THE STATE EX REL. LUCAS COUNTY BOARD OF COMMISSIONERS v. OHIO ENVIRONMENTAL PROTECTION AGENCY ET AL.
No. 98-2549
SUPREME COURT OF OHIO
March 8, 2000
88 Ohio St.3d 166 | 2000-Ohio-282
Submitted January 11, 2000
(No. 98-2549—Submitted January 11, 2000—Decided March 8, 2000.)
IN MANDAMUS.
{¶ 1} Respondent Envirosafe Services of Ohio, Inc. (“Envirosafe“) owns and operates a licensed, commercial hazardous-waste landfill in the city of Oregon, Lucas County, Ohio. At this site, Envirosafe treats, stores, and disposes of solid and hazardous waste that is transported to it from Envirosafe‘s customers, who generate this waste. A substantial portion of the waste that is handled by Envirosafe is electric arc furnace (“EAF“) dust, which is a by-product of steel production. The management of EAF dust is highly competitive, and numerous treatment and recycling options exist for steel mills that generate EAF dust.
{¶ 2} In order to properly dispose of the EAF dust, Envirosafe must test the treated waste to verify that it meets the land disposal restrictions contained in Part 268, Title 40, C.F.R. and
{¶ 3} The 1997 tracker contains the following thirteen informational fields: (1) Date; (2) Generator Name (identity of generator of waste); (3) H.R. (whether the waste treated and tested arrived at the Envirosafe landfill by highway or rail); (4) Load # (Envirosafe number identifying a shipment or portion brought to the landfill); (5) WSID (Waste Stream Identification Number assigned to certain waste streams from certain generators); (6) Waste Code (primary United States Environmental Protection Agency Hazardous Waste number); (7) Grab and Hold Type (event causing test to be performed); (8) Treat # Type (sequence of treatment events for entry); (9) P/F (pass or fail evaluation of test results); (10) Mix Design Code (code referring to amounts of stabilizing ingredients that must be added to safely treat different hazardous waste streams); (11) Off Spec (whether the hazardous waste stream was physically different from other waste streams coming from the same generator); (12) Mix Time (length of time the hazardous waste is
{¶ 4} Sometime before July 1998, an on-site inspector employed by respondent Ohio Environmental Protection Agency (“Ohio EPA“) became aware of the existence of the 1997 tracker and requested a printed copy of it. After conferring with the Ohio EPA, Envirosafe coded the mix design informational field and then provided a copy of the tracker to the Ohio EPA in July 1998. At the same time it submitted the tracker to the Ohio EPA, Envirosafe requested that eleven of the thirteen informational fields, i.e., all of the data fields except for the date and WSID, remain confidential, in accordance with
{¶ 5} In October 1998, Lucas County officials requested that the Ohio EPA provide them with a copy of the tracker, which they claimed to be a public record. Within the same week, the Ohio EPA advised Lucas County that before the agency could make the tracker available for inspection, it had to resolve Envirosafe‘s claim that most of the tracker constituted confidential trade secrets. On the same date, the Ohio EPA requested that Envirosafe submit additional information in order to substantiate its trade secrets claim. Shortly thereafter, Envirosafe withdrew its claim of trade secret protection to six more informational fields in the tracker, but continued to claim confidentiality for the generator name, H.R., mix design code, mix time, and related comments fields.
{¶ 6} On November 23, 1998, the Director of the Ohio EPA upheld Envirosafe‘s trade secrets claim for the generator name, mix time, and that portion of the comments relating to these data fields. In so holding, the director reasoned that “[l]istings of generator identifications submitted to the Ohio EPA by hazardous waste treatment, storage or disposal facilities historically have been considered by
{¶ 7} Instead of appealing the director‘s decision to the Environmental Review Appeals Commission, on December 3, 1998, relator Lucas County Board of Commissioners, filed a complaint in this court for a writ of mandamus to compel the Ohio EPA to provide the board with access to the complete, unredacted tracker. On December 9, the Ohio EPA provided the board a copy of the tracker that had been redacted in accordance with the director‘s November 23 decision. We granted Envirosafe‘s motion to intervene as an additional respondent and, after mediation failed to resolve the case, we granted an alternative writ, issued a schedule for the presentation of evidence and briefs, and ordered the Ohio EPA to submit an unredacted copy of the tracker under seal. We also dismissed the board‘s mandamus claims insofar as they related to portions of the tracker it had then received.
{¶ 8} In April 1999, while this case was pending, Envirosafe Lab Manager and Monitoring Supervisor James C. Sook testified in an unrelated proceeding before the Environmental Review Appeals Commission that the mix time category in the tracker referred to Envirosafe lab personnel‘s taking a sample “after so many minutes of mixing to see how well the performance was” and that Envirosafe had performed a research and development study “to show whether or not, by mixing
{¶ 9} This cause is now before the court for a consideration of the Ohio EPA‘s request for oral argument and the merits.
Julia R. Bates, Lucas County Prosecuting Attorney, Steven J. Papadimos, Civil Division Chief, and Lance M. Keifer, Assistant Prosecuting Attorney, for relator.
Betty D. Montgomery, Attorney General, Bryan F. Zima and J. Gregory Smith, Assistant Attorneys General, for respondent.
Eastman & Smith, Ltd., Joseph A. Gregg and Albin Bauer, for intervening respondent.
Per Curiam.
Oral Argument
{¶ 10} The Ohio EPA requests oral argument because this case “raises important issues of the jurisdiction and procedure in the review of trade secret determinations of the Director.” Admittedly, this case raises the novel and important issue of whether the Ohio EPA Director‘s trade secrets determination under
{¶ 11} Nevertheless, oral argument is not warranted here because the parties’ briefs are sufficient to resolve these issues and oral argument would merely prolong a decision in a case that has languished due to the parties’ failed attempts
R.C. 149.43 and 3734.12(G); Ohio Adm.Code 3745-49-03 and 3745-50-30
{¶ 12} The board claims that it is entitled to a writ of mandamus to compel the Ohio EPA to provide access to an unredacted copy of Envirosafe‘s 1997 tracker.
{¶ 13} The Ohio EPA and Envirosafe assert that
{¶ 14}
{¶ 15} The Ohio EPA Director consequently adopted several administrative rules regarding trade secrets, including the following comparably worded provisions:
“[Ohio Adm.Code] 3745-49-03 Public Availability Of Information
“(A) Any record, report, or other information obtained by the Ohio Environmental Protection Agency shall be made available to the public, except that
upon a showing satisfactory to the Director by any person that such record, report, or other information, or particular part thereof (other than discharge or emission data), if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the Ohio Environmental Protection Agency shall consider such record, report or information, or particular part thereof confidential.” (Emphasis added.) “Ohio Adm.Code 3745-50-30 Trade Secrets; Request For Confidentiality
“(A) Any record, report or other information obtained under the hazardous waste rules or Chapter 3734. of the Revised Code shall not be available to the public upon a showing satisfactory to the Ohio EPA that all or part of such record, report or other information (other than discharge or emission data) would divulge methods or processes entitled to protection as trade secrets of such person, in which instance, the Ohio EPA shall consider such record, report or other information or part thereof confidential and administer such record, report or other information pursuant to this rule.” (Emphasis added.)
{¶ 16}
{¶ 17} But, for the following reasons, neither
{¶ 18} First, in and of itself,
{¶ 20} Third,
{¶ 21} Finally, the board or, for that matter, any person challenging a trade secrets determination of the Ohio EPA is not relegated to an administrative appeal before the Environmental Review Appeals Commission as the sole remedy. Mandamus is the proper remedy to compel compliance with the Public Records Act, and persons requesting records under
{¶ 22} Based on the foregoing, the board may properly challenge the merits of the Ohio EPA Director‘s trade secrets decision in this mandamus action.
Trade Secrets: Generator Names, Mix Times, and Related Comments
{¶ 23} The board contends that the director erred in determining that the generator name, mix time, and related comments data fields in the tracker are trade secrets. The Ohio Uniform Trade Secrets Act,
{¶ 24} Trade secrets in the context of Ohio EPA records are ”any formula, plan, pattern, process, tool, mechanism, compound, procedure, production date, or compilation of information that is not patented, that is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article, trade, or service having commercial value, and that gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.” (Emphasis added.)
{¶ 25} Applying the foregoing definition here, the redacted portions of the tracker, i.e., generator names, mix times, and related comments, constitute a compilation of information and, with regard to mix times, a formula, that are not patented. The applicable patents do not identify the mix times that are most effective and are used for specific customers of Envirosafe.
{¶ 27} The board nevertheless contends that the redacted portions of the tracker are not confidential trade secrets because they are no longer “known only to certain individuals” within Envirosafe who use the tracker.
{¶ 28} The director analogized the generator names on the tracker to a list of Envirosafe‘s customers. A customer list is an intangible asset that is presumptively a trade secret when the owner of the list takes measures to prevent its disclosure in the ordinary course of business to persons other than those selected by the owner. Vanguard Transp. Sys., Inc. v. Edwards Transfer & Storage Co., Gen. Commodities Div. (1996), 109 Ohio App.3d 786, 791, 673 N.E.2d 182, 185;
{¶ 29} But ” ‘where the identity of the customers is readily ascertainable through ordinary business channels or through classified business or trade directories, the courts refuse to accord to the list the protection of a trade secret.’ ” Callahan v. Rhode Island Oil Co. (1968), 103 R.I. 656, 661, 240 A.2d 411, 413-414, quoting Town & Country House & Homes Serv., Inc. v. Evans (1963), 150 Conn. 314, 320, 189 A.2d 390, 394. In other words, a document is entitled to trade secret status “only if the information is not generally known or readily ascertainable to the public.” State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997), 80 Ohio St.3d 513, 529, 687 N.E.2d 661, 675.
{¶ 30} The board claims that Envirosafe‘s generator/customer names are not trade secrets because they are readily ascertainable from industry directories, industry publications, Internet websites, United States EPA reports, and hazardous waste manifests. In support of this claim, the board cites In re Urgent Medical Care, Inc. (Bankr.Ct. S.D.Ohio 1993), 153 B.R. 784, at 789, in which the court held that a health care provider‘s client list was not a trade secret because the information was readily available from public sources and there was no additional information that entitled the list to confidential status:
“The employer client list does not contain information which rises to the level of confidentiality such that it qualifies as a trade secret. It is merely a list of clients who use [the employer] to provide occupational health care services for their employees. Absent additional information about the employer‘s requirements and preferences, which information appears only on the ‘green sheets,’ the list alone does not constitute a trade secret. The identity of these employer clients is simply a list of much of the universe of business employers likely to need occupational
health care services in Central Ohio. Such information is readily available from other sources and is not a ‘secret.’ ” (Emphasis added.)
{¶ 31} Unlike the list in Urgent Medical Care, however, the generator names data field is not a simple list of customer names. Instead, the generator names field in the context of the tracker contains additional information, i.e., its disclosure would permit persons to determine the relative amount of waste each generator sends to Envirosafe, which generator‘s waste fails Envirosafe‘s tests more than other generators, whether one generator has more waste streams that are physically different and require different treatment from other generators, and, if disclosed with mix times, whether one generator‘s waste has to be mixed longer in order to be properly treated.
{¶ 32} It does not matter that some of the tracker has been publicly disclosed. “Where documents already in the public domain are combined to form a larger document, a trade secret may exist if the unified result would afford a party a competitive advantage.” Plain Dealer, 80 Ohio St.3d at 528, 687 N.E.2d at 674-675; see, also, Save Our Selves, Inc. v. Louisiana Environmental Control Comm. (La.App.1983), 430 So.2d 1114, 1120 (requested information protected as trade secrets because information together with information publicly disclosed in patent would enable business competitors to duplicate secrets).
{¶ 33} The fragments of information that the board claims are available through other public sources is not as complete nor as informative as the tracker, which provides a comprehensive list of Envirosafe‘s current customers and their specific relation to Envirosafe‘s treatment of their waste. No other company in the EAF dust-treatment business knows all of Envirosafe‘s customers and their treatment needs. Therefore, the generator-names data field of the tracker is not readily ascertainable from the public sources specified by the board.
{¶ 34} The board next contends that the mix times data field of the tracker is not “known only to certain individuals” within Envirosafe who use the tracker
{¶ 35} The board‘s contention is meritless. The testimony at the administrative hearing did not disclose specific mix times for specific waste streams. And contrary to the board‘s speculation and interpretation of the administrative hearing testimony, the tracker indicates that a twenty-minute mix time was not always an appropriate time for certain waste streams.
{¶ 36} Finally, the redacted portions of the tracker give Envirosafe an “opportunity to obtain a business advantage over competitors who do not know or use it.”
{¶ 37} Based on the foregoing, the board is not entitled to a writ of mandamus to compel the disclosure of the generator name, mix time, and related comments data fields of the tracker. These portions of the tracker are entitled to exemption from disclosure as trade secrets. The board is also not entitled to attorney fees because it is not entitled to the writ, and, in fact, there is no evidence that the board paid any attorney fees to its counsel. See State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1998), 81 Ohio St.3d 1234, 1235, 690 N.E.2d 11, 12 (“[T]he party against whom an award of fees [in an
Writ denied.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., not participating.