State ex rel. Am. Ctr. for Econ. Equal. v. Jackson, 102298.

• Decision Date: 03 December 2015
• Docket Number: No. 102298.,102298.
• Citation: 53 N.E.3d 788
• Parties: STATE ex rel. AMERICAN CENTER FOR ECONOMIC EQUALITY, Plaintiff–Appellant v. The Honorable Frank JACKSON, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

53 N.E.3d 788

STATE ex rel. AMERICAN CENTER FOR ECONOMIC EQUALITY, Plaintiff–Appellant

v.The Honorable Frank JACKSON, et al., Defendants–Appellees.

No. 102298.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 3, 2015.

Gilbert W.R. Rucker, III, Warren, OH, for Appellant.

Barbara A. Langhenry, Law Director, City of Cleveland By: Jonathan P. Barra, Assistant Law Director, Cleveland, OH, for the Honorable Frank Jackson.

John R. Mitchell, Carolyn M. Cole, Thompson Hine, L.L.P., Cleveland, OH, Terry W. Posey, Jr., Thompson Hine, L.L.P., Miamisburg, OH, for National Economic Research Associates, Inc.

Before: E.A. GALLAGHER, P.J., McCORMACK, J., and STEWART, J.

TIM McCORMACK, J.

{¶ 1} Relator-appellant, American Center for Economic Equality (“ACEE”), appeals from the trial court's judgment denying its petition for writ of mandamus. For the following reasons, we affirm in part and reverse in part.

Procedural History and Substantive Facts

{¶ 2} In August 2010, the city of Cleveland (“City”) entered into a contract with National Economic Research Associates, Inc. (“NERA”) to “develop, conduct, and interpret a current disparity study, including recommending and implementing accepted improvements to the City Office of Equal Opportunity's business enterprise program.” The purpose of the disparity study was to determine whether there was sufficient evidence of discrimination to include race-conscious and gender-conscious goals in the City's procurement, construction, and other contracts, and if so, to assist the City in implementing such goals in its business enterprise program. NERA is a private, for-profit company that is incorporated in California, doing business in Texas, maintains its main office in New York, and provides services for clients in North America, Asia Pacific, and Europe. It provides professional consulting services in economics, finance, and quantitative principles.

{¶ 3} On April 2, 2013, pursuant to R.C. 149.43

, the Ohio Public Records Act, ACEE requested from the City the production of any and all public records pertaining to certain members of Mayor Frank G. Jackson's staff and records generated or created from January 1, 2008, through April 2, 2013, pertaining to NERA and the disparity study prepared by NERA. On July 1, 2013, ACEE filed a petition for writ of mandamus. On July 2, 2013, the City produced approximately 20,000 pages of documents in response to ACEE's public records request. On December 27, 2013, NERA filed a motion to intervene, which the trial court granted.

{¶ 4} NERA opposed ACEE's petition for a writ, stating that the City produced all documents in its possession that were responsive to ACEE's public records request and not subject to privilege. It further stated that, with the exception of one confidential document it provided to the City, the remaining documents were protected from disclosure because NERA, a private entity, possessed the documents and because the requested documents were trade secrets exempt from disclosure. The City also opposed ACEE's petition for writ, stating that it produced all documents in its possession that were responsive to ACEE's public records request and not subject to privilege. The City stated that the one document in its possession was withheld pursuant to NERA's instructions.

{¶ 5} In March 2014, ACEE filed a motion for in camera inspection of documents in NERA's possession or documents NERA claimed were protected trade secrets. The documents requested for in camera inspection included the following:

Any and all records pertaining to the studies and surveys referenced on pages 266–267 of the document titled The State of Minority– and Women–Owned Business Enterprise: Evidence from Cleveland Prepared for the City of Cleveland that was issued on December 24, 2012, * * * [including] but [ ] not limited to:

— the survey questionnaire mailed to 9,094 businesses;

— the 685 responses received;

— the list of businesses that received the questionnaire;

— the list of 685 respondents;

— the study or discussion guide prepared for use in the group interviews described on page 283 of the NERA report;

— a list of the 110 minority and female business owners who participated in the group interviews; and

— any transcripts, video and/or audio tapes of the group interviews.

{¶ 6} The trial court granted, in part, ACEE's motion for in camera inspection. The court ordered the City to produce the one document withheld from its July 2013 disclosure, based upon NERA's instructions, for an in camera inspection.¹

{¶ 7} Following a review of this document, which was a list of names with email addresses, the court denied ACEE's writ. The trial court determined that the single document—the list of names—is a trade secret as defined in R.C. 1333.61

and is not subject to disclosure. The court further found that the City has fulfilled its obligations regarding ACEE's public records request, having produced all other documents in its possession relating to the records request. Finally, the trial court found that NERA is not a public office pursuant to R.C. 149.43, nor is it a functional equivalent, agent, or quasi-agent of the City. The court therefore held that the records retained by NERA are not public records under R.C. 149.43 and ACEE is not entitled to their disclosure.

{¶ 8} ACEE appealed the trial court's denial of the writ, raising two assignments of error.

Assignments of Error

I. The trial court erred in finding the documents held by the third-party contractor NERA were “trade secrets” and not subject to disclosure under R.C. 149.43

, the Public Records Act, [and] was contrary to law and against the manifest weight of the evidence and constituted an abuse of discretion.

II. The trial court erred in its finding that the records requested were not subject

to the Public Records Act when the court limited its cursory analysis to whether NERA was a “functional equivalent” of the City of Cleveland and [in its] failing to consider the ramifications of the contractual obligations between the City and NERA, which constituted an abuse of discretion and a judgment contrary to the manifest weight of the evidence.

Standard of Review

{¶ 9} The proper remedy to enforce a public records request is an original action in mandamus. R.C. 149.43(C)

; Salemi v. Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914, 2014 WL 4460404, ¶ 10 ; 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. In order to obtain relief, ACEE must demonstrate that it possesses a clear, legal right to the requested records and that the respondent possesses a clear, legal duty to provide the requested records. Id.

{¶ 10} The purpose of R.C. 149.43

, Ohio's Public Records Act, “is to expose government activity to public scrutiny, which is absolutely essential to the proper working of a democracy.” State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d 1223 (1997). R.C. 149.43 is therefore intended to be liberally construed “to ensure that governmental records be open and made available to the public * * * subject to only a few very limited and narrow exceptions.” State ex rel. Williams v. Cleveland, 64 Ohio St.3d 544, 549, 597 N.E.2d 147 (1992). The relator, however, must establish its entitlement to mandamus by clear and convincing evidence. Salemi at ¶ 11. Clear and convincing evidence is “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 11} We review a trial court's denial of a writ of mandamus for an abuse of discretion. Cleveland v. Highland Hills, 8th Dist. Cuyahoga No. 64605, 1993 WL 226480, *2 (June 24, 1993)

, citing State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987) ; Ogle v. Hocking Cty. Sheriff, 4th Dist. Hocking No. 11AP13, 2012-Ohio-1768, 2012 WL 1380041, ¶ 14.

Public Records Act

{¶ 12} In its second assignment of error,² ACEE claims that the trial court erred in denying the writ regarding the documents that are in NERA's possession, where the court found that NERA was not a functional equivalent of a public office and therefore not subject to the Public Records Act. ACEE essentially argues that the trial court erred in applying the functional-equivalency analysis because NERA contracted with the City to perform a public purpose and, therefore, the records requested concerning the contract are public records. ACEE also argues that, under the functional-equivalency analysis, the trial court failed to accord the proper weight to the City's contract with NERA.

{¶ 13} Under the Public Records Act, R.C. 149.43

, public offices must release public records upon request. A public record is defined as “any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units.” R.C. 149.43(A)(1)

. For purposes of the Public Records Act, a public office is defined as “any state agency, public institution, political subdivision, or any other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.” R.C. 149.011(A).

{¶ 14} In some instances, a private entity may qualify as a “public institution” under R.C. 149.011(A)

, and thus, a “public office,” for purposes of R.C. 149.43. The Ohio Supreme Court has held that a private entity may be the “functional equivalent” of a public office where the court analyzes the following factors: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government...