Providence Journal Co. v. Convention Center Authority

774 A.2d 40, 2001 R.I. LEXIS 168, 2001 WL 699858

• Court: Supreme Court of Rhode Island
• Decided: June 21, 2001
• Docket: 99-320-Appeal
• Status: Published

Opinions

OPINION

GOLDBERG, Justice.

This case came before the Supreme Court on March 13, 2001, on appeal from the entry of summary judgment in favor of the defendant, Convention Center Authority (Authority or defendant). The Providence Journal Company (Journal or plaintiff) has appealed the entry of summary judgment based on its contention that certain records sought by the Journal are subject to disclosure pursuant to the Access to Public Records Act (APRA), G.L. 1956 chapter 2 of title 38. We affirm in part and reverse in part.

Facts and Travel

On July 31,1996, Michael Stanton (Stanton), a reporter for the Journal, sent a written request to the Authority’s executive director seeking records pertaining to the Mobil Celebrity Golf Invitational Tournament (golf tournament) hosted by the Westin Hotel (Westin) on August 3-6, 1995, and the Verrazano Day Banquet (banquet) held at the Convention Center on May 19, 1996. With respect to the golf tournament, the request specifically sought “correspondence, memoranda and other documents regarding negotiations that led to the booking of the event, the offering of comp[limentary] rooms, and the hotel’s ultimate financial gain or loss.” With respect to the banquet, Stanton requested copies of “correspondence, memoranda and other documents regarding negotiations that led to the booking of the event, any discounts, and the Convention Center’s ultimate gain or loss from hosting the event.” Additionally, he sought a breakdown of the complimentary rooms that the Westin has awarded since it opened and for what events and purposes those rooms have been given, as well as information on any other banquets that have received any type of discount.

On August 8, 1996, a letter was sent to Stanton from counsel for the Authority denying his request. Stanton was given several reasons for that denial. The Authority took the position that the information sought by the Journal was not information subject to disclosure pursuant to APRA because “it consists of trade secrets and commercial or financial information which is of a privileged or confidential nature, in addition to such other exemptions and/or protections as are contained in the Rhode Island General Laws.” Further, the Authority denied Stanton’s request on the basis that it was “broad, vague and although not clearly stated, suggests that it will be used for commercial purposes.”

Thereafter, on August 21, 1996, Stanton sent another “narrower request.” In this second request, Stanton sought essentially the same information he had requested in the first instance. With respect to the golf tournament, he sought “contracts signed with tournament promoters and corporate sponsors, as well as records reflecting negotiations leading up to that agreement among hotel management, tournament officials and members of the [Authority] and state Department of Economic Development.” Although Stanton made it clear that he was not interested in the names of the individuals who stayed in the rooms, he requested the number of complimentary rooms provided to the tournament, the value of those rooms, and the profit or loss of the hotel from the event. With respect to the banquet, Stanton requested the “contract for the event, as well as relevant documents reflecting negotiations leading up to the agreement.” Specifically, he sought information about the number of people who attended the dinner and the per person cost of the dinner, both to the Authority and the banquet organizers and attendees, as well as the net profit or loss to the Authority for the event. Stanton reiterated his request for information about other banquets that have been held at the Westin and the Convention Center, as well as the number of complimentary rooms that have been awarded by the Westin since it opened, and how that has affected the net profit or loss to the Authority. Again, the request was denied. In this second denial, counsel for defendant provided certain rate schedules that had been used by the Authority as well as newsletters and general public listings that described events that had been held at the Convention Center. The letter explained that the reasons for not releasing the specific information requested with respect to the golf tournament and the banquet remained the same.

On June 13, 1997, the Journal filed a complaint in Superior Court alleging that the Authority’s failure to make the requested documents available for inspection constituted a violation of the Journal’s rights under APRA. In addition, plaintiff asserted that this refusal violated its rights under the Constitution of the United States, the Constitution of the State of Rhode Island and the common law. The Journal’s constitutional and common law claims were dismissed as the result of a pretrial motion by defendant and are not before the Court. On April 20, 1998, the Journal filed a motion for summary judgment on its remaining claims. The Authority made a timely objection and filed a cross-motion for summary judgment containing six supporting affidavits from individuals familiar with the business of the Convention Center and the Westin.¹ The affiants collectively detailed what they believed to be the anticompetitive effects of publicly disclosing the information sought by the Journal. Each affiant separately reached the conclusion that the information requested by the Journal contained confidential commercial and financial information of a sort that is not typically shared with the public.

In an attempt to depose the affiants before a hearing on the summary judgment motions, plaintiff moved for a continuance. The defendant thereafter sought a protective order to prevent any information learned in these proceedings from being disseminated to the public. The trial justice then conducted an in camera inspection of certain records and affidavits pertaining to the request. These records have not been made part of the record on appeal. In granting the Authority’s motion for a protective order the trial justice stated that she was satisfied, upon reviewing the documents, that the Authority set forth a valid claim of privilege respecting confidential information. Specifically, the trial justice stated,

“it was clear in reviewing these [documents] that in the hands of a competitor, probably someone else in this same business could look at these records and determine certain kinds of trends. That would disadvantage the Convention Center as far as its marketing position is concerned and, therefore, the [c]ourt feels that the Convention Center did, in fact, claim a valid exemption under the Rhode Island Access to Public Records Act, and therefore the [c]ourt grants the motion for protective order.”

On March 25, 1999, the trial justice heard the parties’ motions for summary judgment and thereafter entered an order granting the Authority’s motion and denying that of the Journal. The trial justice stated that there was an “intricate connection” between the documents that were the result of the negotiation process and the contract with the negotiated rate sought by the Journal. Specifically, she stated,

“I think that there is an intricate connection between the documents that are submitted which resulted in the negotiations process and the financial document which is the contract with the negotiated rate that the Journal is seeking. I don’t think based upon how I had looked at these documents that it would be possible to separate out what [the Journal is] looking for without disclosing what the [c]ourt considers [to be] protected under the Act. The documents that are submitted by persons seeking to utilize the Convention Center involve financial records[,] [including] records of insurance [and] customer information^] [that is] information that people presume will be kept confidential when they are engaging in the negotiating process.”

The trial justice further explained that the records sought by the Journal contain confidential financial records, the release of which would have an impact on the Convention Center’s competitive advantage. In agreeing that the enabling statute states that the Convention Center is supposed to operate as profitably as possible, the trial justice noted that the statute “doesn’t say, however, that the public in general with the Providence Journal in particular is supposed to be the entity that monitors that * * The Journal has appealed.

Discussion

On appeal, the Journal contended that the trial justice erred in finding that the records sought from the Authority were exempt from disclosure under APRA. The plaintiff argued that it did not seek any financial information that may be part of the materials provided to the Authority by its customers. Instead, the Journal has argued to this Court that the records requested are the “fruits of the negotiating process between the sponsors of Mobil Golf and the Verrazano Day events, and the Authority, to wit, the contracts for the events, the documents evidencing the negotiations leading up to the agreement, and the provision of complimentary rooms, discounted rates or other benefits.” (Emphasis in the original.) This argument is incorrect. As noted, Stanton’s August 1996 letter specifically included a request for all relevant documents “reflecting [the] negotiations leading up to” the agreements between the parties. (Emphasis added.) This request is not the “fruits” of the process, but is the spade work performed in the garden leading up to the harvest. With the exception of the final contract, the Journal asked to examine the negotiating process itself. The Journal also argued that because the documents requested were “created” as the result of the negotiations between the facilities and the event sponsors, the documents were not “obtained from” the sponsors and therefore were not covered by the exemption, and are thus subject to public disclosure. This argument ignores the fact that documents reflecting the give and take of arm’s length negotiations obviously reflect, at a minimum, a party’s offer, response, counteroffer and the price a prospective customer is willing or able to spend for a specific service. Without regard to which party prepared the material, it amounts to commercial information not ordinarily made public.

The Authority has maintained that the documents sought by the Journal are protected from public disclosure under APRA. Relying on the Critical Mass test set forth in Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871, 879 (D.C.Cir.1992), the Authority contended that the commercial or financial information provided to the government entity on a voluntary basis is confidential, if “it is of a kind that would customarily not be released to the public by the person from whom it was obtained.” Additionally, the Authority argued that the affidavits presented, which were unrebutted, established that the requested material consisted of confidential commercial and financial information that is not ordinarily disclosed to the public by the person from whom it was obtained. Further, the Authority maintained that the affidavits also established that customers who have contacted the Convention Center and the Westin do not expect the commercial and financial information they provide to be made public and, if such materials were made public, it would “severely jeopardize the competitive position and operations of the Convention Center and the Westin.” Although the release of documents that fall squarely within APRA may present a real danger to the continued competitive vitality of these enterprises, it is not determinative of the issues before this Court.

We note at the outset that the hearing justice found and the Authority has argued that the release of the requested records would hurt the Authority’s competitive advantage and conflict with its statutory mission to operate as profitably as possible. However, these considerations, although real and valid, have no bearing on whether records held by a pub-lie body are subject to disclosure under APRA. This Court has previously held that applicability of APRA to records held by a public body is not determined by a balancing test. Simply put, the records are subject to public disclosure unless they fall within one of the enumerated exceptions contained in APRA. See Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 225 (R.I.1998) (rejecting the argument that an administrative agency must demonstrate that relevant privacy interests outweigh the public’s right to access records); see also Providence Journal Co. v. Kane, 577 A.2d 661, 663 (R.I.1990) (holding that “[a]ny balancing of interests arises only after a record has first been determined to be a public record”).

The law is well settled in Rhode Island, that this Court will review a grant of summary judgment on a de novo basis. See Marr Scaffolding Co. v. Fairground Forms, Inc., 682 A.2d 455, 457 (R.I.1996). “In conducting such a review, we are bound by the same rules and standards as those employed by the trial justice.” M & B Realty, Inc. v. Duval, 767 A.2d 60, 63 (R.I.2001) (citing Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996)). The party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute. See Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996). “However, the opposing partly] will not be allowed to rely upon mere allegations or denials in [the] pleadings. Rather, by affidavits or otherwise [the opposing party has] an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact.” Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998).

Documents that Resulted from Negotiations

The stated purpose of APRA is set forth in § 38-2-1. It provides:

“The public’s right to access [public] records * * * and the individual’s right to dignity and privacy are both recognized to be principles of the utmost importance in a free society. The purpose of this chapter is to facilitate public access to [public] records. * * * It is also the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy.”

This Court has recognized that the basic policy of APRA favors public disclosure of the records of governmental entities. Providence Journal Co., 577 A.2d at 663; Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 558 (R.I.1989). We also have observed, however, that “the Legislature did not intend to empower the press and the public with carte blanche to demand all records held by public agencies.” Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1134 (R.I.1992). APRA contains certain exceptions, one of which makes “[t]rade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature” exempt from disclosure. Section 38-2-2(4)(B). Because APRA mirrors the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552 (West 1996), it is appropriate to look to Federal case law interpreting FOIA to assist in our interpretation of the statute.

Like APRA, FOIA provides for the disclosure of records held by governmental agencies, unless the documents fall within the enumerated exceptions. See Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, -, 121 S.Ct. 1060, 1065, 149 L.Ed.2d 87, 95 (2001). FOIA has a similar exemption to the APRA exemption at issue in this case, that provides that “trade secrets and commercial or financial information obtained from a person [that are] privileged or confidential” are not subject to public disclosure. See 5 U.S.C.A. § 552(b)(4). This issue was scrutinized in Critical Mass. In that case, the Court of Appeals for the District of Columbia examined whether the granting of summary judgment in favor of the Nuclear Regulatory Commission (NRC) was in error. The district court concluded that certain requested safety reports provided to the NRC by another entity were commercial and confidential, therefore exempt from disclosure under 5 U.S.C.A. § 552(b)(4).² Critical Mass had sought safety reports prepared by the Institute for Nuclear Power Operations (INPO) that were voluntarily provided to the NRC, conditioned on the promise that the reports would not be released without INPO’s consent. The NRC denied the disclosure request, maintaining that the reports contained confidential commercial information that was exempt from FOIA. Critical Mass then filed suit seeking to compel the disclosure of the reports. The district court found that the documents were “both commercial and confidential and therefore exempt under § 552(b)(4).”

In affirming the district court, the court of appeals reaffirmed the two-part test established in National Parks and Conservation Association v. Morton, 498 F.2d 765 (D.C.Cir.1974), which defined as confidential any financial or commercial information whose disclosure would be likely either “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Id. at 770. The court in Critical Mass confined the test in National Parks to those cases in which a FOIA request is made for financial or commercial information that a person is obliged to provide to the Government. The court added, however, that “financial or commercial information provided to the Government on a voluntary basis is ‘confidential’ for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.” Critical Mass, 975 F.2d at 879. (Emphasis added.) We agree with the holding in Critical Mass and its progeny and adopt the test set forth therein, including the protection afforded to commercial and financial information that the provider would not customarily release to the public.

Here, the Journal specifically sought “documents regarding negotiations that led to the booking of the event,”— documents we deem to fall squarely within the exemption for confidential commercial or financial information contained in APRA. As noted, information provided to the Authority during the give and take of negotiations, including offers, responses and counteroffers, with respect to both the golf tournament and the banquet, including, but not limited to a prospective customer’s budget, insurance needs, attendance projections and funding considerations constitutes confidential commercial or financial information provided for the purpose of negotiating an agreement. Regardless of which side produced the particular document, the information was developed during the negotiation process and is of the sort that would not customarily be disclosed to the public either by Mobil Oil, Inc., or the coordinators of the Verrazano Day banquet. See Judicial Watch, Inc. v. Export-Import Bank, 108 F.Supp.2d 19, 28 (D.D.C.2000) (“documents prepared by the federal government may be covered by Exemption 4 if they contain summaries or reformulations of information supplied by a source outside of the government”); see also Gulf & Western Industries, Inc. v. United States, 615 F.2d 527, 529-30 (D.C.Cir.1979) (documents were not disclosed because release of information would disclose data supplied to government from a person outside the government). Accordingly, we conclude that the hearing justice did not err in finding that the documents reflecting the negotiation process must, of necessity, include confidential financial information derived from the prospective customer that would not customarily be disclosed and cannot be redacted.

The Court recognizes that the situation we face in this case is unique. The Authority is a public corporation, having a separate legal existence from the state, and was created by the General Assembly to establish a suitable facility for conventions, meetings, banquets and the like in furtherance of the economic prosperity of the state.³ Pursuant to the findings of the General Assembly, the Authority is vested with the responsibility of managing and operating these facilities to “the greatest public benefit and at the least public cost.” Thus, the Authority is in the anomalous position of operating as a proprietary enterprise in a highly competitive field, but as a state agency bound by the enactments of the General Assembly. The Authority, by virtue of its enabling act, is subject to APRA.⁴ This, however, also includes the exemptions contained in APRA and the Authority’s concomitant obligation to protect from disclosure the confidential financial information of its clients and prospective clients that might reasonably be expected to remain confidential. It was established, through affidavit that “customers who contract with the [Authority] do not expect that the documents and financial information they provide will be disclosed to the public. * * * [I]t is commonly understood during negotiations that the information shared by the customers * * * will remain confidential.” This evidence is uncontradicted.

Therefore, we reject the Journal’s contention that the information sought is not confidential and privileged commercial or financial information because it consisted of documents and information produced by the Authority during the negotiation process and was not “obtained from” a third party.

However, it was posited by the Convention Center’s general manager that the primary reason for the Convention Center’s ability to attract high profile, long-term and repeat customers are attractive prices and package deals on an event-specific basis compared with other cities, Boston in particular. He explained that disclosure of such information seriously would hinder the Convention Center’s ability to maintain these long-term and repeat customers, as well as to attract new customers because the Authority would be obligated to inform new customers at the start of any business relationship that all the information provided to the Authority relating to that customer’s finances and any documents created relating to events held at the Convention Center and the Westin could be disclosed to the public. Such a situation would not be beneficial to the business venture engaged in by the Authority and could be harmful to the State of Rhode Island. It is clear that the purpose of creating the Authority was to attract business to the State of Rhode Island by maintaining a suitable convention facility. Although we recognize that the mission of the Authority may effectively become unattainable if it is unable to secure business or foster a secure and reliable business relationship because of its compliance with APRA, we suggest that the remedy lies with the General Assembly. The role of this Court is to determine whether an Act of the General Assembly is applicable in a given case, without regard to the resultant hardship.

The Journal had also requested all documents reflecting the Authority’s ultimate profit and loss for both the golf tournament and the banquet and all other similar events. However, it has not been established that any such records exist. Clearly, the Authority is not required to compile that information in response to a request made under APRA.⁵

Final Contract

Although we have determined that documents reflecting the negotiations between the Authority and its prospective customers are covered by § 38-2-2(4)(B) and are not subject to disclosure under APRA, the final agreement reached between the Authority and the parties representing the golf tournament and the banquet is another matter. We recognize that the hearing justice determined that this material may not be segregable. Specifically, she stated it would be impossible “to separate out what [the Journal is] looking for without disclosing what the Court considers is protected under the Act.” However, she made no specific finding relative to the entire agreement; nor are we persuaded that portions of the agreement are statutorily exempt from disclosure. Indeed, the statute contemplates a situation in which any reasonably segregable portion of a public record be made available for public inspection.⁶ Again, we look to federal case law for guidance on this issue. The United States District Court for the District of Columbia has taken the approach that agencies and courts dealing with FOIA requests are obliged to assess whether nonexempt material can reasonably be segregated from exempt material. See Piper & Marbury L.L.P. v. United States Postal Service, No. CIV.A. 99-2383, 2001 WL 214217 (D.D.C. Mar.6, 2001). With respect to contracts, the Piper court suggested that no contract could be exempted from FOIA in its entirety. Specifically the court stated that “[w]hile contracts may certainly contain information, such as the price of goods being sold, the entire contract itself cannot qualify as ‘information’ in any ordinary sense of either word.” Id. at *4. The thrust of the argument is essentially that a contract cannot consist entirely of confidential information, and, based upon the spirit of FOIA, every effort should be made to segregate those portions of the requested documents that contain information exempted from disclosure. See PHE, Inc. v. Department of Justice, 983 F.2d 248, 252 (D.C.Cir.1993) (where the court held that the district court erred in approving the government’s withholding of information in the FOIA request without making an express finding on segregability).

In the case at bar, although we are of the opinion that the documents produced during and as a result of the negotiations between the Authority and Mobil Oil, Inc. and the coordinators of the Verrazano Day banquet are not subject to disclosure, we are not convinced that the final contract is exempt. Once the negotiations are solidified into a final agreement between the parties that agreement, or at least portions of the agreement, should then be available to the public pursuant to APRA.⁷ Obviously, if the agreement includes confidential or privileged financial information of the customer, such as insurance or financing consideration and profit projections, and is segregable, that limited information is subject to redaction.

Conclusion

For the aforementioned reasons, the appeal is sustained in part and denied in part. We deny the Journal’s appeal with respect to the documents produced relative to the negotiations between the representatives of the golf tournament and banquet because the information amounts to confidential commercial or financial information obtained from the Authority’s prospective customers. Further, we adopt the test set forth in Critical Mass to determine what qualifies as confidential commercial or confidential information in the context of APRA. However, with respect to the final contracts entered into by the parties, we reverse the trial justice’s ruling based upon our determination that final contracts between the parties are subject to APRA and the public’s right of access. Accordingly, the judgment appealed from is affirmed in part and reversed in part. The papers in this ease are remanded to the Superior Court in accordance with our decision.

1 . The affidavits were given by: Nicholas A. Langella, general manager of the Convention Center; Timothy P. Kirwin, general manager of the Westin; James P. McCarvill, executive director of the Authority; James H. Massone, general manager of the Service America Corporation; Martha J. Sheridan, interim president and vice president of the Providence-Warwick Convention & Visitors Bureau; and Meghan M. McSkimming, general manager of Production Group International.

2 . 5 U.S.C.A. § 552(b)(4) (West 1996) provides: "This section does not apply to matters that are — * * * trade secrets and commercial or financial information obtained from a person and privileged or confidential * *

3 . General Laws 1956 § 42-99-2 provides:

"Legislative Findings. — It is hereby found that:

(1) There is a serious shortage of suitable facilities for conventions and related exhibition, meeting, banquet, and other facilities customarily incident thereto, in the state;

(2) Private enterprise alone is not able to provide the necessary facilities;

(3) The public welfare and the further economic development and the prosperity of the state requires the establishment of these facilities and the financing thereof, as provided in this chapter; and

(4)The facilities will be managed and operated with the greatest public benefit and at the least public cost if provision is made for leases, concessions, and other contracts with persons, firms, and corporations, as provided in this chapter."

4 . Section 42-99-17 provides in pertinent part:

"Applicability of other laws. — The corporation shall be subject to the provisions of chapter 2 of title 38 ('Access to Public Records') * *

5 . Section § 38 — 2—3(f) provides:

"Nothing in this section shall be construed as requiring a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made [except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.”]

6 . Section 3 8 — 2—2(4)(ii) provides:

"However, any reasonably segregable portion * * * of a public record excluded by this section shall be available for public inspections after the deletion of the information which is the basis of the exclusion, if disclosure of the segregable portion does not violate the intent of this section.”

7 . Again, we recognize that this holding may have an adverse impact on the Authority’s competitiveness because its privately owned competitors are not required to make public their contracts and presumably the prices charged for the use of their facilities. However, the resolution of this issue rests with the General Assembly and not this Court.