cbareport_Oct12 - page 9

October 2012 CBA REPORT
l
9
feature article
information loses trade-secret protection
when it is submitted in a proposal for a
public project. Generally, information
submitted to a government agency is
exempt from public disclosure only if (1)
a court determines the proposal contains
trade-secret information within the
meaning of OUTSA and (2) the statutory
submission requirement of the public
agency does not make the information of
public record.
Allright Parking of Cleve-
land, Inc. v. Cleveland
, 63 Ohio St.3d
772, 776, 591 N.E.2d 708 (1992);
State ex
rel. The Plain Dealer v. Ohio Dept. of Ins.
,
80 Ohio St.3d 513, 523-524, 687 N.E.2d
667 (1997). Thus, a Court may find that
the business entity has waived trade-
secret protection for baseline pricing and
technical and manufacturing informa-
tion when it divulged that information
in response to a Request for Proposal
(“RFP”). Unfortunately, this may be the
case even if the government actor assures
the contractor that such information
would be kept confidential.
See State ex
rel. Allright Parking of Cleveland, Inc. v.
Cleveland,
8th Dist. No. 57881, 1991 Ohio
App. LEXIS 890, *3 (Mar. 1, 1991), rev’d
by
Allright Parking, supra
, 63 Ohio St.3d
772, 591 N.E.2d 708 (1992)
.
The First Appellate District very
recently applied
Allright Parking
and
Cincinnati Municipal Code 321-61 (man-
dating that “proposals shall be available
for public inspection”) and affirmed the
trial court’s decision denying Plaintiff
Brookville Equipment Corporation’s mo-
tion to enjoin Cincinnati from releasing
Brookville’s unredacted proposals for
the construction of the City’s streetcar
system.
See Brookville Equip. Corp.
v. Cincinnati,
1st Dist. No. C-120434,
2012-Ohio-3648. In denying Brookville’s
request for injunctive relief, the First Ap-
pellate District held that Brookville was
unlikely to succeed on the merits of its
OUTSA claim because it had disclosed
its trade secrets in a proposal subject to
public inspection. A close reading of
Brookville Equip. Corp.
reveals, although
proposals submitted to Hamilton
County public agencies are generally
subject to public inspection under CMC
321-61, that trade-secret information
contained within ancillary documents
or documentation merely related to the
proposal would not be subject to public
inspection if submitted apart from the
proposal. Thus, information ancil-
lary to or related to the proposal that is
separately submitted would retain its
trade-secret protection.
Brookville Equip.
Corp
,
supra
, at ¶22;
Allright Parking,
supra,
63 Ohio St.3d at 775. Perhaps if
the information had been submitted in a
document ancillary to or apart from the
proposal, the Court may have granted
the relief requested.
Interestingly, the dissent in
Brookville
Equip. Corp.
argued that the case should
be remanded with instructions for the
trial court to conduct an evidentiary
hearing, apply the
Allright Parking
test
to the facts, and determine whether,
Brookville’s purported trade secret was a
part of the proposal–and thus waived–or
merely related or ancillary to the pro-
posal under the proper legal standard.
It seems that Judge Fischer’s dissent was
based upon the fact that the record was
silent on whether the redacted purported
secret information was merely related to
or ancillary to Brookville’s proposal.
Id
.
at ¶30.
Frederic is an associate at the Drew Law Firm. He
is a graduate of the University of Cincinnati College
of Law. Joel’s areas of practice are commercial and
business-related litigation, general litigation, estate
planning, representation of individuals and closely-
held businesses, administrative appeals, and appellate
practice.
1 Oftentimes this information comes in the form
of product formation, design, process, procedure,
formula, pattern, compilation, program, device, method,
technique, or improvement, or business information
or plans, financial information, or listing of names, ad-
dresses, or telephone numbers.
2 R.C. 1333.61 et seq.
3 “Person” includes an individual, corporation, business
trust, estate, trust, partnership, and association. R.C.
1.59(C).
4 R.C. 1333.66.
Ivan Tamarkin
Patrick Conway
Elliott Stapleton
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