State-created property insurance provider must give public access to records

A state-created association that assures property insurance is available in hard-to-serve urban areas is a "public office" and must make most of its records available to the public, the Supreme Court of Ohio ruled recently.

A Supreme Court majority found that since the Ohio Fair Plan Underwriting Association (OFP) was created by a state statute in the 1960s, it meets the definition of a "public office" and must provide records sought by Fair Housing Opportunities of Northwest Ohio.

The law creating the underwriting association requires all licensed private insurers selling basic property insurance policies in Ohio to be members of the OFP and issue policies to help cover urban properties denied coverage in the traditional insurance market.

Writing for the Court, Justice Michael P. Donnelly offered a number of reasons why the justices rejected the association's claim that it was not subject to the Ohio Public Records Act, R.C. 149.43. One reason, he explained, is that the legislature specifically exempted a specific category of OFP documents covering reports and communications related to property inspections.

"The General Assembly's declaration that certain records of the OFP are not 'public documents' evinces a legislative understanding that other categories of OFP's records are public documents," the opinion stated.

The decision affirmed a ruling by the Tenth District Court of Appeals. The Tenth District also denied a request by Fair Housing Opportunities, which does business as the Fair Housing Center, for damages and attorney fees. The Supreme Court determined that the association had a reasonable belief that it was not subject to the public records law, which allowed the office to deny the records without facing financial sanctions.

Justice Patrick F. Fischer, R. Patrick DeWine, Melody Stewart, Jennifer Brunner, and Joseph T. Deters joined Justice Donnelly's opinion. Chief Justice Sharon L. Kennedy concurred in judgment only.

Group Denies Its Records Are Public

State lawmakers enacted R.C. 3929.43 to establish the underwriting association with the stated purpose of helping applicants in urban areas secure basic business property or homeowners' insurance, and to administer a program to provide reasonable coverages when insurance cannot be obtained in the private market.

The association is governed by a 12-member board, of which four members are appointed by the governor. The remaining eight members are representatives of insurance companies that are members of the association. The association's employees are not state employees and not members of a state retirement plan.

Under R.C. 3929.44(A) any person unable to obtain basic property insurance in an urban area can apply to the OFP for coverage. The association inspects the property, and if it is insurable, then an OFP policy is provided for a premium. The plan's assets cover all the insurance claims, and no state government funds are involved in operating the insurance plan.

In April 2020, the Fair Housing Center sent a public records request to the association for a number of documents, including every address that received OFP coverage since 2015 and every address denied coverage. The Fair Housing Center also wanted records explaining why the plan adopted certain coverage guidelines.

The association responded by stating it was not a public agency and not subject to public records requests. It stated that some of the information requested "may violate [OFP's] customer/client privacy rights." The association offered to discuss ways the Fair Housing Center could receive some of the requested information.

Center Seeks Court Order to Release Records

The Fair Housing Center asked the Tenth District Court of Appeals for a writ of mandamus ordering the association to provide the records as requested, and sought attorney fees and damages permitted under R.C. 149.43. The Tenth District found the agency must provide the records, but denied the damages and fees.

The association appealed the decision to the Supreme Court. The center cross-appealed

the Tenth District's refusal to award damages and attorney fees.

Supreme Court Considers Whether Association Is Public Office

R.C. 149.43(A)(1) defines a "public record" as a record kept by "any public office." Justice Donnelly wrote the dispute centers on whether the underwriting association is a "public office" under the Public Records Act. Part of the definition of a public office is any "agency, institution, or entity establish by the law of this state for the exercise of any function of government."

The majority opinion stated that the association is a public office. It was created by a statute, R.C. 3929.43, and carries out a function of government. The opinion noted the OFP argued that it is not a "public office" because it does not perform a governmental function. The association contended that providing property insurance is not a historical government function, but rather a business carried out by private companies. Since the OFP operates like a private insurer, it is not subject to the Public Records Act just as private insurance companies are not subject to the law, the association argued.

The Court countered that an entity does not have to provide an historically governmental function to be considered a public office, citing a case where a county-owned hospital unsuccessfully argued the records of its operations were not public records.

"In other words, the government's undertaking of a function through an entity established by law necessarily makes that function a function of government, even if the function is not historically governmental," the opinion stated.

The Court noted that lawmakers exempted inspection records, indicating it must have believed other OFP records were public. And lawmakers also allowed those denied coverage to appeal to the state's superintendent of insurance. Any decision of the superintendent could be appealed to a common pleas court. The Court stated that any appeal process that could lead to judicial review of an association decision is further evidence that the OFP was created to perform a government function.

Change in Law Does Not Close Off Records

The Court noted that as the case was pending, state lawmakers added a provision to House Bill 45 in 2023 that declared records created, held, or pertaining to the OFP were not public records and were confidential. In addition, the Court stated, the new law's exemption did not apply to records "to the plan of operation or other information required to be filed with the superintendent."

Justice Donnelly explained the R.C. 3929.43(J)(2) meant that any of the association's "insurance-related records" are public records. He also explained that enacting the new law undercuts the association's claim that it is not a public office. Any effort by lawmakers to restrict access to the association's records indicates that records were considered to be public.

Since the new law does not indicate it applies retroactively, it does not apply to the Fair Housing Center's request, filed three years before passage of H.B. 45, the Court concluded.

The case is cited 2022-0244. State ex rel. Fair Housing Opportunities of Northwest Ohio v. Ohio Fair Plan, Slip Opinion No. 2023-Ohio-2667.