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Court Denies Writ To Compel Production of Akron Firefighter Information, Promotion Test Materials

2006-0168. State ex rel. Carr v. Akron , 2006-Ohio-6714.
In Mandamus. Writ denied.
Moyer, C.J., Resnick, Lundberg Stratton, O'Connor and Lanzinger, JJ., concur.
Pfeifer, J., concurs in judgment only.
O'Donnell, J., dissents and would allow the cause to be dismissed.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-6714.pdf

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(Dec. 28, 2006) In a case involving requests for documents under the Ohio Public Records Act, the Supreme Court of Ohio today denied a writ of mandamus sought by two Akron firefighters to compel the City of Akron to release certain records and test materials pertaining to a fire-captain promotional examination. The Court's 6-1 per curiam decision held that various documents to which the firefighters sought access either had already been provided, did not exist, or were excepted from disclosure by various exceptions in the public records statute.

In December 2004, the City of Akron administered promotional examinations for the positions of fire lieutenant and fire captain. The city promotes within the department on the basis of competitive examinations. The city retained E.B. Jacobs, L.L.C., a consulting firm specializing in industrial psychological testing and assessment, to prepare and score the promotional examinations. Bradley Carr and William Howe, firefighter/medics holding the rank of lieutenant in the Akron Division of Fire, both took the promotional examination for captain. In April 2005, the promotional list was certified and the examination scores were mailed to the candidates. Based on the promotional examinations, the city promoted several firefighters to lieutenant and captain.

Carr and Howe are two of 29 plaintiffs in a civil case they filed in April of this year against Akron in the Summit County Court of Common Pleas, Howe v. Akron, in which they allege that the promotional examinations for lieutenant and captain illegally discriminated against certain firefighters based on their age and race.

In May and September 2005, Carr requested that the city provide him with certain records relating to the fire-captain promotional examination pursuant to the federal Freedom of Information Act. In response to these two requests, the city provided him with more than 600 pages of the requested records.

In October 2005, Carr submitted a third request seeking additional documents and information under R.C. 149.43, the Ohio Public Records Act, including the names and scores for the written exam and oral exam, scoring sheets for each answer for every candidate, all documentation on how the test weighting was done, job analysis, reliability statistics, the subject matter experts, and the test validity. The city did not provide additional documents in response to Carr's third request, indicating that it considered portions to be duplicative of earlier requests, and that other requested records either did not exist or fell within certain exceptions to disclosure under R.C. 149.43.

On January 26, 2006, Carr and Howe filed an original action asking the Supreme Court to issue a writ of mandamus compelling Akron to provide them with documents identified in Carr's three 2005 public records request. The parties subsequently stipulated that the city had provided additional documents in response to Carr's public-records requests, including raw scores on the oral and written portions of the fire-captain promotional examination, adverse-impact analyses, and “Fire-Captain Examination Project Schedule, and Supplies and Resources and Project Timeline.” Names and social security numbers of firefighters had been redacted by the city from the copies of the raw scores and the adverse-impact analyses provided to Carr and Howe.

In today's per curiam decision, the Court held that Carr and Howe were not entitled to the additional documents and information they had requested for several different reasons.

The Court noted that Akron was not required to respond to several records requests premised solely on the U.S. Freedom of Information Act because that law is applicable only to federal government agencies and records maintained by federal agencies.

With regard to information denied or redacted from previously provided documents identifying individual test candidates, firefighters who served as subject-matter experts and test criteria assessors by name and other personal identifiers, the Court held that said the city's refusal to disclose such information was justified under R.C. 149.43(A)(1)(p), which excepts “[p]eace officer, firefighter, or EMT [emergency medical technician] residential and familial information” from the definition of a public record.

With regard to Carr's requests for documents disclosing details of how specific exam questions were developed and pilot-tested, how job analysis was conducted and documented, processes used to establish the reliability and validity of the test questions and scoring criteria and other technical aspects of the testing process, the Court held that this information fell within the statutory definition of “trade secrets” that are exempt from disclosure under the Public Records Act.

In support of the latter holding, the Court cited in its opinion affidavits submitted to Akron by E.B. Jacobs, the testing contractor, stating that the company had spent more than 20 years researching, developing and refining its tools of job analysis, test construction and test administration; that the company derives independent economic value from the non-availability of its testing materials and techniques to its competitors or the general public; and that the company had taken significant steps to keep its work product and processes from being publicly released or published – including requiring personnel engaged in test development to sign confidentiality agreements, prohibiting candidates from copying test materials and storing examinations in a locked and secure facility.

Finding that these facts satisfied statutory criteria set forth in R.C. 1333.61(D), the Court concluded that “(t)he city has introduced sufficient evidence to establish that the remaining requested records constitute trade secrets, which are exempt from disclosure under R.C. 149.43. … Based on the foregoing, relators are not entitled to the requested extraordinary relief in mandamus to compel disclosure of the requested records relating to the fire-captain promotional examination administered by Akron. Therefore, we deny the writ.”

The Court's opinion was joined by Chief Justice Thomas J. Moyer, and Justices Alice Robie Resnick, Evelyn Lundberg Stratton, Maureen O'Connor and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in judgment only. Justice Terrence O'Donnell dissented stating that he would allow the mandamus action to be dismissed.

Dennis Thompson, 330.753.6874, for William Howe and Bradley Carr.

Patricia Ambrose, 330.375.2030, for the City of Akron.