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Court Rules District-Wide Exam Questions Are Exempt from Disclosure As ‘Trade Secrets’

2008-0748.  State ex rel. Perrea v. Cincinnati Pub. Schools, Slip Opinion No. 2009-Ohio-4762.
In Mandamus.  Writ denied.
Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and O'Connor, J., concur in part and dissent in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4762.pdf

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(Sept. 17, 2009) The Supreme Court of Ohio ruled today that the questions used in semester examinations administered to all ninth-grade students in the Cincinnati Public School District are not “public records” subject to disclosure under the state’s Public Records Act because they fall within a statutory exception for trade secrets. The Court’s 5-2 majority decision was authored by Justice Judith Ann Lanzinger.

Beginning in 2007 Paul Perrea, a teacher at Cincinnati Hughes High School, filed repeated requests with Cincinnati Public Schools (CPS) under the Ohio Public Records Act, R.C. 149.43, seeking  copies of the standardized examinations that are administered to all CPS 9th grade students at the end of each semester to measure their achievement in four different academic subjects. Perrea sought copies of the actual examination questions and other documents related to the creation, administration and grading of the CPS semester exams.  His requests specified that he would use the copies only “for criticism, research, comment, and/or education” and indicated his intention to have the content of the exams evaluated by an independent expert for “fairness, accuracy and validity.”

CPS denied the records requests, asserting that the exam questions and other requested documents are exempt from disclosure under exceptions in the state Public Records Act for trade secrets and copyrighted materials. In April 2008, Perrea filed an original action in the Supreme Court of Ohio, asking the Court to issue a writ of mandamus compelling the school district to provide him with copies of the exam questions and other requested documents.

Writing for the Court in today’s decision, Justice Lanzinger noted as a threshold matter that records maintained by school districts generally fall within the statutory definition of public records. 

She wrote: “It is unquestioned here that CPS is a public office for purposes of the Public Records Act. In fact, R.C. 149.43(A)(1) defines ‘public record’ to mean ‘records kept by any public office, including ... school district units.’... Under R.C. 149.011(G), records are subject to the Public Records Act if they are documents created or received by the public office that ‘serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.’ In its Strategic Plan 2006-2011, CPS determined that it would assess students frequently on their progress toward meeting the performance standards and that it would provide teachers with common benchmark assessments for each grade and for each subject. The semester exams were created to fulfill these policy decisions. ... Therefore, unless an exception to disclosure applies, the requested ninth-grade semester exams are subject to disclosure under R.C. 149.43.”

In analyzing the school district’s argument that the exam questions fall within a statutory exception for trade secrets, Justice Lanzinger wrote: “The Ohio Uniform Trade Secrets Act, R.C. 1333.61 through 1333.69, is a state law exempting trade secrets from disclosure under R.C. 149.43. R.C. 1333.61(D) defines ‘trade secret’ as ‘any information ... 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.’

“CPS established that it spent over $750,000 on the development of the ninth-, tenth-, and eleventh-grade semester exams.  And it is axiomatic that the semester exams would have no or minimal value if they were made public before they were administered. Also, CPS established that it would have to spend a considerable amount of money to recreate the tests every year. Estimates indicate that replacing just half the questions on the ninth- and tenth-grade exams would exceed $270,000.  Due to the cost to create new exams, CPS claims that it will no longer be able to administer semester exams if the tests are made public. There is also evidence that CPS has taken steps to maintain the secrecy of the semester exams. Students are not permitted to make copies of the exams or possess cell phones, cameras, or similar devices when the exams are administered. And although the teachers are not required to sign confidentiality agreements, they are instructed that they are not allowed to keep or make copies of the exams. In addition, teachers have only limited access to the exams. The exams are kept in a secure area at a central location until they are administered, and all exams must be returned the week after they are administered. These security efforts are similar to those found sufficient in State ex rel. Carr v. Akron (2006) ...”

“To rebut CPS’s assertion that the exams are trade secrets, Perrea relies on State ex rel. Rea v. Ohio Dept. of Edn., (1998),” wrote Justice Lanzinger.  “However, Rea is distinguishable. First, in Rea, we questioned whether public entities could even possess trade secrets. ... We answered that question in the affirmative in State ex rel. Besser v. Ohio State Univ. (2000) ... Second, Rea involved two tests –the Twelfth Grade Ohio Proficiency Test (‘OPT’) and the Ohio Vocational Competency Assessment (‘OVCA’) – that consisted of questions from a question bank. For the OVCA, the question bank contained approximately 14,000 questions. ... Every year, the Ohio Department of Education creates a new OPT using questions that have been used in previous years as well as new questions from the bank that have not previously been used; thus no two tests are identical. The Ohio State University does the same for the OVCA. Here, the CPS administers the exact same tests year after year.  There is no question bank, and a question is removed only after it has been determined to be flawed.”

“We further note that ordering disclosure of the semester exams would open the door for students to have access to these tests as well, undermining the tests’ effectiveness in measuring student ability if the test is given in the future. That is why CPS claims that it will no longer administer the test if we order disclosure. Thus, ordering disclosure will reduce CPS’s ability to evaluate student learning.  Such a result is not in line with the policy behind Public Records Act. ‘We must ... construe statutes to avoid unreasonable or absurd results.’ State ex rel. Cincinnati Post v. Cincinnati (1996). ... For the foregoing reasons, we hold that Perrea is not entitled to disclosure of these records, because they are trade secrets and thus are not public records.”

Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.

Justice Maureen O’Connor entered a separate opinion, joined by Chief Justice Thomas J, Moyer, in which she concurred with the majority holding that the 40 to 45 multiple-choice questions that constitute the majority of the CPS semester examinations are trade secrets and therefore exempt from disclosure. She dissented, however, from the majority’s conclusion that CPS had not “publicly disclosed” the content of  four constructed-response (short-answer or essay) questions  included in each of the 9th grade examinations by publishing scoring guidelines for those questions on an intranet site intended for use by CPS teachers but accessible to anyone who knew the site’s online address.

Justice O’Connor also rejected CPS’s argument that, if the constructed-response questions did not qualify as trade secrets, they were still exempt from disclosure under the Public Records Act as copyrighted material.  She wrote: “The ‘fair use’ exception to federal copyright law is codified at Section 107, Title 17, U.S. Code and provides that ‘the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.’ ... Perrea has no intention of copying the requested ninth-grade semester exams for commercial purposes. He intends to use the copies for criticism, research, comment, and/or education. Nor is there any evidence of the effect of Perrea’s proposed use of the exams on the potential market for the exams’ copyrighted portions. Therefore, I would hold that CPS did not establish that the requested semester exams are excepted from disclosure as copyrighted materials. Because I would hold that relator is entitled to partial relief, I would grant a writ of mandamus to compel disclosure of the constructed-response questions of the ninth-grade semester examinations. In all other aspects, I would deny the writ.”

Contacts
Ted L. Wills, 513. 721.5707, for Paul Perrea.

Mark J. Stepaniak, 513.381.2838, for Cincinnati Public Schools.

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