is not a public office for purposes of the Public
Records Act.
{¶ 47} I would apply the four-part
functional-equivalency test to Nova as follows:
{¶ 48} 1. Governmental Function. As stated in the
majority opinion, pursuant to its contract with the Stark
County Community Mental Health Board (“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, regardless
of community members’ ability to pay for the services. The
majority applied the reasoning articulated in Oriana House
to the facts of this case. In Oriana House, the majority
found that Oriana House, a private entity operating a
community-based correctional facility, was performing a
“historically” and “uniquely” governmental function. Id. at
¶ 28. According to the majority in this case, the
provision of mental-health services is not ” `a power which
has traditionally been exclusively reserved to the state.’
” ¶ 48, quoting Wolotsky v. Huhn (C.A.6, 1992), 960
F.2d 1331, 1335.
{¶ 49} I disagree with the majority’s finding that
the provision of mental-health services has not been
“traditionally” or “historically” the function of the
state. The era of establishing state-funded psychiatric
hospitals began during the early 19th century. Joanmarie
Ilaria Davoli, No Room at the Inn: How the Federal Medicaid
Program Created Inequities in Psychiatric Hospital Access
for the Indigent Mentally Ill, 29 American Journal of Law &
Medicine (2003) 159, 168. In the 1840s, a reform movement
to improve care of the mentally ill resulted in major
investments by states in the building and maintenance of
psychiatric hospitals. Id.
{¶ 50} Further, the 1965 legislative history of
Medicaid reveals legislators’ perception that treatment of
the mentally ill was the responsibility of the states: “The
committee believes that responsibility for the treatment of
persons in mental hospitals * * * is that of the mental
health agency of the State.” Senate Report No. 404 (Finance
Committee, 1965), reprinted in 1965 U.S. Code Cong. & Adm.
News, 1943, 2086, quoted in id. at 169. Following the
development of Medicaid and the Medicaid exclusion of the
majority of adults in psychiatric hospitals from its
reimbursement program, states began to vastly reduce the
number of institutionalized patients. Id. at 169-170. Since
1955, the removal of patients from state hospitals has
depopulated them by approximately 93 percent. Id. at 174.
{¶ 51} With mentally ill patients no longer housed
in state hospitals, community mental-health care has
increased dramatically. Between 1981 and 1997, state
psychiatric hospital expenditures decreased by 42.8
percent, while community mental-health spending increased by
58.9 percent. National Association of State Mental Health
Program Directors Research Institute, Inc., State Profile
Highlight, Closing and Reorganizing State Psychiatric
Hospitals: 2000 (August 10, 2000), at
http://www.nri-inc.org/SH RPT.pdf (accessed Dec. 6, 2006).
In fiscal1997, expenditures controlled by state
mental-health agencies for community mental-health services
exceeded expenditures on state psychiatric hospital
inpatient services by $2.5 billion. Id.
{¶ 52} A historical review of Ohio statutes supports
the conclusion that the state of Ohio once assumed
responsibility as the primary provider of care to the
mentally ill. G.C. 1890-2 stated the purpose of the act
that created the Division of Mental Diseases: “to provide
humane and medical treatment and care, preventive and
curative, for mentally ill, insane, feeble-minded, and
epileptic persons.” 1937 Am. Sub. H.B. No. 545, 117 Ohio
Laws 550. G.C. 1890-14 stated, “The state of Ohio shall
have the care, custody, control and treatment of all persons
mentally ill or insane, and of each person who shall be
received into any hospital or institution under the control
of this division. Except as provided in this act, no
county, city or political subdivision shall establish or
maintain any institution, hospital or home for the care,
control and treatment of the mentally ill or insane.”
(Emphasis added.) Id.
{¶ 53} While family members and some private
hospitals have also cared for the mentally ill over the
last two centuries, this fact does not illuminate whether
the provision of care for the mentally ill is a government
function. Specifically, I disagree with the use of the word
“exclusively” in the majority’s reasoning. Evidence supports
the conclusion that providing mental-health care for the
mentally ill is a role that historically has been assumed
by the state.
{¶ 54} In Flagg Bros., Inc. v. Brooks (1978), 436
U.S. 149, 172, 98 S.Ct. 1729, 59 L.Ed.2d 185, Justice
Stevens dissented from a majority opinion that determined
whether certain acts were state action for purposes of the
Due Process Clause: “[T]he Court reasons that state action
cannot be found because the State has not delegated * * *
an exclusive sovereign function.” (Emphasis sic.) In
disagreeing with the majority, Justice Stevens argued that
the term “exclusive” was misused: “Whether termed
`traditional,’ `exclusive,’ or `significant,’ the state
power [at issue in Flagg Brothers] is exactly the sort of
power with which the Due Process Clause is concerned.” Id.
at 176, 98 S.Ct. 1729, 59 L.Ed.2d 185. While this case
involves a different question of state action and state
power, I agree with Justice Steven’s sentiments: whether
the government function is termed “traditional,”
“historical,” or “exclusive,” the fact is that here the
state assumed the responsibility of being the only provider
of mental-health services to any Ohio citizen in need of
those services.
{¶ 55} Though the majority does agree with the
relator, the Repository, that the aspect of Nova providing
mental-health care for the uninsured and others who are
unable to pay is a government function, I think the
evidence under the first prong of the
functional-equivalency test is much stronger. Here, Nova
was providing a service historically provided by the state
of Ohio, and I believe that the evidence under this prong
of the functional-equivalency test is in full support of
finding Nova to be a public office for purposes of the
Public Records Act.
{¶ 56} 2. Level of Government Funding. I agree that
the fact that an entity receives public funds does not
necessarily mean that the entity is a public office for
purposes of the Public Records Act. State ex rel. Strothers
v. Wertheim (1997), 80 Ohio St.3d 155,161, 684 N.E.2d 1239
(Moyer, C.J., dissenting).
{¶ 57} Nevertheless, the level of government funding
is a most important factor and should be given more weight
than other factors in the functional-equivalency test.
Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854
N.E.2d 193, at ¶ 46 (Moyer, C.J., dissenting). A
private entity that receives the level of public funding
that Nova received should not be permitted to keep the
public from knowing how it has managed its public
responsibilities. Id. at ¶ 47.
{¶ 58} Ninety-two percent of Nova’s revenue from
mental-health services came from its contract with the
Stark County CMHB. Further, the Stark County CMHB received
two-thirds of its $30.1 million total revenue from state
and local tax funding. As stated by the majority: “The
level of government funding is therefore significant,
especially considering that Nova ceased its operations
because of the loss of most of its revenues from the
contract with Stark County CMHB.” ¶ 33.
{¶ 59} 3. Extent of Government Involvement or
Regulation. I do not dispute the majority’s conclusion that
Nova was a self-directed, independent, private corporation.
I also agree that Stark County CMHB did not control the
day-to-day operation of Nova. Nevertheless, I do not agree
that these facts require a finding that the government did
not extensively regulate Nova.
{¶ 60} Under R.C. 340.03(A)(1), an alcohol,
drug-addiction, and mental-health services board (“ADAMH
board”) shall “[s]erve as the community mental health
planning agency for the county or counties under its
jurisdiction.” As one of its duties, an ADAMH board must
“[e]nter into contracts with public and private facilities
for the operation of facility services included in the
board’s community mental health plan.” R.C.
340.03(A)(8)(a). The ADAMH board must “audit * * * at least
annually all programs and services provided under contract
with the board.” R.C. 340.03(A)(6).
{¶ 61} The contract between Stark County CMHB and
Nova highlights the extent of regulation exercised by Stark
County CMHB. Under Section 6.3, Nova was required to make
available to Stark County CMHB all records and data
pertaining to payments, claims, and services rendered under
the agreement. Sections 7.1 and 7.2 of the contract state,
“All Provider organizations are expected to perform at
agreed upon levels,” and “All Providers are required to
measure outcomes with the instruments and in the manner
approved by the Board.” Section 8.4 of the contract states:
“The Provider [Nova] shall cooperate with the Board in all
monitoring and review activities necessary to ensure
compliance with the conditions of this agreement, Medicaid
requirements and the requirements of the Ohio Department of
Mental Health.”
{¶ 62} The contract between Stark County CMHB and
Nova is evidence that Stark County CMHB extensively
regulated Nova’s provision of mental-health services.
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.
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.
{¶ 63} Whether an Entity Was Created by the
Government. Here, the facts are straightforward: Nova was
created as a private, nonprofit corporation. However, as I
stated in Oriana House, I would give this factor very
little weight: “Surely even the majority would not hold
that a private entity that receives all of its funds from
public sources is not a public office. Again, the focus of
the test should be upon the importance of public funds to
the purposes and work of the private entity.” 110 Ohio
St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, ¶ 50
(Moyer, C.J., dissenting).
{¶ 64} If we balance the four factors of the
functional-equivalency test, the evidence establishes that
Nova is the functional equivalent of a public office and,
thus, is subject to the Public Records Act. The provision
of mental-health services has historically been a function
of government, Nova received a vast majority of its funding
from public sources, and the provision of mental-health
services continues to be heavily regulated by the
government. Further, the Public Records Act is to be
construed liberally in favor of broad access, and any doubt
is to be resolved in favor of disclosing records. State ex
rel. Plain Dealer Publishing Co. v. Cleveland, 106 Ohio
St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 20. In
my view, the evidence in this case and our duty to resolve
doubt infavor of broad access require the holding that Nova
is the functional equivalent of a public office for
purposes of the Public Records Act.
{¶ 65} Therefore, because I would grant the writ of
mandamus requested by the Repository and hold that Nova is
the functional equivalent of a public office and thus
subject to the Public Records Act, I respectfully dissent.
O’CONNOR and O’DONNELL, JJ., concur in the foregoing
opinion.