Ohio State hides stadium beer sales total

From The Columbus Dispatch

Ohio State University will not disclose its total beer sales at Ohio Stadium this football season, despite repeated requests from The Dispatch.

When asked for total beer sales from this season, Ohio State provided a total net revenue figure of more than $1.35 million. When asked specifically for the gross sales information, Ohio State spokesman Ben Johnson said the information was not public under its contract with its food and beverage vendor.

“In accordance with our contract with Levy Restaurants, gross sales information is not public,” Johnson said in an email last week.

When questioned by The Dispatch about entering into a contract that would potentially violate Ohio public-records laws, Johnson said Ohio State hadn’t done so.

“Public entities like Ohio State cannot enter into contracts that supersede Ohio Public Records law,” Johnson said in an emailed statement. “The university has not done that here, nor would we ever attempt to use contracts to avoid fulfilling our obligations under the public-records law.”

Johnson went on to say, however, that providing the gross beer sales, in addition to the net revenue already provided, would effectively disclose the percentage of the revenue that Levy Restaurants gives to the university, a figure which Johnson said is a trade secret and therefore exempt from disclosure under public records laws.

“Ohio State contracted with Levy Restaurants to provide concession services at Ohio Stadium, and the percentage of the revenue Levy gives to the university for its alcohol sales at Ohio Stadium is a trade secret of both Ohio State and Levy,” he said.

Claiming the trade-secret exemption is a “regular ruse” of many public entities to evade disclosing information, said Fred Gittes, a Columbus lawyer who has handled a variety of cases involving public records.

“Many public agencies use the trade-secret exemption as a device to avoid disclosing important meaningful financial information that taxpayers have a right to know,” he said. “Simply flippantly throwing out the word doesn’t justify it.”

Ohio State’s trade-secret claim in this case “sounds like a stretch,” Gittes said.

Further, Ohio State, in a 2013 news release announcing its contract with Levy Restaurants, stated its overall commission rate with the vendor at the time. The release stated that under the university’s contract with Levy, “the new blended commission rate will be 43 percent.”

To state that the revenue rate for beer sales from Levy is a trade secret conflicts with Ohio State’s previous disclosure of such a rate, said David Marburger, a Cleveland-area attorney and expert in state public-records law.

“If the supplier didn’t have a problem with it in 2013, why do they have a problem with it coming out now?” Marburger said. “The issue isn’t whether the number’s the same, the issue is whether the concept is the same, and the concept is the same.”

Ohio State entered into a seven-year contract with Levy in 2013, before the university began selling beer at Ohio Stadium.

Ohio State insists those contract details from 2013 are completely different from the gross beer sales and the revenue percentage Ohio State receives from it, which The Dispatch has requested. The percentage provided in 2013 is a blended rate representing an average, Johnson said, but the percentage the university receives from Levy differs depending on the situation.

“The general contract details disclosed in 2013 are an entirely different matter than the specific sales information you are now requesting, the release of which would, in fact, significantly compromise our negotiating position with outside entities for events at Ohio Stadium and the Schottenstein Center,” Johnson said in an emailed statement.

The Dispatch has requested Ohio State’s contract with Levy Restaurants.

“I’m skeptical of the notion that the company that supplies the beer has a bona fide trade secret in what the gross sales of beer are at Ohio State, unless that company is seeking to give Ohio State a special deal that it isn’t giving to other universities who have the same gross sales,” Marburger said. “If that’s the case, it shouldn’t be a trade secret.”