Salemi v. Metroparks
Decision Date | 24 March 2016 |
Docket Number | No. 2014–1801.,2014–1801. |
Citation | 2016 Ohio 1192,145 Ohio St.3d 408,49 N.E.3d 1296 |
Parties | SALEMI, Appellant, v. CLEVELAND METROPARKS, Appellee. |
Court | Ohio Supreme Court |
Joseph Salemi, pro se.
Thompson Hine, L.L.P., Jeffery R. Appelbaum, and Anthony J. Rospert, Cleveland; and Rosalina M. Fini, Medina, for appellee.
{¶ 1} Relator, Joseph Salemi, appeals from a decision of the Eighth District Court of Appeals that granted in part and denied in part a writ of mandamus in connection with his request for records from public golf courses operated by Cleveland Metroparks, which had declined to provide the records, asserting that they were trade secrets or protected by the attorney-client privilege and exempt from disclosure. Salemi has also filed a motion in this court seeking an order to show cause why Metroparks and its attorneys should not be held in contempt.
{¶ 2} Salemi runs the Boulder Creek Golf Club. On September 25, 2013, he sent an e-mail to Metroparks requesting three categories of its records: (1) the e-mail addresses of persons who had "signed up for email lists" for all golf courses owned or operated by Metroparks, (2) the e-mail addresses of persons who had booked tee times electronically, and (3) the names of people or entities that had outings or events at any Metroparks golf course in 2012 or 2013. Metroparks denied that request. On October 18, 2013, Salemi made a second request, seeking 11 categories of records primarily dealing with the marketing program for the Metroparks golf courses. Metroparks also denied that request, stating that it was not required to disclose these records because they contained trade secrets or were protected from disclosure by the attorney-client privilege.
{¶ 3} Subsequently, Salemi filed this mandamus action in the court of appeals. Metroparks moved to dismiss, arguing that Salemi had failed to bring the action in the name of the state and to verify his complaint with an affidavit as required by R.C. 2731.04 and further asserting that his claims failed on the merits. Rather than ruling on that motion, the court converted it to one for summary judgment and ordered additional briefing.
{¶ 4} At that point, Salemi filed an amended complaint with a corrected caption and an affidavit verifying the facts alleged in the amended complaint, but the court of appeals struck it from the record for failure to comply with Civ.R. 15(A), because Salemi had not obtained leave from the court or written consent from Metroparks to amend his complaint. Salemi then filed a motion pursuant to Civ.R. 15(A) for leave to file an amended complaint "to cure procedural deficiencies," which Metroparks did not oppose. The court of appeals denied that motion, stating that it would not permit Salemi to "add additional claims to his complaint * * * at this juncture in the proceedings," and continued to accept arguments regarding the merits of the claims in the original complaint.
{¶ 5} In support of its motion for summary judgment, Metroparks submitted two affidavits from Sanaa Julien, its chief marketing officer, who averred that Metroparks collects information from its golf customers and potential customers through a number of sources, e.g., it solicits subscribers for its newsletters and Facebook page, holds contests and special events, conducts surveys, and offers a rewards program for frequent users of its golf courses. It retains this information in a database that has been refined and maintained by Metroparks at considerable expense and effort. Metroparks conducts online marketing campaigns with its customer list and uses it, in conjunction with other information, to create a marketing plan to target existing customers and to expand its customer base. The plan is specific to golfing customers in Northeast Ohio, and the marketing efforts of Metroparks have reduced the amount of tax dollars used to subsidize its golf courses and has led to the generation of revenue.
{¶ 6} Julien also averred that Metroparks only makes its customer list available to seven members of its marketing department. The list is not available to the public or provided to contractual partners of Metroparks, and it instructs its employees to protect the list from disclosure to third parties and has procedures in place to ensure that its information is protected in third party contracts and when public-records requests are made. Metroparks has written directives for its employees regarding access to and protection of the information in its customer database that were issued by in-house legal counsel for the purpose of providing legal advice to employees of Metroparks regarding how to protect its trade secrets. These directives are confidential between Metroparks and its legal counsel.
{¶ 7} Salemi moved the court of appeals to strike the Julien affidavits, arguing they failed to comply with Civ.R. 56(E) and contained false information; the court denied that motion. Salemi also filed his own affidavits in opposition to summary judgment averring that Metroparks was allowing two entities, Golfnow and Golf18network, to share names, e-mail addresses, and other personal information of its customers through tee-time-reservation systems based on statements made by employees of those entities and information Salemi found on the internet.
{¶ 8} The court of appeals granted in part and denied in part the request for a writ of mandamus without conducting the in camera review requested by Salemi. The court divided the 14 categories of requested documents into five groups for analysis and held that the first and second groups, which included records regarding the names and e-mail addresses of customers and Metroparks' golf course marketing plan, were trade secrets that Metroparks did not need to disclose. The court held that Metroparks failed to establish that documents in the third group, which included contracts with private companies, were exempt from disclosure but that the requests as to those documents were overly broad and unreasonable in scope. The court ordered that Metroparks allow Salemi to revise those requests to limit them to a specific time period and stated that any production of documents by Metroparks in response to the revised requests would be "subject to redaction." The fourth group consisted of requests for documents the court of appeals found either did not exist or had already been produced. The fifth group dealt with a request for written directives governing access to and protection of Metroparks' customer list; the court held that the directives were protected by attorney-client privilege.
{¶ 9} "Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6 ; R.C. 149.43(C)(1). Although "[w]e construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records," State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6, the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence, State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus.
R.C. 2731.04 requirements
{¶ 10} As a preliminary matter, we address Salemi's failure to comply with R.C. 2731.04, which provides: "Application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit."
{¶ 11} Here, Metroparks raised Salemi's failure to bring the action in the name of the state on his relation and to verify the complaint via affidavit. Salemi eventually sought leave to amend his complaint to cure these procedural deficiencies, but the court of appeals denied that motion on the ground that Salemi sought to belatedly add claims to his complaint, which he did not. The ruling of the court of appeals misstates the facts and contravenes both Civ.R. 15(A)'s mandate that courts "shall freely give leave [to amend a pleading] when justice so requires" and this court's liberal position on amendments, as explained in Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382. Nonetheless, Salemi has not appealed the decision denying his motion for leave to amend.
{¶ 12} This court has never directly decided whether the requirement that mandamus actions be filed "in the name of the state on the relation of the person applying" is jurisdictional or whether the failure to comply constitutes waivable error. In practice, this court has never treated miscaptioning as a jurisdictional defect. In fact, this court has granted relief in miscaptioned cases. For example, in State v. Clay, 136 Ohio St.3d 1489, 2013-Ohio-4140, 994 N.E.2d 461, a miscaptioned mandamus case, we granted an alternative writ.
{¶ 13} Because this court consistently treats miscaptioning as a waivable defense, it has become common practice when parties fail to raise the issue simply to correct the error before publication. For example, in case No. 2011–0922, we reversed the appellate court's denial of a writ of mandamus and remanded the case for further proceedings even though the action was filed under the caption Paul Lane v. City of Pickerington. The court's judgment entry was issued under the original, defective case caption. However, our opinion added "The State ex rel." to the formal caption, inside square brackets, and the case is now officially cited as State ex rel. Lane v. Pickerington, 130 Ohio St.3d 225, 2011-Ohio-5454, 957 N.E.2d 29.
{¶ 14} Similarly, in case No. 2006–0714, a petition for a writ of mandamus was filed under the caption Victoria Morgan v. The City of New Lexington. This court granted the writ in an opinion recaptioned...
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