732 N.E.2d 373 (Ohio 2000), 99-394, State ex rel. Besser v. Ohio State Univ.

Docket Nº:99-394.
Citation:732 N.E.2d 373, 89 Ohio St.3d 396, 2000-Ohio-207
Opinion Judge:Per Curiam.
Party Name:The STATE ex rel. BESSER et al., Appellants, v. OHIO STATE UNIVERSITY et al., Appellees.
Attorney:Kenneth R. Besser, Columbus, for relators. Kenneth R. Besser, for relators. Betty D. Montgomery, Attorney General, Mark R. Weaver, Special Counsel to the Attorney General, Lisa Wu Fate and Jan Alan Neiger, Assistant Attorneys General, for respondents.
Judge Panel:MOYER, C.J., DOUGLAS, FRANCIS E. SWEENEY, SR., PFEIFER and COOK, JJ., concur. RESNICK and LUNDBERG STRATTON, JJ., concur in part and dissent in part. LUNDBERG STRATTON, J., concurring in part and dissenting in part.
Case Date:August 09, 2000
Court:Supreme Court of Ohio

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732 N.E.2d 373 (Ohio 2000)

89 Ohio St.3d 396, 2000-Ohio-207

The STATE ex rel. BESSER et al., Appellants,


OHIO STATE UNIVERSITY et al., Appellees.

No. 99-394.

Supreme Court of Ohio

August 9, 2000.

[89 Ohio St.3d 397] Submitted May 9, 2000.

Page 374

[Copyrighted Material Omitted]

Page 375

On February 18, 1999, relator Kenneth R. Besser ("Besser"), an attorney, sent a letter to respondent Ohio State University ("OSU"), stating that he represented his wife, relator Susan L. Besser, M.D., and Bexley Family Medicine in their

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lawsuit against OSU, and that he was requesting under R.C. 149.43, Ohio's Public Records Act, that OSU make available for inspection "all records of OSU concerning or relating to OSU's acquisition of Park Medical Center," a private Columbus hospital. OSU had created and collected records concerning the acquisition.

On February 23, the Bessers filed this action for a writ of mandamus to compel respondents, OSU, OSU Hospitals Board, Manuel Tzagournis, M.D., OSU Vice-President for Health Sciences, OSU Hospitals Board, Grayce M. Sills, Chairperson of the OSU Hospitals Board, and R. Reed Fraley, M.D., Secretary of the OSU Hospitals Board and Executive Director of the Ohio State Hospital Systems (collectively referred to as "OSU"), to provide access to the requested records under R.C. 149.43. The Bessers then voluntarily dismissed their pending lawsuit against OSU in the Court of Claims, and OSU provided them with access to requested minutes of OSU Hospitals Board and OSU Strategic Planning Committee meetings relating to the acquisition.

The matter was referred to the court's mediation program, and during that process, on April 8, 1999, OSU publicly announced its acquisition of Park Medical Center. Following mediation, the matter was returned to the regular docket, and we granted an alternative writ and issued a schedule for the presentation of evidence and briefs. 86 Ohio St.3d 1439, 713 N.E.2d 1050. We also dismissed as moot the Bessers' claims relating to OSU Hospitals Board and OSU Strategic Planning Committee minutes. Id.

The parties clarified the scope of the Bessers' records requests and OSU provided them with some responsive records relating to the Park Medical Center acquisition. OSU withheld the remainder of the requested records, claiming that R.C. 149.43(A)(1)(p) (now R.C. 149.43[A][1][q] [see Am.Sub.S.B. No. 55, Baldwin's Ohio Legislative Service Annotated (Vol.7, 1999), L-904] ) and 149.43(A)(1)(m) and (5) exempted them as trade secrets, intellectual property, and attorney-client privileged material. The Bessers claimed that (1) although former R.C. 1333.51 exempted the disclosure of trade secrets under R.C. 149.43, the repeal of former R.C. 1333.51 in 1996 removed any trade secrets exemption, (2) public entities like [89 Ohio St.3d 398] OSU could not have trade secrets, and (3) OSU had not established that the records withheld from the Bessers constituted trade secrets.

Upon a consideration of the evidence and briefs, we held that "trade secrets remain exempt from disclosure under R.C. 149.43(A)(1)(p) (now R.C. 149.43 [A][1] [q] ) and that governmental entities like OSU can have trade secrets, but that respondents should submit the records they claim to be exempt as trade secrets and intellectual property records to the court under seal for an in camera review." State ex rel. Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 543, 721 N.E.2d 1044, 1051. We also ordered OSU to submit records that they have already provided to the Bessers in response to their public records request, upheld OSU's claimed exemption for two of the requested records because they were privileged attorney-client records, and denied the Bessers' request for attorney fees. Id., 87 Ohio St.3d at 542-543, 721 N.E.2d at 1050-1051.

This cause is now before the court upon our in camera review of the records.

Kenneth R. Besser, Columbus, for relators.

Betty D. Montgomery, Attorney General, Mark R. Weaver, Special Counsel to the Attorney General, Lisa Wu Fate and Jan Alan Neiger, Assistant Attorneys General, for respondents.


In reviewing the records withheld by OSU, the precept guiding our analysis is that the inherent, fundamental policy of R.C. 149.43 is to promote open government, not restrict it. State ex rel. The Miami Student v. Miami Univ.

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(1997), 79 Ohio St.3d 168, 171, 680 N.E.2d 956, 959. Consistent with this policy, exceptions to disclosure must be strictly construed against the public records custodian, and the custodian bears the burden to establish the applicability of an exception. State ex rel. McGowan v. Cuyahoga Metro. Hous. Auth. (1997), 78 Ohio St.3d 518, 519, 678 N.E.2d 1388, 1389.

With these guidelines in mind, we initially consider OSU's assertion that two of the withheld records are excepted from disclosure as intellectual property records under R.C. 149.43(A)(1)(m). The intellectual-property-record exception was designed to prevent private persons from using the Public Records Act to appropriate intellectual property for private gain. State ex rel. Rea v. Ohio Dept. of Edn. (1998), 81 Ohio St.3d 527, 533, 692 N.E.2d 596, 602. R.C. 149.43(A)(5) defines "intellectual property record" as "a record, other than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of higher learning in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution [89 Ohio St.3d 399] alone or in conjunction with a governmental body or private concern, and that has not been publicly released, published, or patented." (Emphasis added.)

In construing R.C. 149.43(A)(5), the words used must be construed in accordance with rules of grammar and common usage. Nibert v. Ohio Dept. of Rehab. & Corr. (1998), 84 Ohio St.3d 100, 102, 702 N.E.2d 70, 72. Financial records relate to the business system of managing money and investments, and administrative records concern the management and performance of the executive duties of a government, institution, or business. See Garner, Black's Law Dictionary (7 Ed.1999) 44 and 644; Webster's Third New International Dictionary (1986) 28 and 851.

Under R.C. 149.43(A)(5), financial and administrative records do not constitute intellectual property records that are exempt from disclosure under R.C. 149.43. The two records claimed by OSU to be intellectual property records are OSU's preliminary business plan and pro forma for the Park Medical...

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