State ex rel. Perrea v. Cincinnati Pub. Sch., Ohio St.3d , 2009-Ohio-4762 Perrea, a teacher at Hughes High School in the Cincinnati Public School District (CPS), filed repeated public records requests seeking copies of the standardized tests that are administered to all of the districts ninth grade students at the end of each semester. Perrea stated that he was concerned about the design, implementation and scoring of the examinations, which were developed by WestEd at a cost of $270,000, and claimed that he did not intend to use the copies for any commercial purpose. CPS refused to produce the exams, claiming that they were not subject to release as a public record because the documents contained secure testing and copyrighted material. Perrea then filed an action with the Supreme Court of Ohio seeking a writ of mandamus to compel CPS to provide him with a copy of the examination questions and other related documents.
In a 5-2 majority decision, the Court held that, while records maintained by school districts generally fall within the statutory definition of public records, the exams were trade secrets under RC 1333.61(D) and, as such, were excepted from production as public records. The court found that because of the amount of money spent to create the exams, the fact that the exams would be of no future value if released, and the districts efforts to maintain the secrecy of the semester exams, CPS had proved that the exams meet the statutory definition of trade secrets. Justice O'Connor issued a separate opinion, joined by Justice Moyer, in which she concurred with the majority that the multiple choice questions were trade secrets, but dissented in regards to the essay questions included in the examinations. Justice O'Connor concluded that the CPS had publicly disclosed the essay questions by placing scoring guidelines for those questions on a password-protected intranet site. She also rejected the districts assertion that, if the questions did not meet the definition of trade secrets, they were excepted from disclosure as copyrighted material. "Because I would hold that the realtor 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," she wrote.