State ex rel. Besser v. Ohio State University

[This opinion has been published in Ohio Official Reports at 

89 Ohio St.3d 396

.]




 THE STATE EX REL. BESSER ET AL., APPELLANTS, v. OHIO STATE UNIVERSITY
                                   ET AL., APPELLEES.

        [Cite as State ex rel. Besser v. Ohio State Univ., 

2000-Ohio-207

.]
Public records—Trade secrets—Mandamus sought to compel Ohio State
        University to make available for inspection all records concerning or
        relating to university’s acquisition of Park Medical Center, a private
        Columbus hospital—Writ granted in part and denied in part.
         (No. 99-394—Submitted May 9, 2000—Decided August 9, 2000.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} On February 18, 1999, relator Kenneth R. Besser (“Besser”), an
attorney, sent a letter to respondent Ohio State University (“OSU”), stating that he
represented his wife, relator Susan L. Besser, M.D., and Bexley Family Medicine
in their lawsuit against OSU, and that he was requesting under R.C. 149.43, Ohio’s
Public Records Act, that OSU make available for inspection “all records of OSU
concerning or relating to OSU’s acquisition of Park Medical Center,” a private
Columbus hospital.        OSU had created and collected records concerning the
acquisition.
        {¶ 2} On February 23, the Bessers filed this action for a writ of mandamus
to compel respondents, OSU, OSU Hospitals Board, Manuel Tzagournis, M.D.,
OSU Vice-President for Health Sciences, OSU Hospitals Board, Grayce M. Sills,
Chairperson of the OSU Hospitals Board, and R. Reed Fraley, M.D., Secretary of
the OSU Hospitals Board and Executive Director of the Ohio State Hospital
Systems (collectively referred to as “OSU”), to provide access to the requested
records under R.C. 149.43. The Bessers then voluntarily dismissed their pending
lawsuit against OSU in the Court of Claims, and OSU provided them with access
                             SUPREME COURT OF OHIO




to requested minutes of OSU Hospitals Board and OSU Strategic Planning
Committee meetings relating to the acquisition.
       {¶ 3} The matter was referred to the court’s mediation program, and during
that process, on April 8, 1999, OSU publicly announced its acquisition of Park
Medical Center. Following mediation, the matter was returned to the regular
docket, and we granted an alternative writ and issued a schedule for the presentation
of evidence and briefs. 

86 Ohio St.3d 1439

, 

713 N.E.2d 1050

. We also dismissed
as moot the Bessers’ claims relating to OSU Hospitals Board and OSU Strategic
Planning Committee minutes. Id.
       {¶ 4} The parties clarified the scope of the Bessers’ records requests and
OSU provided them with some responsive records relating to the Park Medical
Center acquisition. OSU withheld the remainder of the requested records, claiming
that R.C. 149.43(A)(1)(p) (now R.C. 149.43[A][1][q] [see Am.Sub.S.B. No. 55,
Baldwin’s Ohio Legislative Service Annotated (Vol.7, 1999), L-904]) and
149.43(A)(1)(m) and (5) exempted them as trade secrets, intellectual property, and
attorney-client privileged material. The Bessers claimed that (1) although former
R.C. 1333.51 exempted the disclosure of trade secrets under R.C. 149.43, the repeal
of former R.C. 1333.51 in 1996 removed any trade secrets exemption, (2) public
entities like OSU could not have trade secrets, and (3) OSU had not established that
the records withheld from the Bessers constituted trade secrets.
       {¶ 5} Upon a consideration of the evidence and briefs, we held that “trade
secrets remain exempt from disclosure under R.C. 149.43(A)(1)(p) (now R.C.
149.43[A][1][q]) and that governmental entities like OSU can have trade secrets,
but that respondents should submit the records they claim to be exempt as trade
secrets and intellectual property records to the court under seal for an in camera
review.” State ex rel. Besser v. Ohio State Univ. (2000), 

87 Ohio St.3d 535, 543

,

721 N.E.2d 1044, 1051

. We also ordered OSU to submit records that they have
already provided to the Bessers in response to their public records request, upheld




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OSU’s claimed exemption for two of the requested records because they were
privileged attorney-client records, and denied the Bessers’ request for attorney fees.

Id.,

87 Ohio St.3d at 542-543

, 

721 N.E.2d at 1050-1051

.
       {¶ 6} This cause is now before the court upon our in camera review of the
records.
                               __________________
       Kenneth R. Besser, for relators.
       Betty D. Montgomery, Attorney General, Mark R. Weaver, Special Counsel
to the Attorney General, Lisa Wu Fate and Jan Alan Neiger, Assistant Attorneys
General, for respondents.
                               __________________
       Per Curiam.
       {¶ 7} In reviewing the records withheld by OSU, the precept guiding our
analysis is that the inherent, fundamental policy of R.C. 149.43 is to promote open
government, not restrict it. State ex rel. The Miami Student v. Miami Univ. (1997),

79 Ohio St.3d 168, 171

, 

680 N.E.2d 956, 959

. Consistent with this policy,
exceptions to disclosure must be strictly construed against the public records
custodian, and the custodian bears the burden to establish the applicability of an
exception. State ex rel. McGowan v. Cuyahoga Metro. Hous. Auth. (1997), 

78 Ohio St.3d 518, 519

, 

678 N.E.2d 1388, 1389

.
       {¶ 8} With these guidelines in mind, we initially consider OSU’s assertion
that two of the withheld records are excepted from disclosure as intellectual
property records under R.C. 149.43(A)(1)(m). The intellectual-property-record
exception was designed to prevent private persons from using the Public Records
Act to appropriate intellectual property for private gain. State ex rel. Rea v. Ohio
Dept. of Edn. (1998), 

81 Ohio St.3d 527, 533

, 

692 N.E.2d 596

, 602. R.C.
149.43(A)(5) defines “intellectual property record” as “a record, other than a
financial or administrative record, that is produced or collected by or for faculty or




                                          3
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staff of a state institution of higher learning in the conduct of 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.)
        {¶ 9} In construing R.C. 149.43(A)(5), the words used must be construed in
accordance with rules of grammar and common usage. Nibert v. Ohio Dept. of
Rehab. & Corr. (1998), 

84 Ohio St.3d 100, 102

, 

702 N.E.2d 70

, 72. Financial
records relate to the business system of managing money and investments, and
administrative records concern the management and performance of the executive
duties of a government, institution, or business.          See Garner, Black’s Law
Dictionary (7 Ed.1999) 44 and 644; Webster’s Third New International Dictionary
(1986) 28 and 851.
        {¶ 10} Under R.C. 149.43(A)(5), financial and administrative records do
not constitute intellectual property records that are exempt from disclosure under
R.C. 149.43. The two records claimed by OSU to be intellectual property records
are OSU’s preliminary business plan and pro forma for the Park Medical Center
transaction, which include charts and tables outlining financial calculations and
projections. These records are both financial records. They contain financial
calculations concerning the acquisition of Park Medical Center, as well as
administrative records, i.e., they concern OSU’s administrative decision to acquire
the hospital.
        {¶ 11} Therefore, the intellectual-property-record exception of R.C.
149.43(A)(1)(m) and (A)(5) does not exempt these records from disclosure.
        {¶ 12} OSU next contends that all of the withheld records, including the
preliminary business plan and the pro forma, are exempt from disclosure under
R.C. 149.43 because they are trade secrets.          Trade secrets are exempt from




                                           4
                                   January Term, 2000




disclosure under the “state or federal law” exemption of R.C. 149.43. Besser, 

87 Ohio St.3d at 540

, 

721 N.E.2d at 1049

.
       {¶ 13} R.C. 1333.61(D), part of Ohio’s adoption of the Uniform Trade
Secrets Act, defines “trade secret” to include “any information, including * * * any
business information or plans, financial information, or listing of names * * * 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.”
       {¶ 14} We have also adopted the following factors in analyzing a trade
secret claim:
       “(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 information; and (6) the amount of time and expense
it would take for others to acquire and duplicate the information.” State ex rel. The
Plain Dealer v. Ohio Dept. of Ins. (1997), 

80 Ohio St.3d 513, 524-525

, 

687 N.E.2d 661, 672

, citing Pyromatics, Inc. v. Petruziello (1983), 

7 Ohio App.3d 131

, 134-
135, 7 OBR 165, 169, 

454 N.E.2d 588, 592

.
       {¶ 15} An entity claiming trade secret status bears the burden to identify
and demonstrate that the material is included in categories of protected information
under the statute and additionally must take some active steps to maintain its
secrecy. See Fred Siegel Co., L.P.A. v. Arter & Hadden (1999), 

85 Ohio St.3d 171, 181

, 

707 N.E.2d 853, 862

.




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                               SUPREME COURT OF OHIO




           {¶ 16} We apply the foregoing factors in determining OSU’s trade secret
claims regarding the various records it has withheld from the Bessers.
   2/4/99 Memorandum to OSU Officials from OSU Employee Regarding Asset
     Purchase Agreement for Park Medical Center and Draft Asset Purchase
                                      Agreement
           {¶ 17} OSU claims that the memorandum is a trade secret because of a
conclusory statement in an affidavit of the executive director of Ohio State
Hospitals Systems that it “derives potential economic value from not being
generally known to, and not being readily ascertainable to, persons who can obtain
economic value from its disclosure.” The memorandum, however, in and of itself,
does not disclose any information that retains any potential economic value for
either OSU or its competitors. See Plain Dealer, 80 Ohio St.3d at 527, 

687 N.E.2d at 674

. Instead, it merely references a copy of an asset purchase agreement without
disclosing its terms. 

Id.

           {¶ 18} OSU also withheld the draft asset purchase agreement referred to in
the memorandum. The draft agreement relates to the since-completed acquisition
of Park Medical Center by OSU. In Plain Dealer, we relied on commentary from
the Restatement of Torts to hold that “[i]nformation related to a single, ephemeral
event in the conduct of a business does not meet the requirement that a trade secret
be ‘a process or device for continuous use in the operation of the business.’ ” 

Id.,

80 Ohio St.3d at 526, 

687 N.E.2d at 673

, quoting Restatement of the Law, Torts
(1939), Section 757, Comment b; see, also, Wisconsin Elec. Power Co. v. Pub. Serv.
Comm. of Wisconsin (1983), 

110 Wis.2d 530

, 

329 N.W.2d 178

, holding that
documents relating to draft contracts, bids, and letters of negotiation are not trade
secrets.
           {¶ 19} The Commissioners on Uniform State Laws who drafted the
Uniform Trade Secrets Act, as adopted in Ohio, noted “[t]hat the definition of ‘trade
secret’ [in the Uniform Act] contains a reasonable departure from the Restatement




                                           6
                                  January Term, 2000




of Torts (First) definition which required that a trade secret be ‘continuously used
in one’s business.’ ” Uniform Trade Secrets Act, Sec. 1, Comment (1990), 14
U.L.A. 437, 439; Minuteman, Inc. v. Alexander (1989), 

147 Wis.2d 842, 852-853

,

434 N.W.2d 773, 777

.         The broader definition in the Act, as well as R.C.
1333.61(D), “extends protection to a plaintiff who has not yet had an opportunity
or acquired the means to put a trade secret to use” and “includes information that
has commercial value from a negative viewpoint, for example the results of lengthy
and expensive research which proves that a certain process will not work could be
of great value to a competitor.” (Emphasis sic.) 14 U.L.A. 439.
          {¶ 20} Therefore, the mere fact that the draft asset purchase agreement
relates to a single event, i.e., OSU’s acquisition of a private hospital, and is not
continuously used in OSU’s business does not preclude it from being a trade secret
that is exempt from disclosure.
          {¶ 21} But there still must be evidence that the draft agreement constitutes
a trade secret. OSU did not introduce sufficient evidence to establish that the draft
agreement retains potential, independent economic value from not being readily
ascertainable by proper means by competitors. R.C. 1333.61(D)(1). In fact, even
OSU’s conclusory affidavit statement covers only the February 4, 1999
memorandum and not the draft agreement to which it refers. There is also no
evidence that the draft agreement was actually adopted or which, if any, of its terms
have potential economic value in future transactions involving OSU.
          {¶ 22} Consequently, the February 4, 1999 memorandum and the draft
agreement do not constitute trade secrets and are subject to disclosure under R.C.
149.43.
          1/28/99 OSU Preliminary Business Plan for Park Medical Center
          {¶ 23} OSU claims that the preliminary business plan drafted by Arthur
Andersen Healthcare Services for OSU’s proposed acquisition of Park Medical
Center is also a trade secret. Like the other withheld records, OSU relies on




                                           7
                             SUPREME COURT OF OHIO




conclusory affidavit statements to support its claims. For example, OSU provided
affidavit evidence that “[r]elease of strategic plans and other negotiation
information surrounding The Ohio State University’s purchase of Park Medical
Center even after the conclusion of negotiations would put The Ohio State
University Hospitals at a significant economic disadvantage.” (Emphasis sic.)
        {¶ 24} OSU argues that based on this evidence, if it enters into any future
negotiations similar to the Park Medical Center transaction, opposing parties could
use these secrets to determine OSU’s valuation process, negotiating style, and
internal process for making and receiving offers, and that competitors can use this
information even now to attack, undermine, and circumvent OSU’s business
strategies.
        {¶ 25} Notably lacking, however, is any factual evidence to support these
conclusory statements and argument. The assumptions made as well as the process
of valuing Park Medical Center’s future five-year financial performance if acquired
by OSU are restricted to that transaction, based mainly on interviews with the
hospital’s staff. There is no credible evidence that this specific valuation process
would in any way benefit OSU in future transactions involving the acquisition of
other private hospitals or that the assumptions underlying OSU’s valuation of a
potential purchase target would be comparable in future purchases. Nor is there
evidence that the valuation process is sufficiently unique in the hospital industry
that competitors would obtain a cognizable economic benefit from its disclosure.
In fact, OSU has already publicly disclosed a detailed appraisal of Park Medical
Center that OSU used in its acquisition determination. The disclosed appraisal also
includes a projection of income and expenses for Park Medical Center for five years
and beyond.
        {¶ 26} In addition, a record is entitled to trade secret status “ ‘only if the
information is not generally known or readily ascertainable to the public.’ ” State
ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency




                                          8
                                 January Term, 2000




(2000), 

88 Ohio St.3d 166, 173

, 

724 N.E.2d 411

, 418, quoting Plain Dealer, 80
Ohio St.3d at 529, 

687 N.E.2d at 675

. Some of the information contained in the
preliminary business plan is already readily ascertainable to the public from
financial reports and other public sources, e.g., Ohio Hospital Association records.
        {¶ 27} Further, the plan contains seven pages of numerical “service-line
definitions,” and there is no evidence that OSU retains any economic benefit in
keeping these numerical designations private.
        {¶ 28} There is, however, one page of the preliminary business plan that
satisfies the definition of a trade secret. This page lists the names of the top patient-
volume physicians of Park Medical Center and their characteristics. The disclosure
of this page would permit OSU’s competitors to determine which physicians
affiliated with Park Medical Center produce the most revenue, and competitors
could target these physicians in order to increase their revenues, to the detriment of
OSU. This list is similar to a business’s customer list, which constitutes an
intangible asset that is presumptively a trade secret when the owner of the list takes
measures to prevent its disclosure in the ordinary course of business to persons
other than those selected by the owner. State ex rel. Toledo Blade Co. v. Univ. of
Toledo Found. (1992), 

65 Ohio St.3d 258, 264

, 

602 N.E.2d 1159, 1163

; see, also,
1 Milgrim on Trade Secrets (1999), 1-475-476, Section 1.09[8][g], noting that the
effectiveness and good performance of key sales and other personnel can be
protected trade secrets.
        {¶ 29} Therefore, aside from one page of the preliminary business plan
containing the names and characteristics of the high-patient-volume physicians of
Park Medical Center, the plan does not contain trade secrets.




                                           9
                            SUPREME COURT OF OHIO




   1/5/99 Outline of Emergency Department Staffing Contract and Profit/Loss
                                     Analysis
       {¶ 30} OSU contends that the outline, which it used to negotiate the
emergency department staffing contract for the Park Medical Center transaction, is
a trade secret. Again, however, OSU failed to meet its evidentiary burden to
establish how disclosure of this information, specific to the completed transaction,
would benefit OSU’s competitors. There is also no evidence that the proposed
contractual terms in the outline were actually included in any finalized staffing
contract. These records must be disclosed.
       Summaries Describing Goals for Park Medical Center Transaction
       {¶ 31} OSU claims that its summaries concerning its goals in acquiring
Park Medical Center are exempt from disclosure as trade secrets. But the majority
of the information in these summaries has already been disclosed to the Bessers
through previously released summaries or, like the preliminary business plan, does
not retain potential, independent economic value from not being readily
ascertainable by proper means by OSU’s competitors.
                        December 2, 1998 Electronic Mail
       {¶ 32} This electronic mail message specifies the average nursing salary,
square footage, and total acreage for Park Medical Center before its acquisition by
OSU. The message contains information that is either readily ascertainable from
other sources or that does not possess potential, independent economic value
following the completion of the acquisition of Park Medical Center by OSU. The
document must be disclosed.
                          Pro forma for the Acquisition
       {¶ 33} OSU next asserts that its pro forma created for the transaction is
exempt as a trade secret. The pro forma contains financial projections and the
assumptions made in calculating the projections. Like the preliminary business
plan, which contains comparable assumptions and financial projections, the pro




                                        10
                                 January Term, 2000




forma is restricted to the transaction, and there is no specific, credible evidence that
the methodology used in the acquisition of Park Medical Center would be useful in
future transactions, i.e., the methodology does not appear to have potential,
independent economic value to OSU’s competitors either now or in the future.
Therefore, the pro forma must be disclosed.
              2/5/99 Status Report on Park Medical Center Transaction
          {¶ 34} The next document for which OSU claims trade secret status is a
status report on the acquisition of Park Medical Center. This document contains
information that has already been publicly disclosed by OSU in other records as
well as information that would not provide potential, independent economic benefit
to OSU’s competitors. The status report is not a trade secret.
    Printed Notes of OSU Transaction Meetings, Lists of Team Members and
                                Working Assumptions
          {¶ 35} The printed notes of OSU meetings concerning the transaction and
related records also do not constitute trade secrets. Knowledge of this information,
including working assumptions for the operation of Park Medical Center in relation
to OSU, is either readily ascertainable, e.g., the configuration of the board of
trustees of Park Medical Center after it was acquired by OSU, or not of any
cognizable benefit to OSU’s competitors.
January 11, 1999 Memorandum Regarding List of Park Medical Center Staff and
                                    Top Admitters
          {¶ 36} The memorandum and related list reveal the names of the top
patient-volume members of the medical staff at Park Medical Center. Like the one
page of OSU’s preliminary business plan containing similar information, these
records constitute trade secrets and are therefore exempt from disclosure under R.C.
149.43.




                                          11
                             SUPREME COURT OF OHIO




             Note and Research on Potentially Comparable Hospitals
       {¶ 37} Finally, OSU asserts that research on two New York City hospitals
specializing in certain surgeries is a trade secret and, hence, not subject to
disclosure. This research, however, appears to have been taken from sources
readily available to the public, e.g., American Hospital Association Guide,
magazine articles, and financial reports. And there is no evidence concerning either
the amount of effort or money expended in obtaining and developing this
information. Pyromatics, 

7 Ohio App.3d at 135

, 7 OBR at 169, 

454 N.E.2d at 592

.
Therefore, these records are subject to disclosure.
                                    Conclusion
       {¶ 38} In sum, for the most part, OSU’s reliance on conclusory affidavit
statements is insufficient to satisfy its burden to identify and demonstrate that the
records withheld and portions of records redacted are included in categories of
protected information under R.C. 1333.61(D). Fred Siegel Co., L.P.A., 

85 Ohio St.3d at 181

, 

707 N.E.2d at 862

. OSU did not establish that these records derived
actual or potential independent economic value from not being generally known to,
and not being readily ascertainable to, persons who can obtain economic value from
their disclosure. R.C. 1333.61(D)(1). For example, OSU did not introduce specific
factual evidence concerning the savings effected and the value to OSU in having
the information as against its competitors, the amount of effort or money expended
by OSU to obtain and develop the information, and the amount of time and expense
it would take for OSU’s competitors to duplicate the information. Plain Dealer, 80
Ohio St.3d at 524-525, 

687 N.E.2d at 672

. Our conclusion is consistent with our
duty in public records cases to strictly construe exemptions from disclosure under
R.C. 149.43 and to resolve any doubts in favor of disclosure of public records. See
State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1997), 

80 Ohio St.3d 261

, 264 and 266, 

685 N.E.2d 1223

, 1227-1228.




                                         12
                                January Term, 2000




       {¶ 39} Based on the foregoing, we grant a writ of mandamus to compel
respondents to provide the Bessers with access to all portions of the withheld and
redacted records, with the exception of the one page of the preliminary business
plan and the memorandum and related list containing the names of the top patient-
volume medical personnel at Park Medical Center.
                                              Writ granted in part and denied in part.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
       RESNICK and LUNDBERG STRATTON, JJ., concur in part and dissent in part.
                               __________________
       LUNDBERG STRATTON, J., concurring in part and dissenting in part.
       {¶ 40} 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.
       {¶ 41} 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.
       {¶ 42} 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




                                         13
                              SUPREME COURT OF OHIO




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
money, 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

.
       {¶ 43} 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.
       {¶ 44} 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.




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                       January Term, 2000




RESNICK, J., concurs in the foregoing opinion.
                      __________________




                                15