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Naymik v. Northeast Ohio Areawide Coordinating Agency

Court of Claims of Ohio

April 27, 2018

MARK NAYMIK Requester
v.
NORTHEAST OHIO AREAWIDE COORDINATING AGENCY Respondent

          Sent to S.C. Reporter 5/4/18

          REPORT AND RECOMMENDATION

          JEFFERY W. CLARK SPECIAL MASTER

         {¶1} On October 23, 2017, requester Mark Naymik, a reporter for cleveland.com, made a public records request to Grace Gallucci, Executive Director of respondent Northeast Ohio Areawide Coordinating Agency (NOACA):

My colleagues and I are contacting all the players involved in creating the region's Amazon bid. We are asking those public entities - such as Noaca - to shed some light on the facts, figures and information you were asked to compile for the process. Formally, we are asking for copies of any materials provided to Team NEO (or any other organizations or public entity producing the bid).

(Complaint at 5.) On October 31, 2017, counsel for NOACA denied the request, stating that the requested records were trade secret of all agencies and entities involved in the bid. (Id. at 2.) On November 14, 2017, Naymik filed a complaint under R.C. 2743.75 alleging denial of access to public records by NOACA in violation of R.C. 149.43(B). Following unsuccessful mediation, NOACA filed a motion to dismiss the complaint on February 13, 2018 (Response). On March 8, 2018, NOACA filed copies of the responsive records under seal, and an additional pleading and affidavit. On April 3, 2018, Naymik filed a reply to NOACA's pleadings.

         {¶2} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the court of claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. "[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed." State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, the Act "is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996). Claims under R.C. 2743.75 are determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         {¶3} There is no dispute that NOACA is a public office and that the withheld document is a record of its official functions. NOACA moves to dismiss the complaint on the sole ground that the record, in its entirety, constitutes trade secret.

         Motion to Dismiss

         {¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.

         {¶5} Naymik alleges that the requested records contain "facts, figures and information [NOACA was] asked to compile for a government bid to host the site of a second Amazon, Inc. headquarters (HQ2). While respondent may defend a public records claim by proving that the records are subject to an exception, the defense of trade secret is not proven on the face of the complaint. I therefore recommend that the motion to dismiss be DENIED, and the matter determined on the merits.

         NOACA Claims Trade Secret Only On Its Own Behalf

         In its denial correspondence, respondent asserted that

[t]he requested records are proprietary and a "trade secret" of the Northeast Ohio Areawide Coordinating Agency, Amazon, Inc. and the various public and private entities that supplied information in the records

(Complaint at 2.) However, in its pleadings NOACA claims trade secret only on its own behalf. The court notes that although the Uniform Trade Secrets Act provides that "[a]ctual or threatened misappropriation may be enjoined" by an entity claiming trade secret, NOACA has not informed the court of pending efforts by any entity to enjoin the potential release of the information as a public record. See R.C. 1333.62(A).

         The Withheld Records

         {¶6} NOACA is a regional transportation and environmental planning organization funded by public monies. (Gallucci Aff. at ¶ 2, 20.) It has purchased equipment, assembled data, and programmed software for its Travel Forecasting Model and GIS system to conduct transportation planning analysis, and can present the results as statistics, graphics, and maps. (Id. at ¶ 5-14.) NOACA member entities City of Cleveland and Cuyahoga County requested NOACA to assist them in responding to the Amazon HQ2 request for proposals (RFP) by compiling information to show the impact of the proposed HQ2 site on existing traffic, roadways and transit systems in the NOACA planning area. (Id. at ¶ 4, 7.) Respondent describes the records provided to Team NEO, the agency coordinating the bid, as follows:

The information includes graphic illustrations, in the form of maps, showing relative drive times to various locations, proximity of and travel times related to various modes of public transportation to key locations in the region, availability of active transportation (bike paths and sidewalk networks), traffic congestion and traffic delay statistics, population densities relative to regional transit systems and job hubs. The information also includes special incentives to promote employee transportation on the public transportation system (principally light rail and buses) maintained by the Greater Cleveland Regional Transit Authority. All information is presented relative to the specific Amazon HQ2 site, and the specific location of the proposed site is readily ascertainable from review of the requested information.

(Response at 4-5.) The NOACA document is only a portion of the Team NEO RFP response. (Gallucci Aff. at ¶ 18.) The first two pages of the records submitted under seal are paginated as 24 and 25 - presumably their location within a larger bid document. As paginated by respondent for the court, pages one through eight contain text and statistics promoting Northeast Ohio transportation, entertainment, and freight advantages. (Id. at ¶ 28-32.) Pages nine through 27[1] contain 17 maps and related narrative text. The entire document is couched in promotional language extolling area virtues relating to business, residence, travel, health, education, attractions, entertainment, and dining.

         Ohio Uniform Trade Secrets Act

         {¶7} The Ohio Uniform Trade Secrets Act is "a state law exempting trade secrets from disclosure under R.C. 149.43." State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St.3d 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 19. R.C. 1333.61(D) provides that:

"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.

         NOACA does not allege that the printed HQ2 document would reveal any "scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement." Naymik did not ask NOACA for a copy of the "unique * * * software tools and applications used for its transportation planning responsibilities for the region." (Gallucci Aff. at ¶ 26.) NOACA asserts only that the withheld output from these tools is business information that (1) derives independent economic value from not being generally known, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Response at 4-8.)

         {¶8} An in camera inspection is usually necessary to determine if a claim of trade secret has merit. State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 541-542, 721 N.E.2d 1044 (2000) ("Besser I "). The following factors are used in the trade secret analysis:

(1) The extent to which the information is known outside the business; (2)the extent to which it is known to those inside the business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information; (4) the savings effected and the value to the holder in having the information as against competitors; (5) the amount of effort or money expended in obtaining and developing the ...

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