JobsOhio exempt from public records laws, state Supreme Court rules

12/3/2013

COLUMBUS — Ohio’s private non-profit economic development entity is exempt from public records laws that apply to government agencies, the state Supreme Court ruled today.

In its 6-0, two-paragraph ruling, the high court dismissed a public records lawsuit brought by attorney Victoria E. Ullman, an attorney who once represented the liberal advocacy group ProgressOhio in its separate challenge to the entity’s constitutionality. This ruling does not affect the latter case, which has been argued before the court and is awaiting a ruling.

The court found that “JobsOhio is specifically exempted from the requirements of” Ohio’s public records law.

The top priority of Republican Gov. John Kasich upon taking office in 2011, the private corporation was created to take on many of the economic development functions of the former Ohio Department of Development.

The General Assembly largely exempted the new entity from a number of laws that applied to its government predecessor, among them public records, state audit, and Ohio Ethics Commission oversight. Among its functions, the entity negotiates economic development deals on behalf of the state, using private contributions and the profit stream from Ohio’s lucrative liquor enterprise which it has leased from the state for $1.4 billion. Final decisions on tax credits and state grants, however, must still be signed off on by state government entities.

The governor and supporters of the legislation argued that the new entity must be free of at least some of the bureaucratic red tape that they claimed slowed decisions in its government predecessor. They’ve also argued that JobsOhio deals with sensitive business information that must be protected from public dissemination.

“JobsOhio is the functional equivalent of a government agency, or a division of an agency, and is therefore subject to the requirements of (public records law), regardless of attempts to shield it,” Ms. Ullman wrote in her complaint that repeated the argument that JobsOhio is unconstitutional.

“JobsOhio performs a government function and is funded by a lease of a government asset,” she wrote. “JobsOhio exists only due to its creation pursuant to (state law) and the liquor revenue granted to it… It was designed specifically to avoid public documents production or any other public scrutiny.”

JobsOhio, however, countered in its motion to dismiss that state law clearly exempts the entity from having to comply with Ms. Ullman’s request.

“This lawsuit, masquerading as a mandamus action to enforce a contrived request for records under (the public records law) is Relator's weakest effort yet to obstruct and undermine JobsOhio,” wrote Columbus attorney Aneca E. Lasley.

“Relator claims to be pursuing a request for records under… the very statute from which JobsOhio is expressly excepted,” she wrote. “But what Relator is really pursuing is a thinly disguised request for a declaratory judgment on the constitutionality of the JobsOhio statute coupled with a prohibitory injunction. This Court has long held that it lacks original jurisdiction over such matters.”

A decision on the constitutionality of JobsOhio will have to wait until the court decides whether ProgressOhio, the conservative 1851 Center for Constitutional Law, state Sen. Mike Skindell (D., Lakewood), and former state Rep. Dennis Murray (D., Sandusky) have standing in their separate lawsuit.

Justice Terrence O’Donnell did not participate in the Ullman case. He is not required to state a reason for his recusal, but Mr. Skindell was his Democratic opponent in the 2012 election and Justice O’Donnell has recused himself from that case.