Marina Management Services, Inc. v. Commonwealth, Cabinet for Tourism

STEPHENS, Chief Justice. This case questions the scope of the exemption contained in KRS 61.878(l)(c) of the Kentucky Open Records Act, addressing whether it applies to a situation where confidential audited financial reports of a privately owned corporation have been submitted to a public agency pursuant to a license agreement with the State. Also at issue is the effect of KRS 61.878(5) on this fact situation and whether it effectively denies the privately owned corporation the ability to claim exempt status. The Franklin Circuit Court dissolved a restraining order which prohibited the Cabinet for Tourism from delivering to the Legislative Program Review and Investigation [319] Committee (LPRIC) audited financial statements of Marina Management Services (MMS). The financial reports are in the possession of Tourism pursuant to a License Agreement between MMS and Tourism.1 The agreement between the parties requires that rent be paid in the form of a percentage of gross receipts that range from 5-12% depending upon the various categories for food and gas sales. The agreement requires that in order to determine the rental amount owed, MMS must submit a copy of an audit of its books and accounts no later than 3½ months after the end of MMS’ fiscal year. By dissolving the restraining order, the Franklin Circuit Court enabled LPRIC, within the parameters of its own discretion and policy, to disclose not only the information pertinent to determining the amount of rent due to the Commonwealth, but all other financial information available in the audited reports. On appeal, the Court of Appeals upheld the trial court, holding that the audited reports were not exempt from disclosure under the Kentucky Open Records Act. After reviewing the statutes, we believe the records in question are exempt from disclosure under the Open Records Act. The pertinent exemption reads as follows: The following public records are excluded from application of KRS 61.870 to 61.884 [The Open Records Act] and shall be subject to inspection only upon order of a court of competent jurisdiction.... [[Image here]] (e)l Upon and after July 15, 1992, records confidentially disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records .... KRS 61.878(l)(c)(l). The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditor’s Office. On these facts alone, the exemption clearly applies. LPRIC, however, argues that it is in need of these records to perform its functional purpose, and that the language of subsection (5) to this provision ensures that these records can be obtained by LPRIC. KRS 61.878(5). This Court is not attempting to defeat the purpose of LPRIC’s need for the records. LPRIC, which is a statutorily created legislative committee, is designed to “[m]ake studies of the operations of state agencies” to ensure that “the programs and activities are being operated efficiently, [and] effectively” or to determine “[w]hether there is a need for change in any authorized activity or program.” KRS 6.910. The legislature recognized that LPRIC may be in need of confidential documents to perform its function by stating that “information supplied at the request of the committee or its staff ... may be classified as confidential by the public agency and not subject to release under KRS 61.872.” Id. The facts on this record indicate that Tourism has and will continue to classify these documents as confidential. As a result, it is difficult for this Court to agree with the contention that the need for these records outweighs the protections instilled by the legislature by passing the specific statutory exemption under which these records fall. The legislature itself recognizes that the purposes of the Committee can still be achieved without requiring disclosure of documents deemed confidential, not only by [320] the company whose financial data is in question, but also by the public agency in possession of those documents. The statutory scheme creating the committee provides the means by which these documents can be utilized, and this is the method that should be utilized, thereby protecting the interests of all parties involved and maintaining the legislative intent behind both the LPRIC statutes and the Open Records Act. As a result, we hold that these records do qualify for exempt status under KRS 61.878(l)(c)(l). LPRIC may not obtain them under the Open Records Act and may not disclose any information already obtained from those reports. However, LPRIC, if it chooses to do so, may obtain access to these documents for its use in evaluation pursuant to KRS 6.910. These records, however, have been classified confidential and may not be disclosed to the public. As a result of the foregoing, this Court orders that an injunction be entered, prohibiting LPRIC from obtaining and disclosing the records requested pursuant to the Open Records Act. LAMBERT, REYNOLDS, STUMBO, JJ., and Special Justice SCOTT FURKIN, concur. WINTERSHEIMER, J„ files a dissenting opinion which SPAIN, J., joins. Footnotes [1] Other marina operators, who also have submitted financial reports for this purpose include Kentucky Dam Marina, Green River Associates, and Barren River Marina. These operators are also parties to this action. For the purpose of brevity, when we refer to MMS, we are referring to all parties.