Indianapolis Convention & Visitors Ass'n, Inc. v. Indianapolis Newspapers, Inc.
| Decision Date | 11 September 1990 |
| Docket Number | No. 30A04-8910-CV-441,30A04-8910-CV-441 |
| Citation | 559 N.E.2d 356 |
| Parties | 18 Media L. Rep. 1101 INDIANAPOLIS CONVENTION & VISITORS ASSOCIATION, INC., Appellant (Plaintiff, Counter-Defendant Below), v. INDIANAPOLIS NEWSPAPERS, INC. Appellee (Defendant, Counter-Claimant Below). |
| Court | Indiana Appellate Court |
Peter G. Tamulonis, John B. Drummy, Kightlinger & Gray, Indianapolis, for appellant.
Robert P. Johnstone, Jan M. Carroll, Barnes & Thornburg, Indianapolis, for appellee.
Appellant, Indianapolis Convention & Visitors Association, Inc. (ICVA), appeals the trial court's determination that it is a governmental entity subject to the Indiana Access to Public Records Act. We affirm.
Whether the trial court's determination that the ICVA meets the statutory definition of "public agency" in the Indiana Access to Public Records Act is clearly erroneous.
ICVA is a private, not-for-profit organization which has been in existence since 1923 and was incorporated in 1932. The membership of ICVA consists of individuals, associations and corporations who are interested in promoting and advertising the City of Indianapolis as a major site for conventions, cultural and sports events, trade shows, a destination for tourism, and a meeting place for all types of gatherings. ICVA has approximately six hundred (600) member companies.
ICVA has three (3) primary sources of revenue: advertising revenue, membership dues, and payments under written contract with the Capital Improvement Board of Managers of Marion County, Indiana (CIB). The CIB funds ICVA pursuant to Ind.Code 36-10-9-6(14). 1 The revenue ICVA receives from the CIB represents approximately sixty to seventy percent (60-70%) of ICVA's total revenue.
ICVA first contracted with the CIB in 1967, executed another agreement in 1978, and, pursuant to a request by the Indiana State Board of Accounts that "the CIB and the ICVA enter into a formal contract and that the ICVA provide the CIB with written progress reports," executed a new agreement in early 1985. 2
Via letters dated June 1 and 12, 1989, Indianapolis Newspapers, Inc. (INI), demanded that ICVA produce copies of internal expense vouchers for ICVA officials, including chairman and president, for the years 1978-1989. On June 21, 1989, INI threatened to sue ICVA if it did not immediately produce the records. On June 22, 1989, ICVA filed a Complaint against INI for a declaratory judgment that ICVA is not a public agency subject to the Indiana Access to Public Records Act, or, alternatively, that the records sought by INI were trade secrets as defined by the Uniform Trade Secrets Act. 3
INI subsequently filed a Counterclaim for an injunction to prevent alleged violations of the Indiana Access to Public Records Act by ICVA. The trial court bifurcated the issue of whether ICVA was a public agency subject to the Act from the issue of whether the documents sought by INI were trade secrets.
A trial was held on the issue of whether ICVA was a public agency on September 21, 1989. On October 3, 1989, the trial court found ICVA subject to the Act and ordered ICVA to produce, subject to a protective order, its expense records and vouchers for ICVA officials for 1978-1989. The trial court's findings of fact and conclusions of law are as follows:
FINDINGS OF FACT
1. INI is an Indiana Corporation with its principal place of business in Indianapolis, Indiana. INI is engaged in the gathering and dissemination of news and publishes The Indianapolis News ("The News").
2. The News is a newspaper of general circulation serving readers and the public in the City of Indianapolis and Marion County, Indiana.
3. The ICVA is a not-for-profit corporation organized under the laws of the State of Indiana.
4. As part of its newsgathering and reporting, The News reports on the activities of the ICVA.
5. The Capital Improvement Board of Managers of Marion County (the "CIB") is a public agency created pursuant to IND.CODE 36-10-9-1 et seq. (Supp.1989).
6. The tax receipts and other moneys paid to the CIB are public funds, and the treasurer of the CIB must account for them as public funds, pursuant to the command of the CIB statute. IND.CODE 36-10-9-9.
7. Pursuant to the 1985 Contract between the ICVA and the CIB and the practices followed for years by the parties to the Contract, the CIB annually allocates to the ICVA a portion of the proceeds of the Marion County motel-hotel tax and also provides offices, meeting space, furniture and equipment at no charge to ICVA. The CIB funds the ICVA pursuant to the powers and duties set forth in IND.CODE 36-10-9-6(14) which authorizes the CIB to fund governmental, public, and private agencies and groups for the purpose of promoting and publicizing the convention and visitor industry.
8. The ICVA's allocation of a portion of the hotel-motel tax receipts is paid to the ICVA out of the CIB's general fund. The moneys in the CIB's general fund are public funds, and are audited as such by the State Board of Accounts.
9. Under the Contract between the CIB and the ICVA and the practices which have been followed for many years, the annual allocation of financial support for ICVA is tied to the CIB's receipt of revenues from the hotel-motel tax. Annually, the funding from the CIB represents approximately 20% of the receipts from the hotel-motel tax. The CIB's funding of the ICVA is not dependent on the ICVA booking a specific number of conventions, filling a set number of hotel room-nights or convention days or any other objective measure of the ICVA's performance.
10. The ICVA does not submit itemized claims or invoices to the CIB in order to receive the public funds from the CIB. The CIB, in turn, has not required the submission of itemized claims or invoices from the ICVA before making payments to the ICVA, despite the requirement for 11. The amount of the payments by the CIB to the ICVA under the Contract was not negotiated by the parties.
such under IND.CODE 36-10-9-9(d).
12. The CIB makes its payments to the ICVA in monthly installments. The first eleven monthly installments are figured as 1/12 of the allocated portion of the projected receipts from the hotel-motel tax. The twelfth installment is adjusted upward or downward to reflect actual hotel-motel tax receipts in a given year.
13. The ICVA receives its monthly installments of public funds from the CIB regardless whether any conventions booked by the ICVA have occurred during that month. The ICVA also receives public funds allocated as a portion of the hotel-motel tax receipts which are attributable to events, such as the Indianapolis 500-Mile Race, that it had no role in bringing to Indianapolis.
14. The public funds received by the ICVA from the CIB are not fees for promotional and booking services. That term appears nowhere in the ICVA's Contract with the CIB, nor in any other document establishing the relationship between the ICVA and the CIB.
15. The ICVA has consistently described the public funds it receives from the CIB as "indirect public support." Its federal and state tax returns for the tax years 1982 through 1987 describe the CIB funding as such. Only after a question was raised about the public funding received from the CIB did the ICVA file an amended 1987 return in June 1989 characterizing the funding as "convention and tourism promotion."
16. The funds received from the CIB annually exceed 25% of the total revenues of the ICVA. In fact, money from the CIB in the last four years has funded from 60% to 79% of the ICVA's total expenditures ... By virtue of the receipt of the CIB funds to support and maintain the ICVA, the ICVA is an entity subject to audit by the Indiana State Board of Accounts pursuant to IND.CODE 5-11-1-16(e) and -25 (1987).
17. The State Board of Accounts informed the ICVA on June 23, 1989, that it was subject to audit and that the ICVA should file an Entity Annual Report. The ICVA has never filed an Entity Annual Report.
18. On June 1, 1989, Dunstan A. McNichol, a reporter for The News, submitted a written request to the ICVA for access to the ICVA's expense vouchers under the Indiana Access to Public Records Act. The request for access was denied.
1. The CIB's funding of the ICVA by allocating a portion of the receipts of the Marion County hotel-motel tax constitutes support and maintenance of ICVA with public funds. The payments to the ICVA are indirect public support, and are not fees for promotional and booking services. The ICVA is therefore subject to audit by the State Board of Accounts.
2. Because the ICVA is subject to audit by the State Board of Accounts, the ICVA meets that definition of "public agency" under the Access to Public Records Act, IND. CODE 5-14-3-2 (1987 and Supp.1989).
3. By carrying out the convention and tourism promotion activities of the CIB, the ICVA is exercising a delegated local government power. In so doing, the ICVA meets another definition of "public agency" under the Indiana Access to Public Records Act, IND.CODE 5-14-3-2 (1987 and Supp.1989).
4. To the extent any of the foregoing conclusions of law are findings of fact, they are specifically incorporated as findings of fact.
/s/
On October 4, 1989, ICVA filed a Motion to Stay Further Proceedings and/or to Permit Immediate Appeal. The trial court denied the motion on the same day. ICVA requested this Court to stay the proceedings and suspend the injunction so it could proceed with an interlocutory appeal, but this Court denied ICVA's request on October 12, 1989.
Additional facts will be added as needed.
The trial court entered special findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A)(1). On appeal, a trial court's judgment entered pursuant to T.R. 52 will be reversed when the findings of fact, conclusions of law, or judgment are clearly erroneous. Ind. Appellate Rule 15(N); Rose Acre...
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Indianapolis Convention & Visitors Ass'n, Inc. v. Indianapolis Newspapers, Inc.
...certain records requested by Indianapolis Newspapers, Inc. ("INI"), (defendant-appellee below). Indiana Convention & Visitors Assoc. v. Indpls. Newspapers, Inc. (1990), Ind.App., 559 N.E.2d 356, reh'g. den. at 361. INI also seeks transfer relating to that portion of the appellate court's op......