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Tesoro Petroleum Corporation v. State2/15/2002
"independent contractor." In common usage, a person who performs services for another is either an employee or an independent contractor, and an important factor in determining one from the other is the right to control retained by the person contracting for the services. Further, the word "employee" denotes in ordinary usage a natural person rather than a partnership or a corporation. In prohibiting disclosure to "anyone other than an authorized employee of the state" the legislature's usage is in accordance with the meaning of "employee" as a natural person. In this case the particular independent contractor with which we are concerned is a private San Francisco law firm, Hosie, Frost & Large, Attorneys-at-Law. There is no dispute that "one may not commonly think of outside counsel as an 'employee' . . . ." Based on the rule that words should be interpreted in accordance with their ordinary and common meaning, I believe that Hosie, Frost & Large, Attorneys-at-Law, is not "an employee of the state" under AS 45.50.592(e).
Alaska Statute 45.50.592 was enacted in 1975 as part of a comprehensive act prohibiting monopolies and combinations in restraint of trade. Governor Hammond's letter to the Speaker of the House transmitting the bill that became this act makes it clear that the bill is patterned on federal law. The Governor noted that what is now section .592 contained a number of procedural protections and limitations:
Section [.592] establishes specific guidelines for the contents of the demand and method of serving the demand upon a person, where the material demanded is documentary evidence. It provides that no demand may seek material which is privileged nor may it be unreasonable. Subsection (e) forbids disclosure of the documentary evidence to anyone other than an authorized state employee without the permission of the person who produced the material.[ ]
Concerning these limitations the Governor wrote:
The theory behind Article 3 [dealing with investigatory powers] is to provide the attorney general with the power he needs, but also to provide detailed procedural controls which will prevent unfair and arbitrary action by the attorney general. Section [.592] of the bill prescribes the contents of a demand and establishes limits on the breadth and scope of the demand.[ ]
Governor Hammond also noted the similarity between federal law and the proposed bill with respect to the power to compel the production of documents: "Article 3 of the bill grants to the attorney general the power to compel production of documents and testimony prior to filing an action in court. Several states have enacted similar provisions. The federal government also has similar powers to compel production of documents . . . ."
Federal law as of 1975 prohibited the disclosure of documentary material produced pursuant to an investigative demand "by any individual other than a duly authorized officer, member, or employee of the Department of Justice." This was changed somewhat in 1976. Section 1313(c) of 15 U.S.C. was divided into four subsections. The third subsection prohibited the disclosure of documentary material to "any individual other than a duly authorized official or employee of the Department of Justice."
Both of these versions of section 1313(c) were interpreted by courts as imposing a firm prohibition on the disclosure of produced materials to individuals not employed by the Department of Justice. Thus in ALCOA v. United States Department of Justice, the court observed concerning the 1970 version of section 1313(c): "The statute . . . absolutely prohibited disclosure to third parties . . . ." In United States v. GAF Corp.
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