COLUMBUS, Ohio (WCMH) – A property insurance conglomerate created by the state legislature to promote equity in insurance underwriting has been ordered to hand over records to a housing discrimination advocacy organization.
The Ohio Supreme Court unanimously ruled Aug. 3 that the Ohio FAIR Plan Underwriting Association is a state office and thus subject to public records requests. In turn, the FAIR Plan must fulfill a 2020 records request, even after the legislature passed a law to exempt the insurance group from releasing most of its records.
State lawmakers created the FAIR Plan in 1968 to underwrite policies for people who otherwise could not receive property or homeowners’ insurance, primarily due to companies rejecting applicants in urban areas. The group’s members are insurance companies, and it has a 12-member board of governors – including four appointed by the governor.
In April 2020, the Fair Housing Opportunities of Northwest Ohio filed a public records request with the FAIR Plan, seeking the group’s underwriting standards and a list of properties it accepted and rejected since 2015. The FAIR Plan responded that it was not a public office, yet offered to partially accommodate the request.
By July, Fair Housing Opportunities petitioned a state appeals court to demand the FAIR Plan turn over its records, as well as pay statutory damages and attorney fees. A court-appointed magistrate found the FAIR Plan to be a public office, but denied the monetary requests. Both the FAIR Plan and Fair Housing Opportunities objected to the recommendation – which the appeals court upheld.
The FAIR Plan argued that because insurance policies are not typical state offerings, it should not be considered a public office. But the Ohio Supreme Court disagreed.
In affirming the lower court’s ruling, the court rejected the notion that a state-established office needs to perform common government functions to qualify as a public entity. It pointed to the legislature’s creation of the group as evidence of its public status, as well as lawmakers’ choice at the time to exempt a few specific records created by the office.
“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,” wrote Justice Michael Donnelly.
The governance of the FAIR Plan further suggests it is a public office, the court found. While not considered state employees, the board of governors answers to the state superintendent of insurance. Application decisions can be appealed to the board, whose decisions can be appealed to the insurance superintendent. The superintendent’s final order can be challenged in court.
After both groups filed merit briefs in the case, in January Gov. Mike DeWine signed House Bill 45 into law, which, among other things, carved out a public records exemption for the FAIR Plan. But the law came too little, too late for a request already in motion, the Ohio Supreme Court ruled.
“Even if we assume that [HB 45] applies to the records at issue in this case, we have cautioned against interpreting a new enactment to apply retroactively to pending claims,” Donnelly wrote.
The court did not go so far as to grant damages and fees. Because the question of whether the FAIR Plan was a public office had never been presented to the court before, the justices found it prudent to allow the office to resolve the records request without penalty.
Read the court opinion below.