[This opinion has been published in Ohio Official Reports at 

.]




 THE STATE EX REL. THE PLAIN DEALER ET AL. v. OHIO DEPT. OF INSURANCE
                                           ET AL.

  [Cite as State ex rel. The Plain Dealer v. Ohio Dept. of Ins., 

.]
Public records—Mandamus compelling Ohio Department of Insurance to disclose
        withheld documents concerning purchase of Blue Cross/Blue Shield of Ohio
        by Columbia/HCA Health Care Corporation—Limited writ granted, when.
     (No. 96-2247—Submitted May 20, 1997—Decided December 5, 1997).
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} R.C. 3901.321 requires the Ohio Department of Insurance
(“Department”) to conduct a review of any proposed transaction by which a
domestic insurer is purchased by a company not domiciled in Ohio. Pursuant to
the statute, the Department may request documents from both companies to
ascertain their respective financial conditions. Additionally, the Department must
conduct a public hearing under R.C. 3901.321 (F)(1) as part of the review process
prior to approving any merger or other acquisition of control of a domestic insurer.
There are no provisions in this statute for confidentiality of documents submitted
as part of this process. Documents obtained during the review are made available
to the public to allow policyholders of the company being purchased the
opportunity to challenge transactions that could adversely affect their policies.
        {¶ 2} Under another section of the Ohio Revised Code, R.C. 3901.07, the
Department is empowered to conduct an “examination,” at least triennially, of all
insurance companies authorized to do business in Ohio. These examinations
monitor the economic health of Ohio insurers, as well as identify potential
problems, in order that the Department can work with insurers to correct them. The
requirement for a triennial examination has no relation to the review procedure
                            SUPREME COURT OF OHIO




required by R.C. 3901.321.      Written requests for documents and documents
submitted by the insurers in accordance with this process are known as “work
papers” and are protected from public disclosure under R.C. 3901.48.
       {¶ 3} In March 1996, Blue Cross/Blue Shield of Ohio (“Blue Cross”)
announced a sale of a large portion of its assets to Columbia/HCA Health Care
Corporation (“Columbia”), a Tennessee corporation.           On April 10, 1996,
representatives of Blue Cross and officials of the Department met to discuss the
pending transaction. During that meeting, Blue Cross and Department officials
discussed the potential public availability of documents that might be submitted to
the Department, pursuant to the Public Records Act of Ohio, R.C. 149.43. At least
one Department official indicated at that meeting that public disclosure of
documents was a strong possibility, and that “[t]he Department should disclose as
many documents as possible to the public * * * including, initially, the disclosure
memoranda.”
       {¶ 4} On May 9, 1996, pursuant to administrative regulations of the
Department and R.C. 3901.321, Integrated Health Corporation (“Integrated”), a
wholly owned subsidiary of Columbia, filed a Form A with the Department. The
Form A is filed as part of the review process under R.C. 3901.321 by which the
Department determines whether to approve the transaction. It is a statement by the
acquiring insurer containing information relating to the acquisition of the domestic
insurer. It contains information about the acquiring insurer, including its name,
background, information about individuals associated with the insurer, and the
insurer’s future plans with regard to the acquisition. Form A also discusses the
method of acquisition, including the voting securities to be acquired as part of the
transaction and their ownership.
       {¶ 5} Integrated’s filing also included a copy of the principal purchase
agreement between Columbia and Blue Cross. Many of the terms of the principal
agreement are conditioned upon compliance with, limited by, or defined by




                                         2
                               January Term, 1997




reference to the Disclosure Memoranda (“Memoranda”) of Columbia and Blue
Cross. The Memoranda, which are documents containing financial, organizational,
regulatory, contractual, and other information of both companies, were not filed as
part of the Form A. Department officials concede that any review of the proposed
sale could not be completed without the Memoranda.
       {¶ 6} During this process, the Department determined that the size and
complexity of this transaction warranted an examination of Blue Cross under R.C.
3901.07. Although Blue Cross was not scheduled for an examination until later in
the year, the Department considered the results of an examination to be a key factor
in conducting the review of the proposed purchase of Blue Cross by Columbia.
Accordingly, personnel from the Department, separate from those conducting the
review pursuant to R.C. 3901.321, began an examination pursuant to R.C. 3901.07.
This unusual simultaneous review and examination process came to be known as
the “dual-track.” As documents from Blue Cross arrived at the Department,
Department officials would determine the “track” on which each document could
best be used. This process resulted in documents being classified by the track on
which they were directed rather than the process for which they were originally
requested.
       {¶ 7} While conducting an investigation of this transaction, a reporter for
the relator, The Plain Dealer, informed the Department that the Memoranda were
not in the Form A file. The Department then sent three letters to Blue Cross
between June 27, 1996 and August 22, 1996, requesting information to supplement
the Form A filing. The first letter, dated June 27, 1996, requested that various
information, including the Disclosure Memorandum of Blue Cross, be submitted to
supplement the Form A filing. This letter discussed the public nature of any
documents submitted and stated that Blue Cross could possibly obtain
confidentiality for any documents submitted by requesting confidentiality and
providing a legal basis therefor. Blue Cross was further directed to submit redacted




                                         3
                             SUPREME COURT OF OHIO




and unredacted copies of each document for which confidential treatment was
requested. The letter expressly reserved to the Department the right to determine
the confidentiality of any document submitted by stating, “Each request for
confidential treatment will be evaluated and a determination will be made as to
whether any is excepted from public disclosure separately. If any document or part
of a document is found not to meet an exception it will be made part of the
Department’s public files and handled accordingly.”
       {¶ 8} The second letter, dated July 1, 1996, requested further information
regarding the Form A filing. This letter requested minutes of board of trustees’
meetings, documents relating to the noncompetition agreements filed as part of the
proposed transaction, and other items related to the transaction. This letter did not
indicate whether the material submitted pursuant to its request would be considered
by the Department as confidential.
       {¶ 9} The final letter, dated August 22, 1996, discussed the responses of
Blue Cross to the first two letters. The letter first commented that the Department
had not yet received copies of the Memoranda in complete form, indicating that the
submission by Blue Cross of indexes of the Memoranda in a response dated August
12, 1996 was inadequate. For the first time in any of the letters, the Department
indicated that the Memoranda would be treated as confidential work papers under
R.C. 3901.48, pursuant to the examination of Blue Cross under R.C. 3901.07. The
Department made this determination even though the Memoranda were originally
requested because they were needed to complete the Form A filing as part of the
review process under R.C. 3901.321, for which there are no statutory provisions
authorizing the Department to grant confidential status to documents filed pursuant
to a review. In making this decision, the Department deviated from its practice of
receiving the requested documents and then determining their confidential status,
as stated in its June 27, 1996 letter and as subsequently followed in its response to




                                         4
                                January Term, 1997




Blue Cross on July 23, 1996 that certain documents received on July 15, 1996
would not be granted confidential status pursuant to R.C. 3901.48.
       {¶ 10} Despite the practice of the Department to treat all correspondence
related to any ongoing examination under R.C. 3901.07 as confidential work papers
pursuant to R.C. 3901.48, and therefore never to make any of that correspondence
public, the Department placed the August 22, 1996 letter, along with all previous
letters, in the public file consistent with its treatment of correspondence relating to
a review under R.C. 3901.321.
       {¶ 11} The second part of the August 22, 1996 letter discussed the previous
responses of Blue Cross to the earlier two letters. This portion of the letter
discussed claims by Blue Cross that its responses were confidential because the
material contained within those responses constituted trade secrets.              The
Department has no formalized regulations for determining the legitimacy of a trade
secret claim. Rather, its stated practice is to allow insurers to claim that documents
contain trade secrets, and at least one Department official indicated that the
Department generally accepted an insurer’s claim of trade secret status.
       {¶ 12} In this part of the August 22, 1996 letter, the Department did not
accept the claims of trade secret protection as to the letters of Blue Cross dated July
15, July 19, July 30, and July 31, 1996. However, the Department did state that it
would accord trade secret status, pursuant to R.C. 1333.51, to the attachments to
the letters of Blue Cross dated July 30 and July 31, 1996 and for the entire response
of Blue Cross dated August 12, 1996. The Department therefore kept those
documents confidential.      The attachments to the July 30 letter contained
correspondence regarding the principal agreement, correspondence about and
drafts of consulting and noncompetition agreements to be executed with various
Blue Cross officials, pro forma balance sheets of Blue Cross, and income
statements of Blue Cross. Attached to the July 31 letter were additional drafts of
the consulting and noncompetition agreements, biographical information on board




                                          5
                             SUPREME COURT OF OHIO




members, and an audit report. The August 12, 1996 response of Blue Cross
enclosed indexes for the Memoranda.
        {¶ 13} Blue Cross finally submitted the Memoranda as an attachment to a
letter sent to the Department on August 28, 1996. Two days later, the Department
decided that any documents, including the Memoranda, submitted concerning the
Blue Cross transaction would be considered confidential work papers under R.C.
3901.48 pursuant to the examination under R.C. 3901.07. Relying upon R.C.
3901.48 and confidentiality of trade secrets pursuant to R.C. 1333.51, the
Department refused to disclose copies of the attachments to the letters of Blue Cross
dated July 30, 1996 and July 31, 1996, the response of Blue Cross dated August 12,
1996 and its attached indexes to the Memoranda, the letter dated August 28, 1996
and the attached Memoranda, a letter dated September 5, 1996 from the Department
to Blue Cross, and a letter dated September 20, 1996 from Blue Cross to the
Department.
        {¶ 14} The cause is now before us pursuant to an original action in
mandamus brought by the relators, The Plain Dealer and Mark Tatge, to compel
disclosure of the withheld documents.
                              __________________
        Spater, Gittes, Schulte & Kolman, Frederick M. Gittes and Kathaleen B.
Schulte, for relators.
        Betty D. Montgomery, Attorney General; Isaac, Brant, Ledman & Teetor,
Mark Landes and Michael R. Szolosi, Sr., Special Counsel, for respondents Ohio
Department of Insurance and Harold T. Duryee, Superintendent/Director of Ohio
Department of Insurance.
        Porter, Wright, Morris & Arthur, Richard M. Markus, William J. Kelly, Jr.,
Kathleen M. Trafford and Constance M. Greaney; Climaco, Climaco, Seminatore,
Lefkowitz & Garofoli Co., L.P.A., John R. Climaco and Douglas A. Andrews, for
intervening respondent Blue Cross & Blue Shield Mutual of Ohio.




                                         6
                               January Term, 1997




       Cathy J. Levine, Julio Mateo, Jr. and Kathy Collins, in support of relators
for amici curiae, Consumers Union and Community Catalyst.
       Ellen Dollase Wilcox, in support of respondents for amicus curiae, National
Association of Insurance Commissioners.
       Draper, Hollenbaugh & Briscoe Co., L.P.A., H. Ritchey Hollenbaugh and
David L. Petitjean, in support of respondents for amici curiae, Ohio Manufacturers’
Associations and Ohio Chamber of Commerce.
       Vorys, Sater, Seymour & Pease, William D. Kloss, C. William O’Neill and
Laura Westfall Casey, for amicus curiae, Ohio Insurance Institute.
       Bricker & Eckler, Thomas E. Workman and David A. Martin, for amicus
curiae, Association of Ohio Life Insurance Companies.
                              __________________
       MOYER, C.J.
       {¶ 15} The question presented in this original action is whether, under R.C.
149.43, the relators are entitled to requested records held by the Ohio Department
of Insurance and pertaining to the acquisition of Blue Cross by Columbia. Our
analysis of the law and the evidence before us causes us to conclude that the
Department must disclose the requested documents, as redacted by this court,
pursuant to R.C. 149.43. We conclude that the documents are not confidential work
papers under R.C. 3901.48. Further, we have conducted an in camera review and
have determined that some documents, or portions thereof, constitute trade secrets
pursuant to R.C. 1333.61(D). We redact those portions of the records that are trade
secrets. Accordingly, we grant the relators a limited writ of mandamus.
                                         I
       {¶ 16} A preliminary question in resolving this public records dispute is
whether the Department’s denial of the proposed acquisition subsequent to the
filing of this action renders this case moot. Cases are not moot when an actual
controversy exists between adverse litigants. See Cullen v. State ex rel. Toledo




                                        7
                              SUPREME COURT OF OHIO




(1922), 

, 

. In a mandamus action, a writ will be denied
when a question presented by the relator becomes moot. See State ex rel. Breaux
v. Cuyahoga Cty. Court of Common Pleas (1977), 

, 

, 

; Maranze v. Montgomery Cty. Bd. of Elections (1958), 

, 

, 

.
        {¶ 17} Although the Department ultimately denied the proposed
acquisition, this action is not about the acquisition itself. Rather, the subject of this
dispute concerns records related to the acquisition, and the availability of those
records under R.C. 149.43. Given the language in R.C. 149.43(B) that “[a]ll public
records shall be promptly prepared and made available for inspection to any
person,” the analysis in any public records case centers on the availability of the
records, not the content or the underlying event giving rise to the creation or
submission of the disputed documents.
        {¶ 18} We observe that in many public records cases, the defining event
that leads to the creation or submission of documents that trigger a public records
dispute is complete by the time the dispute arises. Documents of those events, such
as minutes of meetings or files created pursuant to a governmental regulatory or
oversight process, are routinely made available to the public in order to serve the
purpose of the Public Records Act. Since the records in question here are kept by
the Ohio Department of Insurance, a public office, and since the availability of
those records is in dispute, there exists an actual controversy in this case, and,
accordingly, R.C. 149.43 compels us to resolve it.




                                           8
                                 January Term, 1997




                                           II
                                           A
       {¶ 19} The Ohio Public Records Act is intended to be liberally construed
“to ensure that governmental records be open and made available to the public         *
* * subject to only a few very limited and narrow exceptions.” State ex rel. Williams
v. Cleveland (1992), 

, 

. A citizen
therefore may gain access to records kept by a public office unless the requested
records fall within an exception to the Act. Among those exceptions is a provision
that prohibits disclosure of “records the release of which is prohibited by state or
federal law.” R.C. 149.43 (A)(1).
       {¶ 20} The Department and Blue Cross rely on this exception in contending
that the documents sought by the relators are exempt from public disclosure. They
assert that the records are confidential work papers under R.C. 3901.48, submitted
solely for an examination conducted under the authority of R.C. 3901.07. We
disagree.
       {¶ 21} R.C. 3901.07, which authorizes the Superintendent to conduct
examinations on behalf of the Department, provides, in pertinent part:
       “The superintendent, or any person appointed by him, shall examine each
domestic insurer at least once every three years as to its condition, fulfillment of its
contractual obligations, and compliance with applicable laws, provided that he may
defer making the examination for a longer period not to exceed five years.” R.C.
3901.07(B)(3).
       “In scheduling and determining the nature, scope, and frequency of any
examination authorized or required by division (B) of this section, the
superintendent shall consider such matters as the results of financial statement
analyses and ratios, changes in management or ownership, actuarial opinions,
reports of independent certified public accountants, and any other criteria he
considers appropriate.” R.C. 3901.07(C).




                                           9
                             SUPREME COURT OF OHIO




       {¶ 22} R.C. 3901.48, governing disclosure of documents submitted
pursuant to an examination, provides, in pertinent part:
       “The work papers of the superintendent or of the person appointed by him,
resulting from the conduct of an examination made pursuant to section 3901.07 of
the Revised Code, are confidential and are not a public record as defined in section
R.C. 149.43 of the Revised Code.” R.C. 3901.48(B).
       {¶ 23} In analyzing whether the disputed records fall within the confines of
the work-paper exception to the Public Records Act, we are required by the unusual
“dual track” procedure employed by the Department to consider the conduct of the
Department in its care of the records as well as the nature of the documents
themselves. Since the Department chose to conduct a public review pursuant to
R.C. 3901.321 and an examination under R.C. 3901.07 simultaneously, we must
initially resolve the determinative factual question of whether the Department
requested the disputed records for the review or for the examination.
       {¶ 24} Neither the Department nor Blue Cross contests that there is no
confidentiality provision that would shield from disclosure documents submitted
pursuant to an R.C. 3901.321 review. Under R.C. 3901.321, the Superintendent of
the Department is required to conduct a public hearing to determine, inter alia,
whether “[t]he acquisition is likely to be hazardous or prejudicial to the insurance-
buying public.”      R.C. 3901.321(F)(1)(f).      Clearly, the Superintendent, in
conducting this inquiry, must have all relevant documents to properly complete the
statutory review and to make a decision that is in the best interests of the public.
       {¶ 25} The public-hearing requirement, together with the absence of any
confidentiality provision in R.C. 3901.321, indicates that the General Assembly
intended for the Department to expose its review to the public. Acquisitions and
mergers of insurance companies potentially affect millions of policyholders, and
this particular transaction was one of the largest and most complex ever reviewed
by the Department. Accordingly, our analysis turns on whether the documents




                                          10
                                January Term, 1997




submitted to the Department were needed to properly facilitate a review of the
proposed transaction.
       {¶ 26} The Form A filing, submitted pursuant to the R.C. 3901.321 review,
contained an attachment that represented the principal agreement between Blue
Cross and Columbia. That agreement refers to the withheld Disclosure Memoranda
over seventy times. Therefore, the Form A filing itself, which all parties concede
is public under R.C. 3901.321, is incomplete without the accompanying
Memoranda. The Memoranda contain language stating that they are part of the
principal agreement, and officials of the Department concede that the Memoranda
were needed to fulfill its statutory requirement of conducting a review under R.C.
3901.321, even had there been no examination under R.C. 3901.07 being conducted
at the same time.
       {¶ 27} In addition, the Department’s own conduct in requesting the
Memoranda can only support the conclusion that the Memoranda were essential to
completing the public statutory review. The first two letters from the Department
to Blue Cross, dated June 27, 1996 and July 1, 1996, contained no statement that
the Memoranda would be granted confidential work-paper status under R.C.
3901.48. Rather, the Department outlined a procedure by which Blue Cross could
request confidential treatment of documents, and the Department would then
determine whether the documents would be held confidential. The Department
reversed its position later by informing Blue Cross in a letter dated August 22, 1996
that it would consider the Memoranda confidential if submitted.             Yet the
Department had no basis for this change in policy, as evidenced by the ample
testimony in the record that there was no communication from the Department to
Blue Cross requesting the Memoranda as part of the confidential examination. The
Department has admitted that until late August 1996, it was uncertain in its
determinations of which documents were public and which were not. It thereafter
attempted to resolve its internal uncertainty by announcing that all future




                                         11
                            SUPREME COURT OF OHIO




submissions would be confidential under R.C. 3901.48. The Department cites the
unusual nature of the transaction and the “dual-track” process as the basis for its
equivocation.
       {¶ 28} While we recognize the complexity of this transaction, the “dual-
track” process is of no importance. Until August 22, 1996, when the Department
deviated from its previous position that all material submitted to it by Blue Cross
would be made public unless otherwise determined, the conduct of the Department
was entirely consistent with the procedure of implementing an R.C. 3901.321
public review. For instance, the Department placed all of its correspondence to
Blue Cross requesting the disputed documents in a public file. This action,
however, was inconsistent with Department practice pertaining to R.C. 3901.07
examinations, where correspondence related to examinations was not made public.
Additionally, members of the confidential examination team requested documents
separate from the letters sent to Blue Cross requesting the Memoranda. Had the
Department originally intended to consider the Memoranda confidential under R.C.
3901.48, the requests would have originated from the examination team only.
       {¶ 29} The Department asserts that if the Memoranda or the other
documents sought by the relators are relevant to a review under R.C. 3901.321 and
an examination under R.C. 3901.07, the documents must be accorded work-paper
status and therefore be withheld from public disclosure under R.C. 3901.48. We
do not agree. In view of the intent of the General Assembly that the Public Records
Act be liberally construed to favor disclosure, the stated purpose of the Department
in requesting the records, and the conduct of the Department in its quest to obtain
the records, we cannot accord these documents confidential work-paper status.
       {¶ 30} The Department is capable of indicating the procedure pursuant to
which it is requesting documents. Where a document is capable of use in both a
review and an examination, the original purpose for collecting the document
controls.




                                        12
                                January Term, 1997




       {¶ 31} We therefore hold that the Department must consistently and
affirmatively indicate its reason for requesting documents from an insurer, and it
may not later alter its position merely because the insurer has refused to submit the
requested records.   Where a document is requested for purposes of an R.C.
3901.321 public review, subsequent use of that document in a confidential
examination cannot remove that document from the public. See State ex rel.
Cincinnati Enquirer v. Hamilton Cty. (1996), 

, 

.
In Hamilton, a case involving a request for 911 tapes, we did not accept the
proposition that public records may later be removed from the public domain:
“Once clothed with the public records cloak, the records cannot be defrocked of
their status.” 

, 

.
       {¶ 32} Although it may cause some administrative burden on the
Department to clearly ensure that its examination and review procedures are
administered independently of each other, the Department is bound to follow the
legislative mandate of treating documents submitted pursuant to R.C. 3901.321 as
public, and keeping confidential those documents submitted due to an R.C. 3901.07
examination. That mandate must be followed by the implementation of clear and
careful procedures. We accordingly find no merit to the argument put forth by the
Department that a loss of confidence in the confidentiality of submissions to the
Department will occur if these documents are ordered released. Rather, our holding
today, requiring the Department to clearly identify its purpose for a document
request, should serve to strengthen the confidence of all parties, especially the
citizens who rely on the Department and its regulatory powers.




                                         13
                            SUPREME COURT OF OHIO




                                         B
       {¶ 33} R.C. 3901.48 is designed to keep confidential those records which
are primarily related to, and submitted pursuant to, an examination of the financial
condition of an insurer. In conducting these examinations, the Department must be
able to exercise its regulatory powers to the fullest extent, and granting
confidentiality to documents submitted pursuant to an examination ensures that the
examination is completed in the most thorough manner possible. Here, however,
the nature of the documents sought by the relators indicates that that the
confidentiality provision of R.C. 3901.48 cannot reasonably be applied.
       {¶ 34} The documents sought do not relate to the examination. They are
instead primarily related to the acquisition. The Memoranda and their indexes were
needed by the Department to complete the public review and contain information
that completes and supplements the terms of the principal acquisition agreement —
a document already made public. Likewise, the attachments to the letters of Blue
Cross dated July 30, 1996 and July 31, 1996 contain information regarding proxy
process related to the acquisition, noncompetition contracts with various directors
caused by the acquisition, a listing of prospective and past officers and directors,
and other information related to the acquisition. We are not persuaded that those
attachments were submitted pursuant to an examination under R.C. 3901.07.
Rather, this information was needed by the Department to determine the full
implications of the acquisition under R.C. 3901.321. Blue Cross itself indicates in
its July 30, 1996 letter that it was submitting information in response to requests
for purposes of the review, not for an examination. Accordingly, none of these
records can be granted work-paper status under R.C. 3901.48.
       {¶ 35} Additionally, the letters requested dated September 5, 1996 and
September 20, 1996 do not discuss the examination, but rather the closing of the
transaction, the rights of the policyholders before and after the acquisition,
retirement payments to former trustees, noncompetition agreements, the status of




                                        14
                               January Term, 1997




Blue Cross as an affiliate as defined by R.C. 3901.32, and other information related
to the acquisition. None of the information in these letters can reasonably support
the conclusion that these documents are confidential work papers under R.C.
3901.48.
       {¶ 36} Given the nature of these documents and the totality of the actions
of the Department in treating similar documents as public, we cannot accept the
August 30, 1996 decision by the Department that it would treat all future
submissions as confidential under R.C. 3901.48. The evidence here is clear that
these documents are not protected by the work-paper privilege.
       {¶ 37} For the foregoing reasons, we hold that none of the documents
requested by the relators are confidential work papers under R.C. 3901.48.
                                        III
       {¶ 38} The Department and Blue Cross also contend that if the documents
requested by the relators are not confidential work papers under R.C. 3901.48, then
their release is prohibited because information contained within the records
constitutes trade secrets that are protected from disclosure under Ohio law.
       {¶ 39} When the Department instituted its review of the proposed
acquisition, two statutes governing trade secrets were in effect. R.C. 1333.51 and
1333.99 provided for criminal penalties against persons unlawfully disclosing trade
secret information. R.C. 1333.51 was repealed by the General Assembly on July
1, 1996. R.C. 1333.61 et seq., the Ohio Uniform Trade Secrets Act, enacted on
July 20, 1994, and still in effect, provides for civil remedies for the
misappropriation of trade secret information.
       {¶ 40} The relators contend that the repeal of R.C. 1333.51 eliminates any
foundation for the proposition that trade secrets are protected under the Public
Records Act. They assert that the Ohio Uniform Trade Secrets Act, R.C. 1333.61
et seq., which is now the sole governing statute on trade secrets, contains no
exceptions from disclosure under the Public Records Act. In effect, the relators




                                        15
                             SUPREME COURT OF OHIO




argue that the repeal of R.C. 1333.51 requires us to hold that our prior case law
establishing an exemption for trade secrets under the Public Records Act, see State
ex rel. Allright Parking of Cleveland, Inc. v. Cleveland (1992), 

,

; State ex rel. Seballos v. School Emp. Retirement Sys. (1994), 

, 

, is not applicable to this action or to cases arising
under R.C. 1333.61 et seq.
       {¶ 41} This transaction, however, and the review by the Department of the
acquisition began before the repeal of R.C. 1333.51.         “Proceedings properly
instituted under existing statutes are ‘pending proceedings’ and are not affected by
a repeal of such statutes, where the repealing statute does not provide therefor, but
may be completed thereunder as though they had not been repealed.” State ex rel.
Speeth v. Carney (1955), 

, 

, 

, paragraph
eleven of the syllabus. Since the review by the Department was instituted prior to
the repeal of R.C. 1333.51, the review was a pending proceeding at the time of the
repeal of the statute. The repealing statute, 1995 Am.Sub.S.B. No. 2, made no
provision for retroactivity. Accordingly, R.C. 1333.51 and our decisions in Allright
and Seballos apply in determining the validity of the trade secret claims made by
Blue Cross and the Department.
       {¶ 42} In determining whether information submitted to a public agency is
exempt from disclosure pursuant to trade secret status under R.C. 1333.51, we have
applied a two-step analysis. See State ex rel. Allright Parking v. Cleveland, 

, 

. First, the court in which the action is brought
must undertake an in camera review of the documents to determine if the
documents contain trade secret information. If the documents do not contain trade
secrets, full disclosure is required. However, if any of the documents do contain
trade secrets, the court must determine whether the statutory requirements for
submitting the documents explicitly places them in the public record. See id.; State
ex rel. Seballos v. School Emp. Retirement Sys., 

, 

                               January Term, 1997




at 832. Where the statute requiring submission of the documents is silent as to the
public record status of the submissions, information in the submitted documents
that constitutes trade secrets pursuant to R.C. 1333.51 is exempt from public
disclosure. See Seballos at 671, 640 N.E.2d at 832.
       {¶ 43} In the instant case, the statute requiring the submission of the
documents requested by the relators, R.C. 3901.321, is silent as to the public
records status of the documents. The statute does require a public hearing as
outlined in R.C. 3901.321(F)(1), but does not expressly state that material
submitted to the Department pursuant to the statute is a matter of public record
under the Public Records Act. Therefore, any portions of the documents in dispute
here that are determined to be trade secrets are not public records and are exempt
from disclosure.
       {¶ 44} Former R.C. 1333.51 defined “trade secrets” according to the
definition provided in R.C. 1333.61, the Uniform Trade Secrets Act. 145 Ohio
Laws, Part III, 5403. R.C. 1333.61(D) states:
       “ ‘Trade secret’ means any 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, or any business information or plans, financial information, or listing
of names, addresses, or telephone numbers, 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.”
       {¶ 45} Additionally, the Eighth District Court of Appeals has set forth the
following factors which should be considered in analyzing a trade secret claim:




                                        17
                             SUPREME COURT OF OHIO




       {¶ 46} (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.
Pyromatics, Inc. v. Petruziello (1983), 

, 7 OBR 165,
169, 

; see Water Mgt., Inc. v. Stayanchi (1984), 

, 15 OBR 186, 188, 

. A business or possessor of a
potential trade secret must take some active steps to maintain its secrecy in order to
enjoy presumptive trade secret status. Water Management at 85-86, 15 OBR at
187-188, 

. A claimant asserting trade secret status has the burden
to identify and demonstrate that the material is included in categories of protected
information under the statute. See Amoco Prod. Co. v. Laird (Ind. 1993), 

.
       {¶ 47} We adopt the foregoing factors in determining whether a trade secret
claim meets the statutory definition as codified in R.C. 1333.61(D), and apply that
definition to the trade secret claims made in the instant case.
                       July 30, 1996 Letter and Attachments
       {¶ 48} Relators first seek to compel disclosure of the July 30, 1996 letter
from the law firm representing Blue Cross—Climaco, Climaco, Seminatore,
Lefkowitz & Garofoli Co., L.P.A. (“Climaco”)—to the Department, including the
attachments to the letter. The letter is enumerated “Document 1” in the Index to
Documents Withheld filed with this court. The attachments to this letter are
enumerated as Documents 2 through 12. Blue Cross no longer asserts trade secret
status for Documents 1, 9, 11, and 12. Therefore, we grant disclosure of those
documents.




                                          18
                               January Term, 1997




       {¶ 49} Blue Cross redacted portions of Documents 2 through 8 prior to
filing these documents with the Department as attachments to the July 30, 1996
letter. Blue Cross made these redactions in spite of the stated procedure of the
Department requiring both redacted and unredacted copies to be filed in the event
of a trade secret claim. Pursuant to an order of July 16, 1997 of this court, Blue
Cross submitted unredacted copies of these documents. In their petition, the
relators seek only those documents actually filed with the Department. Therefore,
our discussion and any disclosure of Documents 2 through 8 are limited to their
redacted form only. We do, however, caution that private parties may not attempt
to avoid the full force of the Public Records Act by filing redacted documents with
a “public office” as defined by R.C. 149.43.
       {¶ 50} Blue Cross no longer asserts trade secret status for Documents 2 and
3. Therefore, we grant disclosure of these documents in their redacted form.
       {¶ 51} Blue Cross does assert that Documents 4, 5, 6, 7, 8, and 10 are trade
secrets because they are concerned with strategy, planning, negotiations, and
corporate compensation. We disagree. R.C. 1333.61(D)(1) provides that a trade
secret will contain “business information or plans, [or] financial information * * *
that * * * 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.”
       {¶ 52} The documents at issue here concern the negotiations between Blue
Cross and Columbia regarding how to settle the issues relating to the language in
the principal agreement. They do not disclose any information about the business
of Blue Cross or its business plans. The documents are negotiation documents for
a sale that did not ultimately occur. Documents pertaining to draft contracts, bids,
and letters of negotiation are not trade secrets. See Wisconsin Elec. Power Co. v
Pub. Serv. Comm. of Wisconsin (1983), 

, 

.
Information related to a single, ephemeral event in the conduct of a business does




                                        19
                             SUPREME COURT OF OHIO




not meet the requirement that a trade secret be “a process or device for continuous
use in the operation of the business.” Restatement of the Law, Torts (1939), Section
757, Comment b. Therefore, these documents do not fit within the definition of
trade secrets contained in R.C. 1333.61(D).
       {¶ 53} Although the information in the documents at issue is not generally
known outside the business, there is no discernible value attributable to Blue Cross
in having this information as against competitors, particularly since the transaction
has been subsequently disapproved. In addition, Document 10, a three-year pro
forma balance sheet of Blue Cross projecting five percent annual increases to the
balance sheet of December 31, 1995, does not reveal any information not already
published other than anticipated increases in revenue and expenses. For the
foregoing reasons, we order disclosure of Documents 4, 5, 6, 7, and 8 in their
redacted form and Document 10.
                       July 31, 1996 Letter and Attachments
       {¶ 54} Relators also seek disclosure of a letter dated July 31, 1996, from
Climaco to the Department, along with attachments to that letter. The letter is
enumerated as “Document 13,” and its attachments are enumerated as Documents
14 through 23. Blue Cross no longer asserts trade secret status for Documents 13,
16, 17, 18, 19, 20, 21, and 22. Therefore, we grant disclosure of these documents.
       {¶ 55} Blue Cross contends that Documents 14, 15, and 23 constitute trade
secrets because they are the subject of a confidentiality agreement with Columbia
and because the documents relate to strategy, planning, negotiations, and corporate
compensation. This contention is meritless. For the reasons stated in our analysis
of the July 30, 1996 letter and its attachments, documents that pertain to draft
agreements, negotiations, or other events ephemeral in the conduct of the business
are not trade secrets. Documents 14 and 15, as redacted, are draft consulting and
noncompetition agreements that do not disclose any information about the business
of Blue Cross or its business plans. Document 23 is a report of the number and




                                         20
                                January Term, 1997




percentages of proxies held by Blue Cross. Blue Cross subsequently revealed this
information in a press release.      Document 23 does not reveal any financial
information; it merely audits the proxy process.
       {¶ 56} Further, we do not agree that the mere existence of a confidentiality
agreement between Blue Cross and Columbia can prevent disclosure of records that
are not determined to be trade secrets and are otherwise subject to disclosure under
the Public Records Act. Blue Cross has not provided this court with such an
agreement. It refers to an agreement in the July 31, 1996 letter. Assuming,
arguendo, the existence of an agreement, an agreement of confidentiality, standing
alone, cannot support a trade secret claim for documents referred to in such an
agreement. Without other demonstrable facts to support a trade secret claim, a party
could easily use a confidentiality agreement as a shield against disclosure. A party
thus cannot meet the statutory trade secret definition by stating that documents for
which trade secret status is claimed are protected merely by reference to them in an
agreement of confidentiality.
       {¶ 57} Therefore, Blue Cross has failed to demonstrate that these
documents meet the statutory definition of trade secrets. Accordingly, we order the
release of Documents 14, 15, and 23. The release of Documents 14 and 15 is
limited to the redacted versions filed with the Department.
                      August 12, 1996 Letter and Attachments
       {¶ 58} The third document sought is a letter dated August 12, 1996 from
Climaco to the Department along with its attachments. The letter is referred to by
Blue Cross as “Document 24.” The attachments are an index to the Disclosure
Memorandum of Blue Cross (Document 25) and an index to the Disclosure
Memorandum of Columbia (Document 26). Blue Cross no longer claims trade
secret status for the letter. Accordingly, we grant disclosure of the letter.
       {¶ 59} Blue Cross asserts trade secret status for the indexes to the
Disclosure Memoranda, claiming that the indexes summarize the contents of the




                                          21
                               SUPREME COURT OF OHIO




Disclosure Memoranda and therefore contain trade secrets as defined by R.C.
1333.61(D). We disagree. Our in camera review of the indexes to the Memoranda
indicates that both the index to the Blue Cross Disclosure Memorandum and the
index to the Columbia Disclosure Memorandum are nothing more than a highly
generalized description of the Memoranda. The indexes do not reveal the substance
of any business information that might yield economic value to a competitor.
Additionally, Blue Cross did not expend great time and expense in creating the
indexes. See Pyromatics, 

, 7 OBR at 169, 

. Thus, we grant disclosure of the indexes (Documents 25 and 26). We redact
certain language in sections 4.6, 4.12, and 4.14 of Document 25, the Blue Cross
Disclosure Memoranda, that refers to federal tax matters and is confidential
pursuant to Section 6103, Title 26, U.S.Code.
                      August 28, 1996 Letter and Attachments
        {¶ 60} The next document sought by the relators is a letter from Climaco to
the Department dated August 28, 1996 (Document 27), with attachments
enumerated as Documents 33, 34, and 36 through 42. Also attached to this letter
are the Disclosure Memoranda (Documents 28 and 29). Blue Cross asserts trade
secret status for paragraphs four and seven of the letter under the heading “General
Information Questions.” Paragraph four refers to the pro forma balance sheets that
we have already ordered disclosed.        Paragraph seven discusses information
pertinent to retained business subsequent to the transaction. This information
relates strictly to the proposed sale. Accordingly, it is not information kept as part
of the ongoing conduct of the business, and it derives no independent economic
value to competitors pursuant to the statutory definition. Therefore, we grant
disclosure of the entire letter.
        {¶ 61} Blue Cross no longer asserts trade secret status for Documents 33,
34, and 36 through 42. Therefore, we grant disclosure of these documents. Blue




                                         22
                                January Term, 1997




Cross is not required to disclose Document 35, as the relators do not request access
to that document.
       {¶ 62} We turn now to the trade secret status of the Disclosure Memoranda.
Blue Cross first claims that that both Memoranda are protected from disclosure in
their entirety as trade secrets because they constitute “information, including the
whole or any portion or phase of any * * * compilation,” as outlined in R.C.
1333.61(D). We reject this contention. Blue Cross appears to argue either that a
set of documents not constituting trade secrets separately may be trade secrets when
considered together, or simply that the Memoranda constitute a compilation that
creates a trade secret document. Under either argument, the contention of Blue
Cross is meritless.
       {¶ 63} Assuming, arguendo, that the Memoranda are a “compilation,” the
statute requires first that the information sought must have an independent
economic value.       R.C. 1333.61(D)(1); see Hoffmann-LaRoche Inc. v. Yoder
(S.D.Ohio 1997), 950 F.Supp 1348, 1358. The Memoranda do not satisfy this
requirement. They are composed of documents already in the public domain and
also of non-public documents. Where documents already in the public domain are
combined to form a larger document, a trade secret may exist if the unified result
would afford a party a competitive advantage. See Anaconda Co. v. Metric Tool &
Die Co. (E.D.Pa. 1980), 

. In the instant case, the Memoranda
do not afford Blue Cross any competitive advantage, nor would a competitor
acquire such an advantage. Most of the documents in the Memoranda contain
information that can be found in annual reports of the company or in documents
that are already public and available to potential competitors.
       {¶ 64} In addition, R.C. 1333.61 grants a document trade secret status only
if the information is not generally known or readily ascertainable to the public. R.C.
1333.61(D)(1). Here, many of the documents compiled in the Memoranda are
already public documents, such as the title to properties owned by Blue Cross,




                                         23
                             SUPREME COURT OF OHIO




matters involving its financial structure that appear regularly on its annual
statement, and pending litigation. Although some of the other information may not
have been released into the public domain, the presence of information already
made public prevents us from concluding that the Memoranda, as a whole, are a
document that is not generally known to the public.
        {¶ 65} We further observe that the Memoranda were needed by the
Department to complete the public review under R.C. 3901.321. The principal
agreement filed by Blue Cross refers to the Disclosure Memoranda over seventy
times. The ramifications of that agreement cannot be fully understood either by the
public or the Department without the Memoranda. Thus, the Memoranda, as an
essential part of an agreement already made public, cannot be viewed as a document
containing such largely sensitive business information that it should be classified,
in its entirety, as a trade secret.   Accordingly, we hold that the Disclosure
Memoranda, in their entirety, do not constitute a compilation of information under
the trade secret statute.
        {¶ 66} We do, however, grant Blue Cross trade secret protection pursuant
to R.C. 1333.61(D) over individual items in its Disclosure Memorandum that
constitute financial information and have an economic value to Blue Cross or its
competitors. These sections of the Disclosure Memorandum concern financial data
relevant to the ongoing business of Blue Cross and do not relate directly to the
transaction, nor do the sections contain information that is merely momentary or
ephemeral to the company. Pursuant to this standard, we grant redaction of the
following sections:
        (1)   Section 2.3(c), because it lists specific data on asset values of Blue
Cross; and
        (2)   Section 2.3(d), a trial balance sheet detailing amounts held in every
financial account of Blue Cross.




                                         24
                                January Term, 1997




       {¶ 67} We also grant redaction of the parts of the Blue Cross Disclosure
Memorandum that constitute business information or plans that are of economic
value to either Blue Cross or its competitors. Those items, which are also part of
the ongoing business of Blue Cross and are not momentary or directly tied to the
transaction are as follows:
       (1)    Section 4.4, because it describes a proposed business venture
unrelated to the transaction;
       (2)    Paragraph three of section 4.7(D), because it discloses the terms of a
contract with a major customer;
       (3)    Sections 4.7(a) and (b), which disclose personal property contracts
and leases;
       (4)    A portion of section 4.11 that refers to a proposed real estate purchase
agreement unrelated to the transaction;
       (5)    Paragraphs three, five, six, and seven of section 4.13, which disclose
terms of contracts with subsidiaries or other organizations;
       (6)    Paragraphs two, seven, ten, eleven, twelve, and thirteen of section
4.18, which disclose existing contracts with health providers, pharmacies, and other
organizations;
       (7)    Paragraph five of section 4.18, which refers to employee insurance
policies;
       (8)    Section 4.18(a) -1, listing all personal property contracts and leases;
       (9)    Section 4.19, which sets forth employee benefit plans;
       (10) Section 4.20, which lists life insurance policies of Blue Cross and
other related agreements of a Blue Cross subsidiary;
       (11) A portion of section 4.21 that refers to a private contract made in
February 1995 that is not related to the agreement; and




                                          25
                             SUPREME COURT OF OHIO




       (12) Paragraphs two, three, four, and part (d) of paragraph one of section
4.23, because it contains details about ongoing affiliation agreements and proposed
affiliation agreements with third parties not part of the transaction.
       {¶ 68} Further, we grant redaction of the following items, the release of
which is prohibited under Section 6103, Title 26, U.S.Code:
       (1)   A portion of section 4.6;
       (2)   Paragraphs five, six, and seven of section 4.12;
       (3)   Paragraphs one through eight of section 4.14; and
       (4)   Section 4.14(a).
       {¶ 69} We further observe that the items we redact above are not generally
known outside the corporate walls of Blue Cross, and that in many cases Blue Cross
has likely expended great time and effort in guarding the secrecy of its private
contracts, business ventures, and agreements related to those ventures.         Our
conclusions thus are consistent with the factors enunciated in Pyromatics.
       {¶ 70} None of the other information contained in the Disclosure
Memorandum of Blue Cross is entitled to trade secret protection under R.C.
1333.61(D). Accordingly, we grant disclosure of the remainder of the document.
We also grant full disclosure of the Columbia Disclosure Memorandum, since it
neither is a trade secret of Blue Cross nor contains any information that would be
considered trade secrets under the statute.
                              September 5, 1996 Letter
       {¶ 71} Blue Cross no longer asserts trade secret protection for a letter,
sought by the relators, issued from the Department to Climaco dated September 5,
1996, referred to as “Document 43”.            We therefore grant disclosure of this
document.
                    September 20, 1996 Letter and Attachments
       {¶ 72} The final set of documents requested by the relators is a letter dated
September 20, 1996 from Climaco to the Department (referred to as “Document




                                          26
                                 January Term, 1997




44”) and its attachments. Blue Cross no longer asserts trade secret protection for
attachments enumerated as Documents 46, 47, 48, 50 through 85, 87, and 88.
Therefore, we grant disclosure of these documents.
       {¶ 73} Blue Cross claims trade secret status for the September 20, 1996
letter and attachments referred to as Documents 45, 49, and 86. The letter contains
no trade secret information except for three sections on page thirteen that discuss
agreements entered into and investments made by Blue Cross with Dean Witter.
These agreements were private and unrelated to the transaction, and constitute
financial information about Blue Cross that is economically valuable. Accordingly,
we grant disclosure of the letter, Document 44, except for the first three subsections
under section 9, subpart “Direct,” on page thirteen.
       {¶ 74} Document 45 is a letter discussing benefits for retiring trustees.
These benefits were a substantial part of the transaction. We are not persuaded that
this information is the type of information that would retain any economic value
for either Blue Cross or its competitors. Blue Cross retains no value by holding
this information as against competitors. Cf. Pyromatics, 

, 7
OBR at 171, 

. Additionally, the letter is a momentary, ephemeral
event in the life of the business that now retains little value given the subsequent
rejection of the transaction. Therefore, this letter is not a trade secret pursuant to
the statute, and we grant its disclosure.
       {¶ 75} Document 49 is a record of minutes from a meeting of the Board of
Trustees of Blue Cross in which the trustees adopted a retirement program for
departing trustees. For the reasons stated above, and also because the remainder of
the minutes contain information that would be publicly available in the annual
report of Blue Cross, we grant disclosure of this document except for the Finance
Committee Report and the Financial Report on page two of the document, which
are protected as trade secrets containing economically valuable financial
information pursuant to R.C. 1333.61(D).




                                            27
                             SUPREME COURT OF OHIO




       {¶ 76} Document 86 is a letter confirming that Blue Cross engaged Dean
Witter to render an opinion as to the fairness, in a financial respect, of the proposed
transaction. Blue Cross asserts that a confidentiality agreement with Dean Witter
establishes this document as a trade secret. We disagree. An agreement of
confidentiality between two private parties cannot alone establish trade secret
protection. Pursuant to the statute, the item for which trade secret protection is
claimed must also have some independent economic value. R.C. 1333.61(D)(1).
Although Blue Cross did undertake efforts here to maintain the secrecy of this
document pursuant to R.C. 1333.61(D)(2), this document has no economic value to
be derived either by Blue Cross or its competitors. Therefore, the letter is not
entitled to trade secret protection under the statute, and we grant its disclosure.
                                          IV
       {¶ 77} Having determined that the law supports no application of the
confidentiality provisions of R.C. 3901.48 to the documents sought by the relators,
and having conducted an in camera review, pursuant to our authority in Allright
Parking, that has analyzed trade secret claims asserted by Blue Cross, we grant the
relators a limited writ of mandamus. We redact, pursuant to Allright Parking and
Seballos, those portions of the documents sought by the relators that we have
determined from our in camera review to be trade secrets as defined by R.C.
1333.61(D).
                                                                Limited writ granted.
       RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
       Cook and LUNDBERG STRATTON, JJ., concur in judgment only.
       DOUGLAS, J., not participating.
                               __________________




                                          28
                               January Term, 1997




       COOK, J., concurring in judgment only.
       {¶ 78} I believe that the proper inquiry in this case is whether the Ohio
Department of Insurance (“the Department”) abused its discretion when it
conferred confidential work paper status upon certain documents by classifying
those documents as having been gathered solely as R.C. 3901.07 examination
documents, despite its purpose to use the documents for its R.C. 3901.321 review.
       {¶ 79} The parties do not dispute that a Form A filing pursuant to R.C.
3901.321 review is a public record subject to disclosure or that information
gathered during an R.C. 3901.07 examination is confidential as “work papers”
under R.C. 3901.48(B).       Moreover, the majority correctly posits that the
Department’s use of a document in an R.C. 3901.07 examination should not
prohibit its public availability when it is also submitted pursuant to an R.C.
3901.321 review. Given each of these facts, however, it remains the Department’s
responsibility to determine what information, beyond the statutory rudiments, an
acquiring party must submit to satisfy the Form A requirements and, hence, what
information belongs in the R.C. 3901.321 public file.
       {¶ 80} In conjunction with an R.C. 3901.321 review, the Department
receives a Form A filing containing statutorily prescribed information about the
party seeking to acquire a domestic insurer and the terms of the acquisition.
Although R.C. 3901.321(C) acts as a guide for determining the information that
must be included in a Form A submission, that filing is made by the acquiring party,
leaving the Department to determine what supplements are necessary.             The
Department may request supplements to the Form A submission and may condition
its approval of the acquisition on supplementation.
       {¶ 81} Here, as noted by the majority, the Department’s original requests
indicate that it sought the disputed documents to supplement the Form A filing and
changed its course only after a failure to comply, and the nature of the documents
in question is such that they relate primarily to the R.C. 3901.321 review, not the




                                        29
                             SUPREME COURT OF OHIO




R.C. 3901.07 examination. The Department itself concedes that the Form A filing
would be incomplete without the Disclosure Memorandum. Additionally, the
deposition testimony of David Randall, the Department’s deputy superintendent,
reveals that at least part of the motivation for treating the documents as confidential
work papers was to reduce the departmental frustration caused by the necessity of
classifying each document received as either public or private depending on its
content.
       {¶ 82} Here it is the combination of these factors, and not any factor in
isolation, that demonstrates an abuse of discretion on the part of the Department in
classifying the documents at issue as solely relating to the R.C. 3901.07
examination — a classification that avoided their public disclosure. In mandamus
cases, this court has defined an abuse of discretion as “discretion exercised to an
end or purpose not justified by, and clearly against, reason and evidence.” State ex
rel. Lucas Cty. Democratic Executive Commt. v. Brown (1974), 

, 

, 

. This is the rare case where the
relator has met that standard of proof. It is, however, an aberrant case that should
not serve as a paradigm for fashioning the broader rules of law stated by the
majority.
       {¶ 83} Because I agree with the majority’s treatment of the trade secrets
issue and would reach the same disposition with respect to the confidential work
papers issue under an abuse of discretion analysis, I concur in judgment only.
       LUNDBERG STRATTON, J., concurs in the foregoing concurring opinion.
                               __________________




                                          30