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Tesoro Petroleum Corporation v. State2/15/2002
the district court similarly interpreted the language of section 1313(c) to preclude an examination of produced material "by anyone outside the Department of Justice." On appeal in the same case the Second Circuit interpreted 15 U.S.C. ยง 1313(c)(3) to preclude disclosure of CID materials outside the Department: "That subsection provides that no material obtained by CID may be made available for examination by anyone other than the Department of Justice." And in United States v. AT&T;the court stated that section 1313(c)(3) "specifically prohibits disclosure of CID material to persons not members of the Justice Department."
Thus, courts interpreting "authorized employee" language in the federal statute on which the "authorized employee" language in the state statute is patterned have interpreted that language to refer to employees, not independent contractors. In my view we should do likewise.
Interpreting "employee of the state" in subsection .592(e) to have its ordinary meaning is consistent with the policy of the act and does not create necessary conflicts with other provisions of the act. In his letter of transmittal Governor Hammond mentions the "detailed procedural controls" imposed on investigatory demands. One such control is inherent in the distinction between employees and independent contractors. By definition of the respective terms, the state has much greater control over the actions of its employees than it does over the actions of independent contractors. Moreover, independent contractors may serve many masters simultaneously, while state employees work only for the state. Independent contractors thus can have collateral uses for investigatorily demanded information and they may be tempted to use such information. State employees, by contrast, are less likely to be able to use CID information in the service of others, and they are thus not subject to the same temptations as independent contractors.
Another control is inherent in the fact that an employee is a natural person, whereas independent contractors may be partnerships or corporations having, in turn, many employees. Both legally and practically the state has more ability to control the activities of its actual employees than it does the employees of its independent contractors.
Construing "employee of the state" in its ordinary sense would not mean an end to the use by the attorney general of outside counsel. What it would mean is that before material produced may be disclosed to personnel employed by contracting law firms the attorney general must make a showing of good cause under the first sentence of AS 45.50.592(e). The reasons that justify hiring outside counsel might well generally suffice to justify disclosure. But the good cause hearing would give the target company an opportunity to give case- specific reasons to oppose the disclosure, and depending on the circumstances, the court might impose special conditions and safeguards in connection with the disclosure.
Construing "employee of the state" to have its ordinary meaning also does not conflict with the "designee" language in the last sentence of subsection (e). This sentence authorizes the attorney general to appoint a "designee." But this does not imply that the designee must not also qualify as a person to whom disclosure may lawfully be made. Statutes should be construed so that each term has meaning if this is reasonably possible. Constructions in which one term negates another are to be avoided. Thus the power of the attorney general to appoint a designee should not be construed in a way that eliminates the protection built into the statute by the disclosure limitations expressed in the first sentence of sub
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