CITIZENS AGAINST TAXPAYER ABUSE, INC. v. CITY OF OKLAHOMA CITY

CITIZENS AGAINST TAXPAYER ABUSE, INC. v. CITY OF OKLAHOMA CITY
2003 OK 65
73 P.3d 871
Case Number: 98641
Decided: 06/24/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

CITIZENS AGAINST TAXPAYER ABUSE, INC., an Oklahoma Not-for-Profit Corporation, Petitioner/Appellant,
v.
THE CITY OF OKLAHOMA CITY, OKLAHOMA, a municipal corporation, et al., Respondents/Appellees.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY.

¶0 The Petitioner, Citizens Against Taxpayer Abuse, Inc., filed a petition for declaratory judgment and writ of mandamus following the City of Oklahoma City's refusal to fully disclose all of Bass Pro Shop's documents sought pursuant to a request under the Open Records Act,

SUMMARY JUDGMENT AFFIRMED.

Peter B. Bradford, Shelia M. Darling, Conner & Winters, P.C., Oklahoma City, Oklahoma, for petitioner/appellant, Citizens Against Taxpayer Abuse, Inc.
William R. Burkett, Municipal Counselor, Diane Lewis, Deputy Municipal Counselor, Kenneth D. Jordan, Assistant Municipal Counselor, Oklahoma City, Oklahoma, for respondents/appellees, The City of Oklahoma City, Oklahoma, a municipal corporation, et al.

BOUDREAU, Justice.

¶1 Petitioner, Citizens Against Taxpayer Abuse, Inc., appeals the district court's order granting the City of Oklahoma City's motion for summary judgment. Petitioner timely filed a petition in error and motion to retain. We granted petitioner's motion to retain the appeal in this Court on January 23, 2003. We affirm the trial court's order granting summary judgment in favor of the City of Oklahoma City.

I.FACTS AND PROCEDURAL HISTORY

¶2 On March 12, 2002, the law firm of Conner & Winters, P.C., on behalf of certain taxpayers and other citizens, submitted a written request to the City of Oklahoma City (City) under the provisions of the Oklahoma Open Records Act (Act),

¶3 On March 26, 2002, Citizens Against Taxpayer Abuse, Inc. (CATA), a nonprofit corporation, filed a petition for declaratory judgment and writ of mandamus alleging the documents withheld by the City were subject to disclosure under the Act. In the petition, CATA maintained that even if the City initially examined Bass Pro's financial documents to determine credit worthiness, City officials subsequently used the documents or information contained therein for a political purpose - to gain support for the project by arguing it made financial sense to spend $17,000,000 in taxpayer funds. CATA contended the City's actions went beyond the Act's credit evaluation exemption and accordingly the documents were "records" subject to disclosure under the Act. CATA also maintained that the City cannot rely on a confidentiality agreement signed by a city official prior to review of Bass Pro's financial documents to alter the Act's requirement of disclosure of public records.

¶4 The City answered that CATA did not have standing to object to the City's response to the Open Records request because CATA did not make the request at issue.

¶5 Both parties moved for summary judgment. The district judge, after in camera review of Bass Pro's financial documents, denied CATA's motion for summary judgment and granted the City's motion for summary judgment. The trial court held the Act expressly protects Bass Pro's financial documents because the documents were submitted to and reviewed by the City for the purpose of evaluating Bass Pro's credit worthiness. The court held there was no evidence the City abandoned or waived the credit worthiness exemption. Finally, the court determined the City fully complied with the provisions of the Open Records Act. CATA timely appealed and we granted CATA's motion to retain the appeal in this Court.

II.STANDARD OF REVIEW

¶6 Whether summary judgment was properly entered is a question of law which we review de novo. Manley v. Brown,

III.ANALYSIS

A. CATA has Standing to Tender the Issues Under Consideration.

¶7 The City challenges CATA's standing to pursue this action. Standing refers to the legal rights of a person to challenge the conduct of another in a judicial forum. Hendrick v. Walters,

¶8 The Open Records Act provides that "any person denied access to a record of a public body or public official may bring a civil suit for declarative and/or injunctive relief".

¶9 We conclude there is a sufficient connection between Conner & Winters and CATA as it relates to the Open Records request to support CATA's standing to pursue this appeal. Although CATA was not legally formed until after the request at issue was made, two of its three incorporators tendered the request which the City denied. Accordingly, CATA can be said to be substantially aggrieved by the City's refusal to disclose the documents at issue.

¶10 The purpose of a standing requirement is to ensure courts address actual controversies between parties who have sufficient adverse interests. This case has been litigated intensely at both the trial level and on appeal, and there is no danger this Court will be misled by the failure of the parties to adequately explore and argue the issues. Accordingly, we find CATA has a sufficient stake in the outcome of this case to prosecute the appeal. We now turn to CATA's contentions on appeal.

B. The Summary Judgment Record Demonstrates the City's Actions Did Not Amount to a Waiver of the Applicable Exemption Under the Open Records Act.

¶11 The Oklahoma Legislature enacted the Open Records Act,

¶12 The purpose of the Act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.

¶13 The Act exempts certain information and documents from the definition of the word "record". See

¶14 In its summary judgment motion, the City maintained it examined and used Bass Pro's financial documents solely to determine whether Bass Pro was financially able to perform the terms of its proposed lease agreement with the City, i.e., its credit worthiness. In its response, CATA acknowledged that the City initially reviewed Bass Pro's financial documents to evaluate Bass Pro's credit worthiness. However, CATA asserted that the uncontroverted facts establish the City subsequently waived the credit worthiness exemption by using the documents to publicly support its position that the Bass Pro project be implemented, a purpose other than what the exemption is limited to.

¶15 The City, as the moving party, had the initial burden of showing that there is no substantial controversy as to any material fact on the issue of waiver. Bowers v. Wimberley,

¶16 Once the City made the required showing of the moving party, CATA assumed the burden of demonstrating the existence of a material fact that would justify a trial on the issue. Bowers,

¶17 CATA offered the following statement allegedly made by the City Manager: "[b]ased upon the financial information that he reviewed, but did not disclose", he concluded:

1. "the sales estimates of the Oklahoma City Bass Pro … are reasonable";

2. "the analysis of trade area and distances traveled by customers … are reasonable";

3. "Bass Pro, Inc. has the financial resources to meet or exceed the lease and sales expectations in Oklahoma City"; and

4. "[The City Manager] did not see any indication based upon the data reviewed that the City Council should not continue its consideration of the Bass Pro Shops proposal".

A review of the record reveals that these statements were not made by the City Manager, but were made by Catherine O'Connor in a memorandum to the City Manager. In addition, when Catherine O'Connor's statements are reviewed in full (that is, with the conveniently placed ellipses removed), it is clear that her conclusions in this statement refer to the PGAV report. Catherine O'Connor's memorandum actually stated that "the sales estimates for the Oklahoma City Bass Pro Shops included in the Revenue and Economic Impact Analysis Report by PGAV are reasonable" and "the analysis of trade area and distances traveled by customers included in the Revenue and Economic Impact Analysis Report by PGAV are reasonable". (emphasis added) These statements fail to contradict Catherine O'Connor's affidavit and actually support the City's position that city officials relied upon the PGAV report to support other statements.

¶18 CATA points to two statements by the City Manager, one declaring that "we stand by PGAV's report, because of what we've done to verify those numbers" and another "that the Bass Pro project was beneficial economically because it would strengthen the City's sales taxes and even soften future budget cuts". It is clear from the context of these statements that the City Manager was promoting the reliability of the PGAV report prepared by an independent consultant. The statements reveal no specific information about the financial data contained in Bass Pro's financial documents.

¶19 CATA directs this Court to two other statements, one in which the "Mayor argued to the public that the Bass Pro project made economic sense and would generate $5 in tax revenues for every dollar spent in incentives" and another in which Catherine O'Connor stated at a City Council meeting "that the project would generate $24.6 million in direct revenue and $129.9 million in indirect revenues over the 20 year lease period". Both of these statements are opinions of public officials in the form of an economic forecast of future revenues expected to be derived from the project. Neither statement reveals any specific information about the financial data contained in Bass Pro's financial documents. Finally, both statements were made by public officials who had access to the PGAV report.

¶20 Waiver is defined as a voluntary relinquishment of a known right. Faulkenberry v. Kansas City S. Ry. Co., 1979 OK 142, ¶ 6, 602 P.2d 203, 206-07. This Court has not yet addressed when a waiver occurs under the Act. Other state jurisdictions which have addressed the issue have narrowly construed when waivers of exemptions occur under its own public records laws. See e.g., Rackauckas v. Superior Court of Orange County, 128 Cal. Rptr. 2d 234, 240 (Cal. Ct. App. 2002)(exemptions are not waived by interagency disclosures made in confidence); An Unincorporated Operating Div. of Indiana Newspapers, Inc. v. The Trustees of Indiana Univ., 2003 WL 2010385 (Ind.App. May 2, 2003)(university's release of a summary report and sanctions documents relating to a disciplined coach did not result in waiver of exemption; documents did not quote integral and extensive portions of the records and only contained a overview of the findings of the investigation, the trustees' conclusions, and the president's decision); State ex rel. Cincinnati Enquirer v. Sharp, 2003 WL 1093962 (Ohio App. 1 Dist. March 14, 2003)(exemptions are fully applicable lacking evidence the public office disclosed the records to the public).

¶21 Federal courts that have considered the Freedom of Information Act (FOIA), 5 U.S.C. §§ 552, et seq., have similarly concluded that waivers of exemptions from public release of documents can exist, but should be narrowly construed.4 See e.g., Simmons v. United States Dept. of Justice, 796 F.2d 709, 712 (4th Cir. 1986)(exemption remains intact if there has been less than full disclosure of the information from an official source); Afshar v. Department of State, 702 F.2d 1125, 1130-1132 (D.C.Cir.1983)(any showing by the public agency that the information sought is different from the information disclosed to the public defeats the waiver claim); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.C. 1980)(exemption continues to be applicable unless material is formally or informally adopted as the agency's position or used by the agency in its dealings with the public); Murphy v. Department of Army, 613 F.2d 1151, 1155-57 (D.C.C. 1979)(release of documents to a congressional committee did not constitute waiver of exempt status where the documents were not disclosed to the public and where an expectation of confidentiality could be assumed from the nature of the documents).

¶22 The trial judge held a hearing in which he examined the parties motions for summary judgment, heard oral arguments, and conducted an in camera review of Bass Pro's financial documents.5 He subsequently entered judgment for the City on its motion for summary judgment and denied CATA's motion for summary judgment. In the journal entry, he found that the summary judgment record is devoid of anything "to suggest an abandonment or waiver by the Respondent City of the exemption provided by 51 O.S.2001, § 24A.3(1), for financial data obtained by or submitted to a public body for the purpose of evaluating credit worthiness." We agree. Waivers of exemption of public records can exist, but should be narrowly construed. In this instance, there was no release of the documents to the public. An examination of each statement offered by CATA reveals that the statements did not quote any portion of the financial documents, contained no specific information regarding the financial data and did not summarize the information contained in the documents. Rather the statements related to the PGAV report or they were merely the expressions of opinions of public officials. A public body does not waive an exemption merely by relying on the financial information contained in the documents in some fashion. Such a construction would unjustifiably constrain the public body in the exercise of its official duties. CATA has failed to meet its burden of demonstrating the existence of a material fact that would justify a trial on the issue of whether the City waived the credit worthiness exemption. Accordingly, we affirm the trial court's order granting summary judgment to the City.

C. The Summary Judgment Record Contains No Evidence that the City Relied Upon the Confidentiality Agreement to Support Its Decision to Withhold the Documents at Issue.

¶23 CATA also alleged the City refused to disclose Bass Pro's financial documents because of a confidentiality agreement it signed with Bass Pro. The City maintained, however, that it never relied upon the confidentiality agreement to support its decision to withhold the documents at issue. In fact, the City concedes a confidentiality agreement cannot change the statutory requirements of disclosure of public records imposed upon a public body under the Act and that any basis for withholding a public record must be found in the statute.

¶24 The City's summary judgment motion established that Bass Pro's financial documents are exempt from disclosure by virtue of the credit worthiness exemption. The City had a clear legal basis for withholding the documents under the statute. CATA's summary judgment motion does not establish that the City relied on something other than this exemption when it withheld the documents at issue. As long as the City had an adequate basis under the statute to withhold Bass Pro's financial documents, it is entitled to summary judgment. Accordingly, we affirm the trial court's order granting summary judgment to the City.

IV.CONCLUSION

¶25 CATA has standing to tender the issues under consideration because there is a sufficient connection between Conner & Winters and CATA as it relates to the Open Records request at issue. In addition, it is undisputed in the summary judgment record that the City reviewed Bass Pro's financial documents to evaluate Bass Pro's credit worthiness. The record does not demonstrate that the City's actions amounted to a waiver of the applicable exemption under the Open Records Act.6 Finally, the record does not demonstrate that the City relied upon the confidentiality agreement to support its decision to withhold the requested documents. Accordingly, we affirm the trial court's order granting summary judgment to the City.

SUMMARY JUDGMENT AFFIRMED.

WATT, C.J., OPALA, V.C.J., and HODGES, LAVENDER, KAUGER, SUMMERS, BOUDREAU, and WINCHESTER, JJ., concur.

HARGRAVE, J., concurs in result.

FOOTNOTES

1 The City asserts CATA was not formed until March 20, 2002, approximately eight (8) days after the Open Records request at issue was made.

2 1985 Okla.Sess.Laws, ch. 355, created the Oklahoma Open Records Act.

3 In their brief-in-chief, CATA mentions under the Summary of Record that the trial court entered a protection order that prevented them from taking the deposition of Catherine O'Connor. If this can be considered an argument for reversal of summary judgment, it is not supported by legal authority and is deemed abandoned. See Hadnot v. Shaw, 1992 OK 21, ¶ 2, 826 P.2d 978, 981; Wetsel v. Independent Sch. District I-1, 1983 OK 85, ¶ 8, 670 P.2d 986, 991.

4 We find federal precedent concerning Freedom of Information Act proceedings to be persuasive. See Tulsa Tribune Co. v. Oklahoma Horse Racing Comm'n, 1986 OK 24, ¶ 23 n.15, 735 P.2d 548, 555 n.15, superseded by statute on other grounds, see State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision v. Migliaccio, 1996 OK CIV APP 37, 917 P.2d 483.

5 The financial documents at issue were not included in the record on appeal. The appellant bears the burden of presenting the court with a record to support the issues raised. Smith v. The Baptist Foundation of Oklahoma, 2002 OK 57, ¶ 27, 50 P.3d 1132, 1144.