State ex rel. Dayton Newspapers v. Dayton Bd. of Edn., 18247.
| Decision Date | 20 July 2000 |
| Docket Number | No. 18247.,18247. |
| Citation | 747 NE 2d 255,140 Ohio App.3d 243 |
| Parties | The STATE ex rel. DAYTON NEWSPAPERS et al. v. DAYTON BOARD OF EDUCATION et al. |
| Court | Ohio Court of Appeals |
Robert P. Bartlett, Jr. and Janice M. Paulus, for relator Dayton Newspapers, Inc.
Nicholas E. Subashi and Steven L. DeVita, Dayton Public Schools Legal Department, for respondent Dayton Board of Education.
Robert E. Portune and Ron Kozar, for intervening relator WHIO-TV-7.
Schroeder, Maundrell, Barbiere & Powers and John W. Hust, for respondent Hazard, Young, Attea & Assoc., Ltd.
This matter is before the court on an alternative writ of mandamus filed on April 12, 2000. The alternative writ ordered respondents, Dayton Board of Education (the "board") and Hazard, Young, Attea & Associates ("Hazard"), to show cause in writing why a writ of mandamus requested by petitioner, Dayton Newspapers, Inc. ("DNI"), should not be granted.
The board filed a response to the alternative writ on April 17, 2000. Therein, the board also moved to dismiss DNI's petition or for summary judgment in the alternative. Hazard has not filed a response.
DNI's petition for writ of mandamus was filed pursuant to the Ohio Public Records Act, R.C. 149.43. It asks us to order the board and Hazard to disclose certain information to which DNI claims it has a right pursuant to the Act. DNI also seeks an award of attorney fees, for which the Act provides. In addition to our alternative writ, the proceedings on DNI's petition have produced two other matters for decision.
First, DNI has moved for a default judgment against Hazard pursuant to Civ.R. 55. Hazard has failed to plead or otherwise respond to DNI's petition. Pursuant to Civ.R. 8(D), that failure operates as an admission. However, we decline to enter judgment against Hazard on the basis of that admission alone, in view of the legal issues presented. The motion for default judgment is therefore denied. Any judgment for or against Hazard on DNI's petition will be entered on the merits.
The second matter presented for our decision is a motion to intervene that was filed pursuant to Civ.R. 24 by WHIO-TV-7, which seeks the same mandamus relief that DNI has requested. We granted WHIO-TV-7's motion to intervene on May 5, 2000. The board subsequently moved to dismiss WHIO-TV-7's petition and/or for summary judgment.
The issues involved in this proceeding arise from steps taken by the board earlier this year to recruit, select, and hire a new school superintendent. The board also appointed an acting superintendent to serve upon the former superintendent's resignation and until a new superintendent is hired. The board also contracted with Hazard, a consulting firm in Illinois, to assist in the search process.
On April 6, 2000, DNI made a written request asking the board to provide DNI copies of all documents in the board's possession that related to its superintendent search, including correspondence and notes. DNI stated that the request was made pursuant to R.C. 149.43 and R.C. 121.22. DNI made a similar request of Hazard, also specifying that it wished to have a copy of each applicant's resume. WHIO-TV-7 made similar requests of the board on April 7, 2000.
The board declined the DNI and WHIO-TV-7 requests, stating that the requested materials constitute "trade secrets" that may not be disclosed without the owner's consent per R.C. 1333.61, and are thus exempt from the requirements of R.C. 149.43. Hazard did not reply.
DNI next commenced this original action seeking a writ of mandamus requiring the board and Hazard to provide the materials that DNI had requested. Our alternative writ then issued. The board has asserted the "trade secrets" defense in response to the alternative writ. The board also argues that both DNI's and WHIO-TV-7's petitions should be dismissed as moot because a new school superintendent has since been hired.
We do not agree that hiring a superintendent renders the petitions moot. Relators are prosecuting a statutory right to have the information. They may yet wish to have the names and backgrounds of applicants who were not chosen for the job. Further, the board's trade secrets defense presents an important issue that is capable of repetition, yet evading review. Such issues are not subject to dismissal as moot. State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 584 N.E.2d 665.
R.C. 149.43 requires any public office, including a school board, to make public records in their possession available for inspection upon request and to make copies of those records available at cost. Subsection (C) authorizes a person whose request is denied to commence a mandamus action to obtain the public records requested. Those materials are defined by subsection (A)(1) of R.C. 149.43 to be any and all records held by a public office except, inter alia, "records the release of which is prohibited by state or federal law." The board argues that R.C. 1333.61 et seq., the Ohio Trade Secrets Act, prohibits the release of the records that DNI requested.
It is well settled that any exceptions to disclosure in R.C. 149.43 are strictly construed against the custodian of public records, and that the burden to establish an exception is on the custodian. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 637 N.E.2d 911. Further, R.C. 149.43 is liberally construed to further broad access, and any doubt is resolved in favor of disclosure. State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 640 N.E.2d 174.
In State ex rel. The Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 661 N.E.2d 187, the court held that resumes of applicants for the position of Cleveland Police Chief are public records subject to disclosure per R.C. 149.43. The court rejected a need-for-privacy claim, pointing out that, in contrast with records of Social Security numbers, "there is no legislative scheme protecting resumes of applicants for public employment * * *, and the city has not established the same high potential for victimization that could result from disclosure of resumes * * *." Id. at 35, 661 N.E.2d at 190-191.
The court arrived at the same result a year later in State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400, 678 N.E.2d 557. There, the court held that the names of applicants for the position of Cincinnati Safety Director were subject to disclosure per R.C. 149.43, notwithstanding the fact that the materials requested were in the possession of a private consulting firm that had designated them trade secrets. The court held that R.C. 149.43 cannot be "circumvented by the delegation of a public duty to a third party." Id. at 403, 678 N.E.2d at 561. The court went on to state:
Both Cleveland and Shirey were decided after the effective date of the Ohio Trade Secrets Act, R.C. 1333.61 et seq., upon which the board relies to claim that the materials that DNI has requested are exempt from disclosure. Application of the Trade Secrets Act to the claims before us requires examination of its terms.
R.C. 1333.62 authorizes a court to enjoin misappropriation of a trade secret. R.C. 1333.65 authorizes courts to protect trade secrets from misappropriation by ordering records sealed and granting protective orders. R.C. 1333.63 authorizes a recovery of monetary damages for misappropriation.
"Misappropriation" of a trade secret is defined by R.C. 1333.61 to include disclosure of the trade secret of another without his consent when it was acquired by the disclosing party by or as a result of some improper means, mistake, or accident. Subsection (D) of that section states:
Materials that are trade secrets are exempt from disclosure under R.C. 149.43 because the Ohio Trade Secrets Act constitutes a law that prohibits release of such records, which are thus exempt from disclosure per subsection (A)(1) of R.C. 149.43. State ex rel. Besser v. Ohio State University (2000), 87 Ohio St.3d 535, 721 N.E.2d 1044. Further, governmental entities can have trade secrets. Id. Whether any materials are trade secrets should be determined by a court in which a mandamus action is filed after and on the basis of an in camera review of the materials. Id.; State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997), 80 Ohio St.3d 513, 687 N.E.2d 661. If the court finds that the records contain excepted information, this information must be redacted and any remaining information must be released. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 661 N.E.2d 180.
The board has submitted the materials in its possession covered by the relators' requests, and we have examined those materials in camera. They consist of the names, applications, and resumes of some thirty-eight persons. The information includes their professional background,...
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