2022 Ohio 1859
Ohio Ct. App.2022Background
- Relator Michael A. McNew, an inmate at London Correctional Institution, requested (1) itemized education-department budget records and (2) contract-related documents from ODRC, including LexisNexis materials and the response to request-for-quote DRCQ-20-2780 (May 24, 2019).
- ODRC produced the main contract in April 2020 but otherwise did not respond to multiple follow-up requests; on November 4, 2020 ODRC sent records and stated LexisNexis claimed trade-secret and copyright protections for the May 24, 2019 response and that ODRC would "supplement" its response.
- McNew filed a mandamus petition August 28, 2020 seeking the withheld records; the magistrate found ODRC had not timely produced records, had not properly asserted or proved a trade-secret exemption, and recommended a writ ordering production of an unredacted LexisNexis May 24, 2019 response, $1,000 in statutory damages, and costs.
- ODRC objected, arguing it had raised the trade-secret claim and that an in camera review was required before disclosure or awarding damages/costs.
- The court reviewed the magistrate's decision de novo, overruled ODRC's objections, adopted the magistrate's findings, ordered production of the unredacted LexisNexis May 24, 2019 response, awarded $1,000 statutory damages, and taxed costs to ODRC.
Issues
| Issue | Plaintiff's Argument (McNew) | Defendant's Argument (ODRC) | Held |
|---|---|---|---|
| Whether ODRC waived/asserted the trade-secret exemption | ODRC failed to timely assert or prove any trade-secret exemption for the May 24, 2019 LexisNexis response | ODRC says it did assert trade-secret protection (via its November 4 cover letter) and may not have authority to waive LexisNexis's protection | Waived/abandoned: court held ODRC failed to plead or prove the exemption before the magistrate and thus waived it |
| Whether the court must conduct in camera review before ordering disclosure | McNew: no in camera review required when custodian never properly asserted/proved exemption | ODRC: in camera inspection is required before deciding applicability of the exemption | No in camera review here: because ODRC never presented unredacted document or evidence supporting the exemption, court declined to conduct one and ordered production |
| Whether ODRC produced records within a reasonable time and whether statutory damages apply | McNew: delay (months, lack of acknowledgements) entitles him to statutory damages and costs | ODRC: COVID-19 and limited staff access justify delays; it produced some records and responded reasonably | Not reasonable: court found lengthy, unexplained delays (6–7 months for most records; >2 months after mandamus) and awarded $1,000 statutory damages |
| Whether court costs may be awarded absent an in camera finding on the exemption | McNew: costs appropriate because court ordered compliance with R.C. 149.43(B) | ODRC: costs should await an in camera review and final determination on exemption | Costs awarded: because court ordered compliance with R.C. 149.43(B), costs are required even though no in camera review was performed |
Key Cases Cited
- State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Envtl. Prot. Agency, 88 Ohio St.3d 166 (2000) (Public Records Act mandates access unless a specific exception applies)
- State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396 (2000) (trade secrets fall within R.C. 149.43(A)(1)(v) exemption)
- State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81 (2008) (burden on custodian to prove records fall squarely within an exception)
- State ex rel. Rogers v. Ohio Dept. of Rehab. & Corr., 155 Ohio St.3d 545 (2018) (Public Records Act construed liberally for disclosure; exceptions strictly construed; custodian bears burden)
- McDougald v. Greene, 162 Ohio St.3d 250 (2020) (an exception may be evident on the face of documents; in camera review appropriate when exemption is asserted and material is before the court)
- Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337 (2020) (when exemption is challenged, courts must conduct individualized scrutiny; burden of production on public office)
- State ex rel. Seballos v. School Emps. Retirement Sys., 70 Ohio St.3d 667 (1994) (when government asserts an exception and it is challenged, the court must inspect documents in camera)