NOT TO BE PUBLISHED
July 28, 1993
IN RE: Paul E. McAuliffe/Henderson Municipal Power & Light
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of Henderson Municipal Power & Light, hereinafter referred to as HMP&L, in responding to Evansville Courier reporter Maureen Hayden's June 1, 1993, request to inspect certain records in its custody. HMP&L released the documents identified in Ms. Hayden's request with one exception, the SO2 allowance purchase agreement between Centre Financial Products, Ltd., Henderson Municipal Power & Light, and Big Rivers Electric Corp. On behalf of HMP&L, Mr. Kendel D. Bryan, General Manager, denied that portion of her request, explaining:
HMP&L will not furnish for inspection the allowance purchase agreement among Centre Financial Products Ltd., HMP&L, the City of Henderson and Big Rivers Electric Corporation on the grounds that this document contains confidential and proprietary information exempt from inspection by KRS 61.878(c) [sic]. This contract will not be closed until fall, 1993, to allow recording of the transaction on the books of the United States Environmental Protection Agency. The current market in SO2 emission allowances is highly volatile. The disclosure of the composition and structure of the allowance purchase agreement prior to closing would greatly prejudice Centre Financial Products
Ltd. and would confer an unfair advantage upon its competitors. The parties to the transaction have covenanted not to disclose the term and provisions of the allowance purchase agreement except to the extent required by applicable law or judicial or administrative process.
As a "compromise of this matter," Mr. Bryan agreed to release a summary of the basic terms and conditions of the allowance purchase agreement. On June 16, Mr. Paul E. McAuliffe, Executive Editor of The Evansville Courier, submitted this open records appeal on Ms. Hayden's behalf.
In 93-ORD- , we addressed the identical issue raised in this appeal, to wit: Whether HMP&L properly denied a request to inspect the allowance purchase agreement between itself and Centre Financial Products, Ltd., and Big Rivers Electric Corp. In that decision, a copy of which is attached, we concluded that HMP&L improperly denied the request, and ordered the Utility to release the record. 93-ORD- is dispositive of the present appeal, and we hereby incorporate by reference the reasoning of that decision. Mr. Bryan and HMP&L are directed to release the allowance purchase agreement to Mr. McAuliffe and Ms. Hayden forthwith.
Henderson Municipal Power and Light may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Kendel D. Bryan
Henderson Municipal Power & Light
100 Fifth Street, P. O. Box 8
Henderson, KY 42420
Mr. Paul E. McAuliffe
Evansville Courier Company
300 E. Walnut, P. O. Box 268
Evansville, IN 47702-0268