dissenting. I would find that the materials in question are exempted from disclosure under R.C. 149.43(A)(1) because the release of the records is prohibited by state or federal law. Therefore, I respectfully dissent and would deny the writ.
Ohio’s Public Records Act, R.C. 149.43, defines a “public record” as “any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except * * * [r]ecords the release of which is prohibited by state or federal law.” R.C. 149.43(A)(1)(o). While I would agree that the requested materials constitute records kept by a public office, for the reasons that follow, I would find that both the OPT and the OCAP fall within the exception of “records the release of which is prohibited by state or federal law.”
OHIO PROFICIENCY TEST (OPT)
I would find that the release of the OPT materials is prohibited by state law, specifically, Ohio Adm.Code 3301-13-05 and R.C. 3319.151.
Ohio Adm.Code 3301-13-05
First, Ohio Adm.Code 3301-13-05 provides:
“(A) With the exception of test materials specifically designated as ‘practice test’ by the department of education, all test questions and all other materials *535which are considered part of the fourth, sixth, ninth, and twelfth-grade proficiency tests * * * shall be considered secure and subject to the provisions of sections 3319.151 and 3319.99 of the Revised Code and to the provisions of this rule.
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“(D) No person shall release, cause to be released, reproduce, or cause to be reproduced any secure test materials through any means or medium including, but not limited to, electronic, photographic, written, or oral.”
These security provisions established by Ohio Adm.Code 3301-13-05 are an essential element of the proficiency testing program that the State.Board of Education is required to implement through the adoption of rules pursuant to R.C. 3301.07, 3301.0710, and 3301.0711. To find that the administrative rule does not apply to proficiency tests already administered would undermine the entire purpose of this rule. This court has recognized that the R.C. 149.43(A)(1) exception for other “state laws” includes properly adopted administrative rules. State ex rel. Beacon Journal Publishing Co. v. Waters (1993), 67 Ohio St.3d 321, 617 N.E.2d 1110. Accordingly, I would find that Ohio Adm.Code 3301-13-05 is such a “state law,” which prohibits the release of the OPT.
R.C. 3319.151
The second state law which prohibits the release of the OPT is R.C. 3319.151. The plain language of the statute states, “No person shall reveal to any student any specific question that the person knows is part of a test to be administered under section 3301.0711 of the Revised Code * * *.” R.C. 3319.151(A).
To find that R.C. 3319.151 applies only prior to the administering of a proficiency test and that once a proficiency test has been administered, the test is no longer protected by R.C. 3319.151 is to interpret the statute so as to reach an absurd result. Although no two tests are alike, in order to be sure that tests are similar in difficulty, a certain number of old test questions will always reappear on new versions of the OPT. Further, a few new questions are field-tested on each test for use in the future. The validity and comparability of the test results depend on reuse of secure test questions. To allow the OPT to be subject to unrestricted use and copying under R.C. 149.43 would compromise the current question bank and prevent the development of new questions. The majority would have the respondent Ohio Department of Education (“ODE”) develop all new questions for each test. Common sense and reality dictate that time and lack of resources make that aspiration impossible and would prevent ODE from carrying out its duty to establish a proficiency testing program for public school students throughout Ohio.
The majority concludes that the recent passage of Am.Sub.S.B. No. 55 supports the argument that the release of past tests does not violate state law. This *536statute will require ODE, beginning in 1999, to make proficiency tests public the year after they have been administered. Thus, the legislature has provided for public access to the OPT materials one year after the test has been administered, as opposed to the immediate release called for by the majority’s granting of the writ.
Inherent in the framework of our Constitution’s separation of powers is the legislature’s power to create and/or change the law. While it appears that the legislature has decided to act on this issue and make the OPT public, it is not for this majority to change the General Assembly’s effective date of the statute. Instead, the court should allow the legislature to exercise its discretion in deciding when a bill shall become law. Further, at the time the relators instituted this mandamus action, Am.Sub.S.B. No. 55 had not been enacted, and, as such, does not affect this action.
Therefore, I would find that the OPT materials are prohibited from release by state law and would deny the writ as to the release of the OPT materials.
OHIO COMPETENCY ANALYSIS PROFILE (OCAP)
I would further find that the OCAP is prohibited from release by both state law (R.C. 1333.61, 3345.14, and 149.43[A][5]) and federal law (Section 107, Title 17, U.S.Code).
R.C. 1333.61
First, the OCAP is a trade secret which is prohibited from disclosure under the Ohio Trade Secrets Law (now codified in R.C. 1333.61) and as such is exempt from the disclosure and copying requirements of R.C. 149.43(B).
R.C. 1333.61 provides:
“(D) ‘Trade secret’ means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:
“(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
“(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
As for the first requirement, clearly, the economic and educational value, of the OCAP test materials is dependent upon the continued confidentiality of the test materials. The OCAP materials are Ohio State University-Vocational Instruc*537tional Materials Laboratory’s (“VIML’s”) largest asset, comprising approximately seventy-five percent of VIML’s revenue. Further, VIML actively markets the OCAP materials to other states. In turn, these commercial sales enable VIML to continue to develop and maintain the assessment, while reducing the costs that now are borne by ODE and vocational school districts throughout Ohio. The economic value of the OCAP materials is entirely dependent upon the fact that they are not in the public domain. The majority’s release of the materials will no doubt cause respondent VIML to suffer a substantial competitive disadvantage, possibly so severe that it may force respondent to withdraw from the business of developing such assessments.
As for the second requirement of the trade secret test, as set forth in R.C. 1333.61, VIML has taken reasonable efforts to maintain the secrecy of the OCAP test items. The OCAP, as is the OPT, is a secure test, meaning “a nonmarketed test administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration.” Section 202.20(b)(4), Title 37, C.F.R. Steps taken to maintain the security of the OCAP include password-protecting all computers which contain test information, shredding documents containing test development information or test items, securing existing documents containing test itéms or development information, copyrighting each of the test forms, and enforcing strict review procedures designed to maintain the integrity of the materials.
The majority stretches to conclude that once VIML developed the OCAP for the public purpose of evaluating school students pursuant to state and federal requirements, the test was effectively disseminated into the public domain, thereby losing any trade secret status it might have had. To the contrary, the mere development of the OCAP materials does not constitute public dissemination. Rather, the OCAP continued to maintain its trade secret status until the majority granted this writ of mandamus, which permits unrestricted access and copying of the OCAP. Accordingly, I would find that the OCAP materials fall within the trade secret exception to the Ohio Public Records Act. See State ex rel. Seballos v. School Emp. Retirement Sys. (1994), 70 Ohio St.3d 667, 640 N.E.2d 829.
R.C. 3345.14
The second state law that prohibits release of the OCAP is R.C. 3345.14, which makes the products and results of university research the sole property of the university and gives the university board of trustees the right to determine if, when, and under what circumstances interests or rights to such property will be conveyed to other individuals.
*538R.C. 3345.14 provides:
“All rights to and interests in discoveries or inventions * * * which result from research or investigation conducted in any * * * research facility of any state college or university shall be the sole property of such college or university. * * *
“As may be determined from time to time by the board of trustees of any state college or university, the college or university may retain, assign, license, transfer, sell, or otherwise dispose of, in whole or in part and upon such terms as the board of trustees may direct, any and all rights to, interests in, or income from any such discoveries, inventions, or patents which the college or university owns or may acquire. * * *”
A university cannot benefit from its right to own its research and inventions if such research and inventions are required to be publicly disseminated on demand. Unrestricted public disclosure of the OCAP materials will completely destroy the educational and as well as commercial value of the test materials.
Dr. Deborah Bingham Catri, Director of VIML, explained:
“If it is generally known that a test maker reuses publicly disclosed test items, the reuse of test items raises very serious concerns about the validity and fairness of the test. The nature of the concern is obvious: that students’ responses to questions may not reflect their knowledge of the subject matter or own skills, but merely their familiarity with the particular questions asked.
“Concerns about the reuse of test items are particularly heightened when the test is intended to test knowledge or skills in a particular area and when the test form is in a multiple choice format. Based upon the currently available empirical studies on the reuse of test items and the general literature on competency test development, it would be inappropriate as a matter of sound testing policy for a competency testing program to engage in a practice of reusing publicly disclosed test items. ” (Emphasis added.)
I cannot agree with the conclusion that the development of new test forms obviates the need to reuse some test questions. Sometimes old questions must be repeated in new test forms in order to assure that students do not pass or fail a particular test because the test was easier or more difficult than a previous test. Thus, test questions must be repeated as part of the empirical evaluation of the test items themselves, as noted by Dr. Catri.
It takes years to develop a test question data base of the level that VIML has achieved for the OCAP. In fact, it can take between six and twelve months to create a single test item. Thus, to compromise the current test bank is to ignore the time and resources spent to attain the current level of test questions, which is needed to develop new questions in the future. Further, it destroys the market *539for OCAP assessments, VIML’s ownership interest, and VIML’s right to control the assessments’ transfer or conveyance. Therefore, I would find that the OCAP materials are prohibited from release by R.C. 3345.14.
The final state law which prohibits the release of the OCAP materials is the intellectual property record exemption, R.C. 149.43(A)(5), which defines an “intellectual property record” as:
“[A] record, other than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of higher learning in the conduct or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not been publicly released, published, or patented.”
The majority finds that the language “and that has not been publicly released, published, or patented” is fatal to OCAP’s coming under the intellectual property record exemption. However, again, I would not find that the OCAP materials have been publicly released or published. Rather, they were merely administered and VIML has continued to attempt to maintain the integrity and security of the OCAP materials. Therefore, I would find that the OCAP materials fall within the R.C. 149.43(A)(5) exemption and accordingly should not be subject to public disclosure.
Federal Copyright Law
Not only is the OCAP prohibited from disclosure under state law, but under federal copyright law as well. The majority concludes that the fair-use exception to the federal copyright statute applies to allow the reproduction and copying of the OCAP materials without copyright infringement.
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market for or value of the copyrighted work.” Section 107, Title 17, U.S.Code.
While the purpose and character of the use are arguably not of a commercial nature, I would find the other three factors of the fair-use exception weigh in VIML’s favor. First, the nature of the copyrighted work is such that copying *540and disseminating would not merely decrease the economic value of the OCAP, but instead would make the test bank questions virtually worthless. Second, the amount and substantiality of the portion used in relation to the copyrighted work as a whole also weigh in VIML’s favor. The relators are seeking unmarked assessment booklets, unmarked test instructions, and questions from previously administered examinations. This request and the effect of the majority’s issuance of the limited writ constitute all of the OCAP materials.
. Third, and most important, the effect of the use upon the potential market for or value of the copyrighted work weighs most heavily in VIML’s favor. In terms of dollars and cents, the effect of the majority’s allowing a fair-use exception to the federal copyright law is to effectively cripple VIML’s ability to sell the OCAP materials to other states. But the value of the copyrighted work in this instance should be measured in terms of the effect such a public dissemination will have on the state’s capacity to develop, utilize, and maintain its responsibility to assess the ability of its public school students.
Further evidence of the majority’s incorrect conclusion that the fair-use exception applies to the OCAP materials is found in the Congressional testimony of Ralph Oman, Register of Copyrights, regarding the fair-use statute: “Secure tests are particularly vulnerable to having their utility obliterated by unauthorized disclosure. The courts have, accordingly, been particularly solicitous in protecting these works. Indeed, so far as we are aware, the courts have never upheld a fair use claim advanced by any private entity with regard to copying of secure tests or test questions.” (Emphasis added.) 137 Cong. Rec. Section 13923.
Further, Senator Grassley noted that “the act [the fair-use statute] is not intended ‘to reduce the protection of secure tests, whose utility is especially vulnerable to unauthorized disclosure.’ * * * [T]his bill essentially incorporates the view courts have had with respect to this issue. * * * [C]ourts have recognized the special character of secure tests by rejecting fair use claims.” 137 Cong. Rec. Section 13923. In addition, Senator Leahy also noted that the bill was not intended to reduce the protection of secure tests. 102 S. Rpt. 141.
Accordingly, I would find that the fair-use exception of Section 107, Title 17, U.S.Code does not apply and, therefore, release of the OCAP materials is prohibited by federal copyright law.
Section 1232g, Title 20, U.S.Code (FERPA)
In addition to the prohibitions addressed above, relators contend that Section 1232g, Title 20, U.S.Code, as well as Section 1232h, Title 20, U.S.Code, applies to VIML’s current nondisclosure practices. This contention is without merit.
*541I would find that the federal Family Educational Rights and Privacy Act, Section 1232g, Title 20, U.S.Code (“FERPA”), does not require VIML to give relators unrestricted access to or copies of the OCAP materials. FERPA provides:
“No funds under any applicable program shall be made available to any State educational agency (whether or not that agency is an educational agency or institution under this section) that has a policy of denying, or effectively prevents, the parents of students the right to inspect and review the education records maintained by the State educational agency on their children who are or have been in attendance at any school of an educational agency or institution that is subject to the provisions of this section.” Section 1232g(a)(1)(B), Title 20, U.S.Code.
I would hold against the applicability of FERPA for a variety of reasons. First, VIML is not a “state educational agency.” Second, the OCAP materials are not “education records.” Yet the most important reason is that the statute does not confer a right to obtain copies of the education records. Instead, the statute merely grants a right to inspect and review those records. The record in this case demonstrates that VIML extends to parents, or any one else for that matter, the right to inspect and review the OCAP materials. VIML merely prohibits the copying of the OCAP materials.
Section 1232h, Title 20, U.S.Code (Protection of Pupil Rights)
The second federal statute relied upon by relators is the “Protection of Pupil Rights” law, Section 1232h, Title 20, U.S.Code, which provides:
“All instructional materials, including teacher’s manuals, films, tapes, or other supplementary material which will be used in connection with any survey, analysis, or evaluation as part of any applicable program shall be available for inspection by the parents or guardians of the children.” Section 1232h(a), Title 20, U.S.Code.
Again, VIML makes the OCAP materials available for inspection. However, I would find that the OCAP materials are not instructional materials: they are testing or assessment materials. Therefore, I would not find either of these federal statutes to be applicable to the OCAP materials.
In conclusion, the majority contends that there are tremendous implications for students who take such tests or assessments and that these materials are enshrouded in a cloak of secrecy. I agree that the test materials have a significant impact on students; however, both ODE and VIML allow an opportunity for the public to review these test materials. ODE allows individuals an opportunity to review any proficiency test after the test has been given under secure conditions and provided the individual signs a nondisclosure agreement. *542VIML also has procedures for reviewing the OCAP assessment materials. These procedures allow parents, guardians, educators, elected officials, and members of the general public to review the' testing materials. Of course, security measures are necessary to guarantee the integrity of the test materials. The materials must be reviewed on-site, with a signed nondisclosure of information agreement, and the materials may not be reproduced. But this does not mean that these testing materials are enshrouded in a cloak of secrecy.
The State Board of Education is required by statute to adopt rules establishing a statewide program to test student proficiency. Today the majority grants a writ that jeopardizes the integrity of the statewide program. I believe in upholding our Public Records Act and granting public disclosure for items that legitimately fall within the Act. However, today the majority allows not just public access, but copying of materials whose effectiveness depends upon remaining protected from mass dissemination.
This court’s decision will not serve Ohio’s school children through granting them and their parents access to these testing materials. Rather, it will only weaken the testing system and ultimately waste time and resources to develop new materials. I, therefore, respectfully dissent and would deny the writ of mandamus.
Moyer, C.J., and Cook, J., concur in the foregoing dissenting opinion.