Indianapolis Convention & Visitors Ass'n, Inc. v. Indianapolis Newspapers, Inc.

• Decision Date: 26 August 1991
• Docket Number: No. 30S04-9108-CV-649,30S04-9108-CV-649
• Citation: 577 N.E.2d 208
• Parties: 19 Media L. Rep. 1488 INDIANAPOLIS CONVENTION & VISITORS ASSOCIATION, INC., Appellant (Plaintiff/Counter-Defendant below), v. INDIANAPOLIS NEWSPAPERS, INC., Appellee (Defendant/Counter-Claimant below).
• Court: Indiana Supreme Court

Page 208

577 N.E.2d 208

19 Media L. Rep. 1488

INDIANAPOLIS CONVENTION & VISITORS ASSOCIATION, INC. Appellant (Plaintiff/Counter-Defendant below), v. INDIANAPOLIS NEWSPAPERS, INC., Appellee (Defendant/Counter-Claimant below).

No. 30S04-9108-CV-649.

Supreme Court of Indiana.

Aug. 26, 1991.

Peter G. Tamulonis, John B. Drummy, Kightlinger & Gray, Indianapolis, for appellant.

Robert P. Johnstone, Jan M. Carroll, Barnes & Thornburg, Indianapolis, for appellee.

Linley E. Pearson, Atty. Gen., David F. Hamilton, Counsel to the Governor, Indianapolis, for amicus curiae Ind. State Bd. of Ind.

KRAHULIK, Justice.

This case presents the question of whether the Indianapolis Convention & Visitors Association, Inc. ("ICVA"), a private not-for-profit corporation that receives revenue from both public and private sources, is subject to the Indiana Access to Public Records Act ("Public Records Act"), IND.CODE ANN. Sec. 5-14-3-1 et seq. (West 1989 & Supp.1990).

ICVA (plaintiff-appellant below) seeks transfer after the Court of Appeals affirmed the trial court's judgment that ICVA was subject to the Public Records Act and, therefore, was required to produce 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 opinion denying rehearing that makes the records sought by INI available only from 1989 forward. Because we conclude that ICVA is subject to the Public Records Act and that the records requested by INI are subject to disclosure from 1984 forward, we now grant tranfser, vacate the opinion of the Court of Appeals, and affirm the trial court.

The facts are as follows. ICVA has been a not-for-profit corporation since 1932. Currently, it has approximately 600 members, consisting of organizations, corporations, and associations engaged in the hotel, restaurant, travel or retail sales business in the Indianapolis area. Decisions concerning the operation of ICVA are made by its directors, officers and employees, without the control of any governmental entity. ICVA has three primary sources of revenue: advertising income, membership dues, and monies from the Capital Improvement Board of Managers of Marion County ("CIB").

The CIB is a municipal governmental entity created pursuant to statute. IND.CODE ANN. Sec. 36-10-9-1 et seq. (West 1983 & Supp.1990). The CIB receives the proceeds of the Marion County Hotel-Motel tax. The CIB is authorized to use these public dollars to fund governmental, public and private agencies and groups active in promoting and publicizing the convention and In June 1989, INI requested, pursuant to the Public Records Act, that ICVA produce copies of internal expense vouchers for the years 1978 to 1989. ICVA declined, and filed a complaint against INI seeking a declaratory judgment that ICVA is not subject to the Public Records Act. ¹ The action was tried to the bench. The trial court entered findings of fact and conclusions of law, holding that ICVA was subject to the provisions of the Public Records Act, and was obligated to produce the records requested by INI. ² ICVA appealed on the grounds that it was not a public agency as statutorily defined and, therefore, not subject to the Public Records Act because it was neither subject to audit by the State Board of Accounts nor exercising a delegated governmental power. The Court of Appeals affirmed the judgment with respect to the trial court's conclusion that ICVA met the definition of a public agency because it was subject to audit by the State Board of Accounts in that ICVA was "maintained and supported" with public monies. The court concluded that ICVA was not exercising a delegated governmental power. The court also decided that ICVA was obligated to produce records from 1989, but not from 1978 to 1989 as originally requested by INI because it was not until 1989 that the State Board of Accounts first notified ICVA that it was subject to be audited.

visitor industry in Indianapolis. IND.CODE ANN. Sec. 36-10-9-6(14) (West 1983). The CIB provides funds to ICVA pursuant to this authority.

In its petition to transfer, INI argues that the Court of Appeals erred in limiting the period of time for which records are available under the Public Records Act, and asserts that it is entitled to all records originally requested. Additional facts shall be added as necessary.

STANDARD OF REVIEW

This action was tried to the bench, and the trial court made its findings of fact and conclusions of law pursuant to Ind.Trial Rule 52(A). ICVA contends that the Court of Appeals incorrectly applied the "clearly erroneous" standard of review in evaluating the trial court's findings and conclusions because the operative provisions of the 1985 contract between ICVA and CIB are unambiguous. ICVA claims that only if the terms of a contract at issue are ambiguous must an appellate court give deference to the trial court's findings and conclusions, because the appellate tribunal is in as good a position as the trial court to interpret documentary evidence. Although we accept ICVA's argument as a correct statement of law, it has no application here because ICVA submitted evidence in addition to the contract itself. Thus, the evidence submitted by the parties and evaluated by the trial court was not limited to documents. Here, the trial court judged the credibility of witnesses and determined the relative weight to be accorded all the evidence presented.

Where the trial court has heard the evidence and has had the opportunity to judge the credibility of witnesses, we will not set aside the findings of the trial court unless they are clearly erroneous. T.R. 52(A). In determining whether findings of fact are clearly erroneous, we do not reweigh the evidence or determine the credibility of witnesses, but consider only evidence that supports the judgment and reasonable inferences to be drawn from the evidence. Best v. Best (1984), Ind.App., 470 N.E.2d 84, 86. Only where the record contains no facts or inferences supporting

the findings are such findings clearly erroneous. Uncontradicted evidence will sometimes support conflicting inferences and, when this is the case, the inferences drawn by the trier of fact will prevail. A.S.C. Corp. v. First Nat'l. Bank (1960), 241 Ind. 19, 25, 167 N.E.2d 460, 463-64.

BURDEN OF PROOF

INI has the burden of proving that ICVA is a "public agency" within the meaning of the Public Records Act. Steinkuehler v. Wempner (1907), 169 Ind. 154, 160, 81 N.E. 482, 484 (party seeking benefit of statute must bring himself within its provisions). However, if ICVA is determined to be a "public agency," then it bears the burden of establishing that a requested record is included within one of the categories of records which need not be produced under the Act. IND.CODE ANN. Sec. 5-14-3-1 (West 1989).

DISCUSSION

Public Records Act.

The Public Records Act provides that, subject to certain exceptions not relevant here, any person may inspect and copy the records of any "public agency." IND.CODE ANN. Sec. 5-14-3-3 (West 1989). For our purposes, "public agency" is defined as any entity or office subject to an audit by the State Board of Accounts. IND.CODE ANN. Sec. 5-14-3-2 (West 1989).

The State Board of Accounts is empowered to "examine all accounts and all financial affairs of every public ... entity." IND.CODE ANN. Sec. 5-11-1-9 (West 1989). A "public entity" is defined as any provider of goods, services, or other benefits that is:

(1) maintained in whole or in part at public expense; or

(2) supported in whole or part by appropriations or public funds or by taxation.

IND.CODE ANN. Sec. 5-11-1-16(e) (West 1989). Accordingly, if ICVA were maintained or supported by public monies, as was determined by the trial court and the appellate court, then its records are subject to disclosure.

Maintain and Support.

ICVA challenges the conclusion that it is maintained and supported in part at public expense, claiming that the trial court and the Court of Appeals improperly focused on the status of the payor (the CIB) as a governmental entity, and the amount of the payments from the CIB to ICVA, rather than examining the wording of the contract between those parties and the circumstances under which the payments were made with reference to the contract. ICVA asserts that its relationship with the CIB is strictly a "fee-for-service" arrangement. INI counters that the evidence supports the trial court's conclusion that ICVA was maintained and supported at public expense because the monies received from the CIB by ICVA were in the nature of a grant.

The words "maintained" and "supported" used in IND.CODE Sec. 5-11-1-16(e) are not defined in the statute. Thus, we turn to the rules of statutory construction to determine the meaning of these words. The guiding principles of statutory construction are well known: we are to construe a statute with the act's purpose and scope in mind, Ind. Dept. of Rev. v. Indpls. Public Trans. Corp. (1990), Ind., 550 N.E.2d 1277, 1278; statutes are to be examined and interpreted as a whole, giving words their common and ordinary meaning and not overemphasizing a strict, literal or selective reading of individual words, Spaulding v. Int'l. Bakers Services, Inc. (1990), Ind., 550 N.E.2d 307, 309.

ICVA asserts that the commonly-understood meaning of "maintain" and "support" is "to subsidize" or "to keep in existence," which definition does not include a situation where there is a bargained-for exchange like the fee-for-services arrangement that ICVA contends existed between ICVA and the CIB. We agree with ICVA that a private entity is not maintained or supported by public monies within the meaning of IND.CODE Sec. 5-11-1-9 merely because public monies make up a certain percentage of its revenue. If the...