As discussed in Part 1, Plunderbund has brought a case against the Department of Public Safety because the agency is refusing to provide what are basic Highway Patrol incident reports. The state is claiming that these reports are security documents exempt form disclosure based upon a state level component of the Patriot Act designed to protect computers and infrastructure. The application of this section to these sorts of documents is overbroad and arbitrary.
While the national security argument can allow broad concealment of government data, moving government functions to allegedly private entities provides another method of concealment. The government has been privatizing a variety of functions for a long time. Fannie Mae, now infamous for its corruption that led to the 2008 financial collapse, was a hybrid “government sponsored entity” created in the 1930’s. At the state level, a variety of grants are provided to private entities to perform some of the functions of government. However, the grant process is different from the current privatization actions since state grants are highly monitored. But JobsOhio, John Kasich’s privatized arm of the Development Services Agency, was created to be opaque as an allegedly private corporation—created and funded by the government and exempt from public audit and document requirements.
Plunderbund readers are of course familiar with the controversy and litigation regarding JobsOhio. At some point, it will be determined to be unconstitutional. It is only a question of how long that will take. In the meantime, JobsOhio exists to transfer government wealth to corporations as quickly and secretly as possible. The Department of Development was not writing those checks fast enough, so the administration merely transferred duties handled by the Department of Development to this entity along with the state’s wholesale liquor business which provides them with billions of dollars to give to corporations.
JobsOhio was created by the General Assembly and is tightly intertwined with the Development Services Agency, the Commerce Department, the Ohio Tax Authority and the Ohio Third Frontier Commission. The Governor appoints JobsOhio’s Board of Directors. JobsOhio argues it is a private company because it statute says it is. But this is simply delusional. This is not the description of a private company.
This entity is clearly acting as a government agency, yet it is insulated from any sort of public scrutiny or control. The General Assembly acted in an unprecedented manner last year by changing the law to prevent the auditor from having any access to JobsOhio’s records. This bizarre machination was to protect JobsOhio’s status as a private entity. But private entities are not created by the General Assembly and do not demand their statute be rewritten in order to accommodate any secrecy they desire once they get their hands on billions of dollars of public assets.
The Ohio Supreme Court has developed the Oriana House test to determine whether the government is hiding its operations in a pseudo-private entity. If the entity performs a governmental function, is funded by the government, intertwined with the government and was created by the government or to avoid the requirements of the Public Records Act it will be declared the functional equivalent to a state agency and be required to comply with the Public Documents Act. But the General Assembly, knowing of this test, exempted JobsOhio.
JobsOhio exactly fits the Supreme Court’s requirements to be the functional equivalent of a state agency. So I filed suit to ask the Court to apply this test to JobsOhio and its disingenuous exemption. This is a very difficult case for them to tackle and at this point they will not consider the case beyond saying that there is an exemption. I filed a motion to reconsider asking the court to determine that there is a constitutional principle that prevents the government from hiding what are otherwise public documents in this way. The Supreme Court created the Oriana House test to protect the public from entities like JobsOhio that are created to hide government functions. But if the General Assembly can simply scam this precedent by creating any private entity it wants, giving it the function of a former state agency and then exempting it from the public documents act, core values and principles of democracy will be destroyed. Virtually any agency can be privatized and concealed using the JobsOhio model.
This isn’t the first time this model has been used. For example, Plunderbund and others have uncovered profiteering in charter schools. And, despite the fact that people are in jail for exploiting a privatized juvenile jail in Pennsylvania, Kasich proceeded to privatize some prisons here in Ohio. This is a dangerous trend and if we cannot convince the Supreme Court to strike down this JobsOhio’s exemption, expect privatization to pick up speed along with the transfer of public wealth into the coffers of the wealthy.
The Ohio Supreme Court has recognized, in past cases, the overarching constitutional principles that underlie the public documents act. In Kish v. Akron, the Court discussed the constitutional dimensions of the right of access in glowing terms: “In a democratic nation … it is not difficult to understand the societal interest in keeping governmental records open.” A fundamental premise of American democratic theory is that government exists to serve the people. In order to ensure that government performs effectively and properly, it is essential that the public be informed and therefore able to scrutinize the government’s work and decisions. As Thomas Jefferson wrote, “The way to prevent [errors of] the people is to give them full information of their affairs thro’ the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right.” (Citations omitted)
The question now is whether the Court will apply these principles to override the exemption for JobsOhio or will it allow the right to access to be eroded irreparably by allowing it to stand.
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