If it looks like a duck, talks like a duck and walks like a duck, it’s a duck. That’s essentially what the Ohio Supreme Court said last week in a unanimous ruling that ordered a non-profit foundation to follow the state’s open-records law.
Arguments over when and if nongovernment bodies become subject to “sunshine laws” are common in many states, particularly when large sums of public money are involved. In this case, the court ordered the OneOhio Recovery Foundation to release records related to its role in distributing $440 million in public funds received from opioid distributors.
Harm Reduction Ohio, a nonprofit group that works to prevent overdose deaths, brought the case, according to CourtNewsOhio.gov, the Supreme Court’s official website, Cincinnati.com and other media outlets.
Dennis Cauchon, Harm Reduction’s president, attempted to attend the first meeting of the foundation’s board of directors in May 2022, only to be told the public wasn’t allowed. Then he filed a public-records request asking for all the documents prepared for the group’s June meeting along with documents related to prior “unnoticed” board meetings. The board never responded, according to CourtNewsOhio.
The foundation was formed as part of an agreement with state officials to distribute $440 million in settlement funds after government bodies sued participants in the opioid supply chain, including drug makers and distributors, for their impact on the opioid epidemic.
Although the foundation tried to argue it wasn’t a public entity subject to the open-records law in Ohio, the court ruled that the foundation was the “functional equivalent” of a public office.
In Ohio, the courts have long used a four-part test to make this determination. According to the CourtNewsOhio release:
“To determine if a private entity should be treated as a public office, the Court considers four factors: whether the entity performs a governmental function; the level of government funding; the extent of governmental involvement; and whether the entity was created by the government or created to avoid being subject to the Public Records Act. The Court found three of the four factors support Harm Reduction’s argument that the foundation is the equivalent of a public office and one factor, the level of government funding, may meet the test.”
For example, 10 of the 29 foundation board members are political appointees, and the governor of Ohio appoints the executive director. The millions in opioid settlement money fit the definition of public funds. The government was extensively involved in its operation and it was created by the state government. The attorney general’s office provided $1 million in startup funds to operate the organization.
The court rejected OneOhio’s contention that its role was “unique and unprecedented” and showed little sympathy for some of the concerns raised about possible consequences if it were forced to follow the public-records laws, saying the concerns were unproven and speculative. Instead, the court determined the foundation’s “true function” wasn’t unprecedented: It existed to disburse public money.
Cincinnati.com reported that the $440 million was “part of an $808 million settlement reached in 2021 between Ohio Attorney General Dave Yost and three major drug distributors that were sued for their role in the opioid crisis.” Thirty percent of the funds go to local jurisdictions, 15 percent go to the state and the rest remain with OneOhio, which is supposed to make grants and support other measures to fight opioid abuse.
The court also ordered OneOhio to pay Harm Reduction’s court costs, but denied Harm Reduction’s request to have OneOhio pay its attorney fees.
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