2015 Ohio 4981
Ohio Ct. App.2015Background
- The City of Cleveland contracted with private consultant NERA to conduct a disparity study and provide recommendations for the City’s Office of Equal Opportunity.
- ACEE requested public records under Ohio’s Public Records Act about the study and NERA’s work; the City produced ~20,000 pages but withheld one list of names and said many other documents were in NERA’s possession.
- NERA intervened and argued it is a private entity and that withheld materials are trade secrets.
- The trial court reviewed in camera the single list (names and email addresses) the City withheld and held it was a trade secret; the court also found NERA was not a public office or functional equivalent and denied the mandamus writ.
- On appeal the court reviewed both the functional-equivalency test and the quasi-agency (person responsible for public records) theory and concluded NERA is not a functional equivalent but is a “person responsible for public records” under R.C. 149.43(C).
- The court affirmed the trade-secret finding as to the single list but reversed and remanded for the trial court to examine the other documents in NERA’s possession for trade-secret status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NERA is the functional equivalent of a public office for R.C. 149.43 | NERA performed a public purpose under contract and thus should be treated as subject to the Public Records Act | NERA is an independent private consultant, historically private activity, minimal government control and funding | NERA is NOT a functional equivalent of a public office |
| Whether NERA is a “person responsible for public records” (quasi-agency) | Even if not a public office, the City contracted NERA to perform public responsibilities so its records are subject to disclosure | NERA contends its records are private and not subject to R.C. 149.43 | NERA IS a person responsible for public records under the Carr/Mazzaro framework; records in its possession may be subject to disclosure |
| Whether the single list of names/email addresses is a trade secret exempt from disclosure | ACEE sought the list as part of public records | NERA asserted the list is proprietary, guarded, and economically valuable; City withheld it on that basis | The list is a trade secret under R.C. 1333.61 and properly withheld |
| Whether the trial court erred by not reviewing documents in NERA’s possession for trade-secret protection | ACEE argued the court should have evaluated NERA’s documents and ordered disclosure if not exempt | City/NERA argued documents were private and not subject to R.C. 149.43 because NERA is not a public office | The court erred to the extent it declined to apply the quasi-agency analysis to NERA’s records; remanded for trial court to review remaining NERA documents for trade-secret status |
Key Cases Cited
- State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456 (functional-equivalency factors)
- State ex rel. Carr v. Akron, 112 Ohio St.3d 351 (quasi-agency/person responsible test)
- State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37 (private contractor records accessible when used to carry out public duties)
- State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400 (public cannot avoid disclosure by delegating public duties to private entities)
- State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513 (factors for trade-secret protection)
- State ex rel. Luken v. Corp. for Findlay Mkt. of Cincinnati, 135 Ohio St.3d 416 (trade-secret release prohibited by law exception)
- State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396 (burden on party claiming trade-secret status)