State ex rel. Rea v. Ohio Department of Education

Francis E. Sweeney, Sr., J. This court is presented with the issue of whether previously administered examinations of the OPT and OVCA are public records subject to disclosure under Ohio’s open records law, R.C. 149.43. Since we find that both the OPT and a portion of the OVCA, specifically the OCAP, are public records, we grant relators a limited writ of mandamus and order the Ohio Department of Education and Ohio State University to release the requested materials. RECORDS SOUGHT Specifically, the relators seek access to the unmarked assessment booklets, unmarked test instructions and questions, and scoring mechanisms of the Twelfth Grade OPT and OVCA relating to previously administered examinations. They do not seek prospective examinations yet. to be administered. Nor do they request that any personal information or individual responses regarding the examinations be made available through this action. — 529 — The Twelfth Grade OPT is one of several statewide proficiency tests established by the State Board of Education pursuant to R.C. 3301.0710.2 The test is administered to ensure that students possess the requisite knowledge suited to that particular grade in the areas of reading, writing, mathematics, science, and citizenship. The OPT is owned by the Ohio Department of Education. Any particular proficiency test contains questions from a question bank that have been used in previous tests, as well as new questions from the bank that have not previously appeared. Each new test also contains five or six new questions that are field tested for use in future test administrations. Thus, no two tests are exactly alike. The OVCA is also a statewide test that was developed to accelerate the modernization of vocational education in response to Am.Sub.S.B. No. 140, effective October 1989 (143 Ohio Laws, Part I, 718), and the Carl D. Perkins Vocational and Applied Technology Education Act Amendments of 1990 (Section 2301 et seq., Title 20, U.S.Code). The OVCA examination is divided into two portions, the Work Keys assessment, and the OCAP. The OCAP is designed to measure a student’s occupational skills in one of approximately forty vocations, as well as employability skills generic to all occupational areas. It is only one of two components that make up the OVCA. The other component of the test, titled “Work Keys,” focuses on four academic skills necessary to operate in the workplace: Applied Mathematics, Locating Information, Reading for Information, and Applied Technology. The questions in each vocational test are drawn from a question bank containing approximately fourteen thousand questions. OSU creates a new test form for each administration of the OCAP. The OCAP portion of the OVCA is developed and owned by OSU, whereas the Work Keys component is owned by American College Testing (“ACT”), a private nonprofit corporation. Unlike the OPT, students are not required to take the OVCA. DISCLOSURE UNDER THE PUBLIC RECORDS ACT In order for documents or materials to be subject to disclosure under the Public Records Act, they must fall within the statutory definition of a “public record.” R.C. 149.011(G) defines “records” as “any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” — 530 — Pursuant to R.C. 149.43, a public record is subject to release, unless it falls within one of the Act’s exceptions. R.C. 149.43(A)(1) 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.” The definition excludes certain records from public inspection, including medical, adoption, probation, and parole records, and “[r]ecords the release of which is prohibited by state or federal law.”' R.C. 149.43(A)(1)(o) (now 149.43[A][1][p]). In order to foster open government, it is well settled that the Public Records Act is to be liberally construed. State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 170, 680 N.E.2d 956, 958. Furthermore, the custodian of the records bears the burden of establishing that the public records are excepted from disclosure. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. Any doubt is to be resolved in favor of providing access to such records. State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177. In reviewing relators’ request, we find that the documents sought are public records. The OPT examinations clearly fall under the definition of a public record. By statute, ODE is required to develop the proficiency tests and ODE admits that it owns the OPT. Although ACT helps ODE develop the OPT, ODE acquires sole ownership of the OPT pursuant to contract. Furthermore, once the examination has been completed and scored, the OPT test results are maintained by ODE. Because ODE develops, owns, and maintains the OPT materials, they are considered public records under R.C. 149.43. Likewise, the OCAP is considered a public record. Those records controlled by OSU meet the statutory definition of a public record, since a state university is considered a “public office” for purposes of the Public Records Act. See Halaby v. Bd. of Directors of Univ. of Cincinnati (1954), 162 Ohio St. 290, 55 O.O. 171, 123 N.E.2d 3. R.C. 149.43 has been construed broadly to include “anything a public office utilizes to carry out its duties and responsibilities.” State ex rel. Jacobs v. Prudoff (1986), 30 Ohio App.3d 89, 30 OBR 187, 506 N.E.2d 927, paragraph one of the syllabus. The OCAP portion of the OVCA assessment is developed and owned by OSU, and utilized to evaluate student’s vocational skills pursuant to the law. Thus, it is a public record. However, we do not consider the Work Keys portion of the OVCA, owned and developed by ACT, to be a public record.3 This court has interpreted the Public Records Act to include records under the control of a public office even if those — 531 — records are not within its custody. State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 661 N.E.2d 187. However, in order for a private entity to be subject to R.C. 149.43, (1) it must prepare the records in order to carry out a public office’s responsibilities, (2) the public office is able to monitor the private entity’s performance, and (3) the public office has access to the records for this purpose. State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 550 N.E.2d 464. Although ACT developed the Work Keys assessment in conjunction with ODE in order to carry out ODE’s responsibilities, the evidence fails to show that the second and third prongs of the Mazzaro test are satisfied. ACT is solely responsible for the development and content of Work Keys. Neither ODE nor OSU oversees this development, and there is no evidence that they either receive or otherwise have access to the Work Keys assessments for such purposes. Therefore, the Work Keys portion of the OVCA is not a public record. Although the OPT and the OCAP portion of the OVCA are public records, we must next decide whether they fall within one of the specific exceptions to the Public Records Act. ODE asserts that the OPT is excluded from disclosure under R.C. 149.43 because its release would violate state law. Specifically, ODE argues that R.C. 3319.151 and Ohio Adm.Code 3301-13-05 prevent the release of these records. R.C. 3319.151, which prohibits assisting a pupil in cheating on a proficiency test, states that “no person shall reveal to any student any specific question that the person knows is part of a test to be administered * * * or in any other way assist a pupil to cheat on such a test.” Likewise, Ohio Adm.Code 3301-13-05 establishes test security provisions for the various proficiency tests. ODE contends that the release of test questions would, in effect, assist pupils in cheating, since numerous questions are continually reused on subsequent proficiency exams. We find ODE’s argument unpersuasive. ODE maintains that it is necessary to reuse such questions so that each-proficiency test is comparable to past tests. However, ODE admits that no two tests are alike. The fact that ODE chooses to reuse past test questions in no way constitutes “cheating” as envisioned under R.C. 3319.151 and Ohio Adm.Code 3301-13-05. The recent passage of Am.Sub.S.B. No. 55 supports the argument that the release of past tests does not violate state law. The statute requires ODE, beginning in 1999, to make public proficiency tests the year after they have been administered. Given the magnitude and significance attributed to these tests, it seems obvious that the General Assembly was concerned with the public’s frustration in gaining access to them. As education of its citizenry is one of the most important functions of the state, the legislature has made it clear its intent that parents, students, and citizens have access to these tests in order to foster scrutiny and comment on them free from restraint. ODE has failed to demon — 532 — strate that disclosure of past examinations of the OPT would violate state or federal law. OSU also asserts that the OCAP is exempt from disclosure, since its release is prohibited by state and federal law, i.e., it is a protected trade secret. R.C. 1333.61(D) defines a “trade secret” as “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 * * * 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.” We have previously held that “[t]he protection of competitive advantage in private, not public, business underpins trade secret law.” (Emphasis added.) State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 264, 602 N.E.2d 1159, 1163-1164. Thus, the question arises whether a public office can even have its own protected trade secrets. Furthermore, once material is publicly disclosed, it loses any status it ever had as a trade secret. Ruckelshaus v. Monsanto Co. (1984), 467 U.S. 986, 1002, 104 S.Ct. 2862, 2872, 81 L.Ed.2d 815, 832. When OSU 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. Thus, it lost any right to be considered, if it ever was, a trade secret. OSU also argues that federal copyright laws prohibit the release of the OCAP. We reject this argument. Exceptions to public records requests do not include the copyright defense where the public records fall under the “fair-use” exception to the federal copyright statute or where the copyrighted material is purchased by the public office or agency that is the subject of the public records request. Sections 107 and 109(a), Title 17, U.S.Code. Relators have no intention of copying these materials for commercial resale purposes. The fair-use exception allows reproduction and copies without infringement of a copyright where the material will be used for purposes such as criticism, research, comment, and for other educational or nonprofit purposes that are not commercial in nature. OSU next argues that under R.C. 3345.14, the General Assembly has specifically recognized that public universities are allowed to control the products of their research. R.C. 3345.14 specifically states that “[a]ll rights to and interests in discoveries or inventions, including patents thereon, which result from research or investigation conducted in any experiment station, bureau, laboratory, or research facility of any state college or university shall be the sole property of — 533 — such college or university;” OSU argues that R.C. 3345.14 is a specific exception to R.C. 149.43, and that as a special provision, R.C. 3345.14 prevails over the general provision. R.C. 1.51. However, there is no indication in the statute itself that it was designed to supersede the requirements of R.C. 149.43, and there is no irreconcilable conflict between the two statutes. Control of dissemination of intellectual property to private persons does not necessarily imply that the legislature intended to exempt public universities from the requirements of the Public Records Act. R.C. 149.43 already provides specific exemption for intellectual property. It is unnecessary to create an additional exception to the Public Records Act beyond the face of the statute. R.C. 3345.14 merely grants state colleges and universities the general contractual power to assign products of research, and is subject to R.C. 149.43. Finally, OSU argues that the OCAP test is excluded from release under the intellectual property record exception to the Public Records Act. R.C. 149.43(A)(5) 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.” (Emphasis added.) The italicized language above is fatal to respondent’s argument. Unlike a design drawing or secret formula kept under lock and key, the OCAP is an assessment tool utilized to evaluate public school students. Construing R.C. 149.43 liberally, we find that the placement and use of the test within the public educational domain is sufficient to constitute public release under the statute. The intellectual property record exception was designed to prevent private persons from using the Public Records Act to appropriate intellectual property for private gain. It was not designed to inhibit the release of materials used to further the state’s educational goals. See, e.g., Progressive Animal Welfare Soc. v. Univ. of Washington (1994), 125 Wash.2d 243, 254-255, 884 P.2d 592, 599. We conclude that previously administered OPT and OCAP examinations are subject to disclosure pursuant to R.C. 149.43. The tremendous implications for students who take such tests or assessments cannot be underestimated. The instruments that evaluate students and determine their capabilities should not be enshrouded in a cloak of secrecy, isolated from the scrutiny and oversight of the general public, concerned parents, and students themselves. ODE and OSU argue that access has always been granted, albeit subject to a nondisclosure form. — 534 — However, beyond a few narrowly limited exceptions, the Public Records Act is unconditional. Once records are deemed public, and not subject to an applicable exception, a public office cannot subvert or avoid its duty to disclose such records through restrictive agreements. Although parents or the public could view the previously administered tests, the nondisclosure agreement effectively negated any chance that legitimate concerns could be raised through public exposure and debate. It is paramount that such tests are subjected to the keen eye of the public to ensure that the state does not stray from its duty to properly educate Ohio’s citizenry. Accordingly, we grant relator’s writ of mandamus in part and order the disclosure of the OPT and OCAP materials in question. Limited %orit granted. Douglas, Resnick and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent. Footnotes [2] Statewide proficiency tests are also administered at the fourth, sixth, ninth, and twelfth grade levels. [3] Relators request the release of the “Reading section,” “Mathematics portion,” and the “Locating Information portion” of the OCAP. However, these titles make up the Work Keys section of the OVCA, not the OCAP. Since it is apparent that relators seek all portions of the OVCA, both Work Keys and OCAP, we construe their pleading accordingly. Civ.R. 8(F).