State ex rel. Besser v. Ohio State University

Lundberg Stratton, J.,

concurring in part and dissenting in part. I concur with the majority that the intellectual-property-record exception does not exempt from disclosure the preliminary business plan and pro forma because they are in the nature of a financial or administrative record, not the product of study or research. See State ex rel. Rea v. Ohio Dept. of Edn. (1998), 81 Ohio St.3d 527, 533, 692 N.E.2d 596, 602.

However, I believe that the withheld documents constitute trade secrets and therefore are excepted from disclosure under R.C. 149.43. Relators made the broad request for “all records of OSU concerning or relating to OSU’s acquisition of Park Medical Center.” OSU produced approximately two hundred seventy-eight documents in response to the request. This dispute, according to OSU, concerns only seventeen documents from the files and documents maintained by Dr. Manuel Tzagournis, OSU’s Vice President for Health Sciences, that OSU withheld from production.

OSU produced evidence in the form of affidavits that these documents are confidential documents made known only to certain persons within OSU who have a need to know the information within them. These documents comprise a business plan, strategies, negotiations, and financial information utilized by OSU in the Park Medical Center acquisition. They may also apply to other potential targets for acquisition. Although a public entity, OSU must nevertheless compete in the health care market with the private sector. OSU expended time and *406money, either internally or through outside consultants, to compile the financial and statistical information in these documents that is not “readily ascertainable” in the public forum. It would take time and money for competitors of OSU to acquire and duplicate this information. Disclosure of these documents would result in a windfall for relators and other competitors of OSU at OSU’s (and consequently, the taxpayer’s) expense. See Pyromatics, Inc. v. Petruziello (1983), 7 Ohio App.3d 131, 134-135, 7 OBR 165, 169, 454 N.E.2d 588, 592.

I believe that these documents collectively comprise a business plan from which OSU derives economic value because the information is not known to others who can obtain economic value from its disclosure and the documents are subject to efforts to keep them confidential. R.C. 1333.61(D). Consequently, they constitute trade secrets exempt from disclosure. The significance of each document must be considered in relation to its contribution to the whole plan. I believe that the trade secret status of these documents should not be analyzed on a piecemeal basis, but instead, they should be considered as part of a plan. Sometimes our quest for openness may narrowly focus on the obscure detail without placing it into the context of the overall picture.

Once these documents are released to the public, competitors of OSU will become privy to OSU’s confidential strategies, plans, valuation techniques, and negotiating tools utilized in complex financial transactions. These documents are valuable to OSU from not being generally known to or not being readily ascertainable by others who can obtain economic value from them. Relators are Susan L. Besser, M.D., a physician, and her husband, an attorney. They are potential competitors who may obtain economic value and undermine OSU’s investment as a result of the disclosure of these documents. I believe this opinion effectively eviscerates the trade secret exemption of the Public Records Act.

Resnick, J., concurs in the foregoing opinion.