Relator v. Metroparks

• Decision Date: 09 September 2014
• Docket Number: No. 100761,100761
• Citation: 2014 Ohio 3914
• Parties: JOSEPH SALEMI RELATOR v. CLEVELAND METROPARKS RESPONDENT
• Court: Ohio Court of Appeals

2014 Ohio 3914

JOSEPH SALEMI RELATOR v. CLEVELAND METROPARKS RESPONDENT

No. 100761

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

September 9, 2014

JOURNAL ENTRY AND OPINION

JUDGMENT:

WRIT GRANTED IN PART AND DENIED IN PART

Writ of Mandamus

Order No. 477364

Motion No. 471447

FOR RELATOR

Joseph Salemi

10121 Northfield Road

Northfield, OH 44067

ATTORNEYS FOR RESPONDENT

Rosalina M. Fini

Law Director, Cleveland Metroparks

4101 Fulton Parkway

Brooklyn, OH 44144

Jeffrey S. Appelbaum

Anthony J. Rospert

Nicole K. Wilson

Thompson Hine L.L.P.

3900 Key Center

127 Public Square

Cleveland, OH 44114

TIM McCORMACK, J.:

{¶1} Joseph Salemi has filed a complaint for a writ of mandamus through which he seeks the release of records pursuant to R.C. 149.43. Salemi has requested records from the Cleveland Metroparks ("Metroparks"). The Metroparks is the operator of eight golf courses located within northeast Ohio. Salemi is the owner and architect of Boulder Creek Golf Club, a golf course that directly competes with the eight golf courses operated by the Metroparks. For the following reasons, we grant Salemi's request for a writ of mandamus in part, and deny the request in part. In addition, we deny Salemi's request for attorney fees and statutory damages.

I. Facts

{¶2} On September 25, 2013, Salemi sent to the Metroparks, by email, a request to provide the following:

(1) "The email addresses for persons that have signed up for email lists for all golf courses owned or operated by the Cleveland Metro Parks currently on your data base." (Request 1)

(2) "The email addresses for persons that have booked tee times on any electronic tee sheet software currently on your data base." (Request 2)

(3) "The names of any persons, businesses or corporations that have had outings or events at any of the golf courses owned or operated by the Cleveland Metro Parks for the years 2012 and 2013." (Request 3)

{¶3} On September 25, 2013, the Metroparks responded to Salemi's initial request for records and indicated that the records would be provided in either paper or electronic form. On October 15, 2013, the Metroparks declined to provide any requested documents and stated that "[p]ursuant to State ex rel. Luken v. Corp. for Findlay Mkt. ofCincinnati, 135 Ohio St.3d 416, 2013[-]Ohio[-1532, 988 N.E.2d 546], Cleveland Metroparks will not release the requested information."

{¶4} On October 18, 2013, Salemi made a second request, by email, for the following records:

(1) "A copy of the marketing program for the golf courses owned by the Cleveland Metro Parks." (Request 4)

(2) "Copies of all checks spent to market the golf courses." (Request 5)

(3) "A copy of the business plan to market the golf courses." (Request 6)

(4) "A copy of any and all contracts for the marketing of the golf courses with any private companies." (Request 7)

(5) "A list of the persons employed by the Metro Parks for the marketing of the golf courses." (Request 8)

(6) "A copy of their job description and any written employment contracts." (Request 9)

(7) "A list of those persons who have access to the email data base, lists of outings and golf leagues." (Request 10)

(8) "Any written directives concerning access to the above data bases and protection of the information" (Request 11)

(9) "Any companies who have shared the above information through any agreements with the Metro Parks." (Request 12)

(10) "A copy of the agreements with the Golf Channel or any other tee time reseller, including but not limited to Golfnetwork18 and Golf links, for tee time reservations and marketing." (Request 13)

(11) "A copy of the minutes, meetings, notes, and any other emails and letters concerning the marketing of the golf courses." (Request 14) {¶5} On November 1, 2013, the Metroparks responded to Salemi's second request for documents and declined to provide any additional documents and stated that:

After reviewing your request from October 18, 2013, all of your requests are related to obtaining information that has to deal with Cleveland Metroparks marketing of our golf services. As such, we are not required to disclose this information pursuant to [R.C.]149.43(A)(1)(p) since this relates to Cleveland Metroparks trade secrets. Regarding your request #8: "Any written directives concerning access to the above data bases and protection of the information," we will not disclose this information since it is protected by the attorney-client privilege.

{¶6} On December 16, 2013, Salemi filed a complaint for a writ of mandamus premised upon the failure of the Metroparks to provide the requested 14 categories of records. On January 14, 2014, the Metroparks filed a motion to dismiss Salemi's complaint for a writ of mandamus. Attached to the motion to dismiss was the sworn affidavit of Sanaa Julien, the Chief Marketing Officer for the Metroparks, ("affidavit I"). Affidavit I, provided in pertinent part that:

¶ 6. The Metroparks collects information from its golf customers and potential golf customers through a number of sources, including soliciting subscribers for its "On the Fairways" newsletters and its Facebook page, holding contests and special events, conducting surveys, and offering "Bonus Rounds" as a frequent-user rewards program for golfers at Metroparks courses. Users who provide information through these sources have the ability to opt-out of future contact, and the Metroparks' privacy policy is posted on the website.

¶ 7. This customer information (including email addresses) is stored in a program called "Constant Contact" (and will be referred to here as the "Customer List"). Constant Contact allows the Metroparks to conduct online marketing campaigns using the Customer List. This program has been refined and maintained by the Metroparks through considerable expense and effort.

¶ 8. The Metroparks uses the Customer List, as well as its own deep analysis of demographic information and its experience in the sports and entertainment market, to create a marketing program and business plan (the "Marketing Plan") to directly target existing Metroparks customers and expand the Metroparks' customer base. I have significant knowledge of and experience in the sports and entertainment market, and have applied that knowledge and experience to create the Marketing Plan.

¶ 10. The Marketing Plan is not an off-the-shelf plan that could apply to any industry or "any man or woman aged 18 to 65." It is specific to golfing customers in Northeast Ohio, and is so highly developed that the Metroparks is able to market specific courses to existing and potential customers depending on their proximity to one of the eight Metroparks courses and their past golfing habits.

* * *

¶ 12. The Customer List is not available to the public.

¶ 13. The Customer List is not available to the Golf Administration Department.

¶ 14. The Customer List is only available to seven members of the Marketing Department: one officer-level (me) and two director-level members who can authorize access of the information to others, and four specialist-level members who can utilize the information for online marketing campaigns and traditional marketing media.

¶ 15. The Marketing Plan is not available to the public, and has not been presented to the public or provided to the Metroparks' Board.

¶ 16. Access to the marketing program is strictly limited to four Metroparks employees — me, the Chief Executive Officer, the Marketing director, and the Golf Director. We keep the Marketing Plan on our hard drives, not a shared drive available to other Metroparks employees.

¶ 17. Metroparks employees in both the Marketing and Golf Departments have been instructed to protect the Customer List and Marketing Plan from disclosure to third-parties.

¶ 18. The Metroparks has procedures in place to ensure that all of this information is protected both in third-party contracts and when public records requests are made.

¶ 19. The Metroparks employs a belt-and-suspend[er]s approach to dealing with its contractual partners, including vendors, when it comes to sharing specific information relating to the Marketing Plan. The Metroparks has not provided the Customer List or the Marketing Plan to any of its contractual partners. Specific details relating to its Marketing Plan have been provided in a limited manner to a select number of vendors who help Metroparks create content based upon the Plan, such as television commercials and radio ads. When this occurs, however, the Metroparks has protected the information from further disclosure.

{¶7} On February 3, 2014, this court converted the Metroparks' motion to dismiss into a motion for summary judgment as permitted by Civ.R. 12(B). On February 20, 2014, Salemi filed his brief in opposition to the Metroparks' motion for summary judgment.

{¶8} On March 19, 2014, this court ordered that the Metroparks file a supplemental brief, in support of its motion for summary judgment, based upon the need to further clarify the Metroparks' stance as to the basis for declining to provide any of the 14 categories of requested records. Attached to the Metroparks' supplemental brief was a second sworn affidavit of Sanaa Julien, ("affidavit II"). Affidavit II, provided in pertinent part that:

¶ 4. The definition of "Customer List" in my January 14, 2014 Affidavit includes Customer names, email addresses, and other information [the] Metroparks collects from "persons that have booked tee times on any electronic tee sheet software" (as I understand that phrase) and from "person, business, or corporations that have had outings or events at any of the golf courses owned or operated by the Cleveland Metro Parks [sic] for the years 2012 and 2013."

¶ 5. Metroparks does not provide customer information to any tee time reseller.

¶ 6. Metroparks does not keep in the ordinary course of business a specific list "of the persons employed by the Metro parks [sic] for the marketing of the golf courses."

¶ 7. Metroparks does not have any written employment contracts with "the persons employed by...