State ex rel. Toledo Blade Co. v. Univ. of Toledo Found.

Decision Date16 December 1992
Docket NumberNo. 91-1785,91-1785
Citation602 N.E.2d 1159,65 Ohio St.3d 258
Parties, 78 Ed. Law Rep. 499, 20 Media L. Rep. 2220 The STATE ex rel. TOLEDO BLADE COMPANY v. UNIVERSITY OF TOLEDO FOUNDATION et al.
CourtOhio Supreme Court

SYLLABUS BY THE COURT

1. A private nonprofit corporation that acts as a major gift-receiving and soliciting arm of a public university and receives support from public taxation is a "public office" pursuant to R.C. 149.011(A), and is subject to the public records disclosure requirements of R.C. 149.43(B).

2. The names of donors to such a gift-receiving arm of a public university are "public records" pursuant to R.C. 149.43(A)(1), and are not subject to any exception to disclosure.

This action in mandamus was brought by relator, the Toledo Blade Company ("the Blade"), to compel respondents, the University of Toledo Foundation ("the foundation") and the chairman of its board of trustees, to produce the names of donors to the foundation. Respondent foundation exists to solicit and receive donations for the benefit of the University of Toledo. Relator publishes a newspaper of general circulation, The Toledo Blade.

On July 24, 1991, the Blade requested that the foundation make available for inspection certain of its financial records, including transaction ledgers for the years 1986 through 1991, pursuant to R.C. 149.43. The foundation agreed in a letter dated August 5, 1991 to produce the records, but denied that it was a "public office" and thus subject to R.C. 149.43. In a letter dated August 23, 1991, the foundation stated that it would produce the records only after redacting the names of, and any personal information identifying, donors.

Relator initiated this original action in mandamus in this court on September 4, 1991 to compel respondents to supply the names of the donors to the foundation.

Fritz Byers, for relator.

Shumaker, Loop & Kendrick, Timothy C. McCarthy and Thomas G. Pletz, for respondents.

Baker & Hostetler, David L. Marburger and Kathryn Young Connors, urging granting of the writ for amici curiae, Cincinnati Enquirer, Inc. et al.

MOYER, Chief Justice.

R.C. 149.43(C) provides that a person aggrieved by the failure of a governmental unit to make available a public record may bring a mandamus action in this court pursuant to its original jurisdiction under Section 2, Article IV of the Ohio Constitution. Respondents do not challenge this court's jurisdiction over this matter.

This case presents two related issues: (1) whether the foundation is a "public office" pursuant to R.C. 149.011(A) and thus subject to the open-records requirements of R.C. 149.43; and (2) if so, whether the names of donors to the foundation are public records not excepted from the disclosure requirements of R.C. 149.43. We hold that the foundation is a public office, and the records in question are public.

R.C. 149.43(B) provides, in part, that "[a]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours."

R.C. 149.43(A)(1) defines "public record" as " * * * any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law."

R.C. 149.011(G) further defines "records" as " * * * any document * * * created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office."

R.C. 149.011(A) defines "public office" as " * * * any state agency, public institution, political subdivision, or any other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government."

Thus, if the foundation is a public office, and the names of its donors are public records not falling within any enumerated exception, it must produce them for inspection by the Blade.

An entity need not be operated by the state, or a political subdivision thereof, to be a public office under R.C. 149.011(A). In State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313, this court held that a nonprofit corporation operating a city hospital under a lease with the city was a public office under R.C. 149.011(A). In Fostoria, the city of Fostoria had created a public hospital, and had administered it for approximately thirty years. The city then leased the building and equipment to the Fostoria Hospital Association ("association"), a private, nonprofit corporation, which took over the hospital's operations.

The association was required to report to the city regarding all of its operations, income, and expenses, and it paid no rent to the city. In addition, the city agreed to give the association all gifts and bequests made to the hospital. The city made improvements and bought equipment with tax money. This court held that the association was a public office under R.C. 149.011(A).

The Fostoria court specifically rejected the argument that R.C. 149.43 did not apply because the association was a private, nonprofit corporation. It held instead that because the association performed a public function and was supported by public tax money, it was a public institution within the meaning of R.C. 149.011(A).

In 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, this court held similarly that a public hospital that serves city residents and is supported by public taxation is a public office pursuant to R.C. 149.43. In our opinion, we stated that doubts as to the "public" status of any entity should be resolved in favor of finding it subject to the disclosure statute (citing Wooster Republican Printing Co. v. Wooster [1978], 56 Ohio St.2d 126, 10 O.O.3d 312, 383 N.E.2d 124). Id. at 110, 529 N.E.2d at 445.

Respondents assert that the foundation is not a public office under R.C. 149.011(A). They argue that because the foundation plays no policy-making role in the university, employs and pays its own staff, pays rent to the university for its office space, and is supported by private donations, there is sufficient insulation between it and the university to exempt it from R.C. 149.43. Respondents cite a West Virginia case, 4-H Road Community Assn. v. West Virginia Univ. Found., Inc. (1989), 182 W.Va. 434, 388 S.E.2d 308, for the proposition that a private, nonprofit corporation that raises funds for a public university is not subject to a public records statute.

Apart from the fact that the cited case does not bind this court, it is distinguishable. The West Virginia Freedom of Information Act defines a "public body" as several specific offices, plus " * * * any other body which is created by state or local authority or which is primarily funded by the state or local authority." W.Va.Code 29B-1-2(3). In holding the fund-raising entity exempt from the open-records law, the 4-H Road court noted that the foundation held only funds given directly to it, that gifts given directly to the university were given not to the foundation but were placed into the state treasury, that the employees were paid by the foundation and did not participate in any state benefit or wage plans, and that the offices were not located on the university campus. Id., 388 S.E.2d at 309-310.

In the instant case, the foundation has closer ties with the university. The foundation is the successor to two former gift-receiving entities for the university. In 1960, the University of Toledo Alumni Foundation ("the alumni foundation") was incorporated to receive and solicit gifts for the university. In 1974, the University of Toledo Corporation ("the corporation") was incorporated for the same purpose. In October 1990, these two entities merged to form the foundation, whose articles of incorporation are identical to the amended articles of the corporation. They provide that the foundation's sole purpose is to receive, hold, invest and administer property and to spend funds for the benefit of the university. Throughout the lifetimes of both predecessor entities, they operated out of university office space, for which they paid no rent. The university paid the wages and benefits of their employees. Clearly, then, these entities received support from public taxes. See Fostoria, 40 Ohio St.3d at 12, 531 N.E.2d at 316 (rent-free use of a building owned by public body constitutes support by taxation). These facts demonstrate that the predecessor foundations operated essentially as gift-receiving and soliciting arms of the university, despite their status as private, nonprofit corporations.

Respondents portray the present foundation as separate and distinct from its predecessor entities. After its creation in 1990, the newly formed foundation took steps to distance itself from the university. In 1991, the foundation entered into an agreement with the university to pay rent for its office space, with the term beginning upon completion of certain renovations. The cost of renovations was to be applied toward rent. In March 1991, the foundation agreed to reimburse the university for certain expenses the university incurred in operating the foundation, retroactive to the date of the foundation's creation. Even after these arrangements, however, the university continued to pay Public Employees...

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