Brookville Equip. Corp. v. City of Cincinnati

• Decision Date: 15 August 2012
• Docket Number: APPEAL NO. C-120434,TRIAL NO. A-1204469
• Citation: 2012 Ohio 3648
• Parties: BROOKVILLE EQUIPMENT CORP., Plaintiff-Appellant, and THE CINCINNATI ENQUIRER, Intervenor-Appellee, and CAF USA, INC., Intervenor, v. CITY OF CINCINNATI, Defendant.
• Court: Ohio Court of Appeals

2012 Ohio 3648

BROOKVILLE EQUIPMENT CORP., Plaintiff-Appellant,andTHE CINCINNATI ENQUIRER, Intervenor-Appellee,andCAF USA, INC., Intervenor,

v.CITY OF CINCINNATI, Defendant.

APPEAL NO. C-120434

TRIAL NO. A-1204469

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Dated: August 15, 2012

OPINION.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 15, 2012

Dinsmore & Shohl LLP, Bryan E. Pacheco and Alan H. Abes, for Plaintiff-Appellant,

Graydon Head & Ritchey LLP and John C. Greiner, for Intervenor-Appellee.

Please note: This case has been removed from the accelerated calendar.

SYLVIA S. HENDON, Presiding Judge.

{¶1} Plaintiff-appellant Brookville Equipment Corporation ("Brookville") appeals the judgment of the Hamilton County Court of Common Pleas denying in part its request for a temporary restraining order and preliminary injunction prohibiting defendant city of Cincinnati (the "City") from releasing Brookville's unredacted proposals for the construction of the City's streetcar system to intervenor-appellee The Cincinnati Enquirer, or to anyone else, pursuant to a public-records request, during the pendency of Brookville's lawsuit against the City for declaratory judgment and permanent injunction. Because we determine that the trial court did not abuse its discretion in denying Brookville's request, we affirm that portion of the trial court's judgment.

Factual and Procedural Background

{¶2} In September 2011, the City issued a request for proposals for the construction of a streetcar system (the "RFP"). The RFP provided that documents submitted to the City as part of a proposal or best and final offer would be subject to disclosure under Ohio's Public Records Act. The RFP also provided that information a proposer believed to be exempt from disclosure, such as trade-secret information, be set apart on separate pages.

{¶3} Brookville, a manufacturer of various transportation vehicles, including streetcars, submitted two proposals in response to the RFP (the "Proposals"). At the request of the City, Brookville then submitted its best and final offer for the streetcar (the "BAFO"). Brookville redacted information it believed to be trade secrets from the BAFO.

{¶4} The Cincinnati Enquirer (the "Enquirer") made a public-records request to the City for proposals submitted in response to the RFP. The City gave Brookville and the other streetcar proposers an opportunity to remove trade-secret information from their proposals. Brookville redacted its purported trade secrets from the Proposals and BAFO, including information related to price, design, performance, manufacturing, and personnel, and those redacted documents were given to the Enquirer.

{¶5} Unsatisfied with the redacted documents, the Enquirer made a request to the City for "unredacted versions of the bid records." The City then informed Brookville of the City's intent to release the unredacted Proposals and BAFO, absent a court order. Subsequently, Brookville filed a verified complaint in the Hamilton County Court of Common Pleas requesting a declaratory judgment (1) that its unredacted Proposals and BAFO contain trade-secret information and (2) that the City cannot disclose this trade-secret information. Brookville also requested a temporary restraining order ("TRO"), preliminary injunction, and permanent injunction prohibiting the City from disclosing its unredacted Proposals and BAFO.

{¶6} Another streetcar proposer, United Streetcar, LLC, also filed suit against the City to protect its purported trade secrets, which was later consolidated with Brookville's action. A third streetcar proposer, CAF USA, Inc., filed a motion to intervene and also requested injunctive relief prohibiting disclosure of its trade secrets until such time as the City awarded a final contract. The Enquirer also moved to intervene in the action and filed a complaint requesting a declaratory judgment against the City that the streetcar proposals be made available for public inspection.

{¶7} The trial court held hearings on the motions for temporary and injunctive relief. Meanwhile, United Streetcar, LLC, reached a settlement with the Enquirer, and so the Enquirer voluntarily dismissed with prejudice its intervening complaint against the City as to that company's proposal. CAF USA, Inc., also reached an agreement with the Enquirer; Brookville, however, did not. After conducting an in camera review of the information in Brookville's Proposals and BAFO, the trial court denied Brookville's request for a TRO and preliminary injunction as to its baseline-pricing information, most of its technical and manufacturing information, and its staffing information. The trial court granted Brookville's motion for a TRO as to the component-pricing information and the remaining technical and manufacturing information until a preliminary-injunction hearing could be held.

{¶8} The trial court refused to stay that portion of its order denying Brookville relief, which would have allowed for immediate disclosure of information. Brookville then filed this appeal from that portion of the trial court's order denying its request for TRO and preliminary injunctive relief. We granted Brookville's motion to stay the order of the trial court pending Brookville's appeal to this court.

Temporary and Preliminary Injunctive Relief

{¶9} In its sole assignment of error, Brookville contends that the trial court erred in denying in part its request for a TRO and preliminary injunction.

{¶10} The purpose of a TRO or preliminary injunctive relief is to preserve the status quo. Acordia of Ohio, LLC v. Fishel, 1st Dist. No. C-100071, 2010-Ohio-6235, ¶ 9. This court reviews a trial court's decision granting or denying temporary or preliminary injunctive relief for an abuse of discretion. See Garono v. State, 37 OhioSt.3d 171, 173, 524 N.E.2d 496 (1988) ("The grant or denial of an injunction is solely within the trial court's discretion and, therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a clear abuse of discretion."). A trial court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶11} A party seeking a TRO or preliminary injunctive relief must show, by clear and convincing evidence, (1) a substantial likelihood that the party will prevail on the merits, (2) the party will suffer irreparable injury or harm if the requested injunctive relief is denied, (3) no unjustifiable harm to third parties will occur if the injunctive relief is granted, and (4) the injunctive relief requested will serve the public interest. Cincinnati v. Harrison, 1st Dist. No. C-090702, 2010-Ohio-3430, ¶ 8, citing The Proctor & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist.2000). A court must balance all four factors in determining whether to grant or deny injunctive relief, and no one factor is determinative. Toledo Police Patrolman's Assn., Local 10, IUPA, AFL-CIO-CLC, v. Toledo, 127 Ohio App.3d 450, 469, 713 N.E.2d 78 (6th Dist.1998).

Likelihood of Success on the Merits

{¶12} As to the first element of preliminary injunctive relief—likelihood of success on the merits—Brookville asserts that it is likely to prevail on the merits of its suit seeking a declaratory judgment and permanent injunction because the redacted portions of its Proposals and BAFO are trade secrets exempt from disclosure by Ohio's Public Records Act, R.C. 149.43. "Trade secrets are exempt from disclosure under the 'state or federal law' exemption of R.C. 149.43." State ex rel. Besser v.Ohio State Univ., 89 Ohio St.3d 396, 399, 732 N.E.2d 373 (2000), quoting R.C. 149.43(A)(1)(v). Trade secret, as defined in Ohio's Uniform Trade Secrets Act, R.C. 1333.61(D),

means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following: (1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. (2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

{¶13} The Ohio Supreme Court established a two-part test for determining whether information submitted to a public agency is exempt from disclosure as a trade secret in State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland, 63 Ohio St.3d 772, 776, 591 N.E.2d 708 (1992): (1) A court must review the documents in camera to determine whether they contain trade-secret information. If the documents do not contain trade-secret information, then they must be disclosed. (2) If the documents contain trade-secret information, however, then the court mustdetermine whether the statutory submission requirements of the public agency place the information in the public record. State ex rel. The Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 523-24, 687 N.E.2d 661 (1997).

{¶14} In Allright Parking, the court of appeals in a mandamus action had determined that certain documents submitted to the city of Cleveland as part of a tax-abatement application under R.C. 1728.06 were not exempt from disclosure as trade secrets under R.C. 149.43 because R.C. 1728.06, which governs such applications, provides that the applications are a matter of public record. 63 Ohio St.3d at 774. On direct appeal to the Ohio Supreme Court, the Court held that the court of appeals had erred in reaching its conclusion with regard to waiver of trade secrets without first conducting an in...