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Tesoro Petroleum Corporation v. State2/15/2002
terial shall be available for inspection and copying by the person who produced the material or an authorized representative of that person. The attorney general, or a designee, may use copies of the documentary material as the attorney general or designee considers necessary in the enforcement of this chapter, including presentation before a court; however, material that contains trade secrets may not be presented except with the approval of the court in which the action is pending after adequate notice to the person furnishing the material. (Emphasis added.)
1. Alaska Statute 45.50.592(e) relates to post-production disclosure.
Alaska Statute 45.50.592(e) -- like its federal counterpart, former 15 U.S.C. ยง 1313(c) -- addresses only post-production disclosure of materials produced under a subsection .592(a) CID. Thus, subsection (e)'s literal language operates to restrict production of materials already produced, stating that "material produced pursuant to a demand . . . may not be produced . . . disclosed" except in accordance with the subsection's provisions. The federal cases discussed by the dissent bear this out. They all address issues of "production" after the original production.
Thus, subsection (e) addresses cases in which a second generation of production or disclosure would be necessary; it does not purport to address who may be authorized by the attorney general to inspect the originally produced materials without triggering a second round of disclosure or production. That issue is partly covered in subsections .592(a) and (b). Subsection (a) gives the attorney general authority to issue CIDs. And subsection (b) gives the attorney general unqualified power to name any "state employees or representatives" to receive produced materials "for inspection and copying."
Here, the attorney general issued the CID for production directly to the attorney general's office. These actions are expressly allowed under subsections .592(a) and (b). Since the attorney general authorized Hosie to represent the State in investigating Tesoro, and thus could have named him as the specific "representative" to whom the materials were to be produced for inspection, it is impossible to conclude that giving Hosie access to those materials upon their production to the attorney general would amount to an additional round of "production" or "disclosure" within the contemplation of subsection .592(e). As part of the team that the attorney general has assembled to conduct the Tesoro investigation's regular work, then, Hosie and his firm fall within the circle of those having direct authority to inspect the materials produced under the CID, without any further production or disclosure occurring.
2. Contractual definitions
Moreover, even if it addressed the permissible scope of disclosure for the original production of documents under a CID, subsection .592(e) would not preclude disclosure to Hosie in the present case. Tesoro points to the language of the contract between Hosie and the attorney general in support of its argument that Hosie was not an employee of the state to whom documents could be disclosed. The contract specifies: "The contractor and any agents and employees of the contractor act in an independent capacity and are not officers or employees or agents of the State in the performance of this contract." Tesoro reasons that because Hosie is an independent contractor under the contract, he cannot be an "authorized employee of the state" as described in AS 45.50.592.
We are unpersuaded by Tesoro's argument that the retainer contract should, as a matter of law, control the construction of the statute. In this matter of statutory inter
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