Today we learned that the Kentucky Supreme Court has refused the Cabinet for Economic Development's request for review of a Court of Appeals' opinion affirming the Courier Journal, and the public's, right to the names of investors in Braidy Industries.
http://opinions.kycourts.net/COA/2018-CA-001131.pdf
This news comes on the heels of news of the Supreme Court's refusal to review the Court of Appeals' opinion in Purdue Pharma L.P. v Boston Globe Life Sciences Media LLCd/b/a STAT.
https://www.facebook.com/419650175248377/posts/503668983513162?sfns=mo
In both cases, no further appeal is possible, and the legal issues are finally resolved in favor of public access.
Sadly, in both cases the Supreme Court "depublished" the Court of Appeals' opinions.
The Court of Appeals had designated both the Purdue Pharma and the Cabinet for Economic Development/Braidy cases "To Be Published." By "depublishing" them, the Supreme Court has restricted their value as legal precedent. As a result of the Supreme Court's decision to "depublish," neither case can be cited in a Kentucky court for the legal principles it establishes except under narrowly defined circumstances.
This is particularly unfortunate in the Purdue Pharma opinion. It contains a thoughtful and exhaustive 72 page analysis of the right of access to court records.
https://cases.justia.com/kentucky/court-of-appeals/2018-2016-ca-000710-…
We are spared the expense and delay of additional litigation in these cases — as well as the possibility of a Supreme Court reversal of the Court of Appeals' holdings — but saddened that the Supreme Court, for reasons unknown, "depublished" the opinions.
It is worth noting that as the Cabinet for Economic Development/Braidy Industries case proceeded through the courts, lawmakers attempted a legislative "fix" that, if successful, would have deprived the public of its right to investor names under similar circumstances.
Those circumstances consist of a heightened public interest in shareholder identities based on "an extraordinary investment of public funds. . . confer[ring] a direct benefit on the Braidy shareholders in the form of capital injection into Braidy," and creating a business relationship between the Commonwealth and Braidy.
If successful, HB 387, introduced in the 2019 Regular Session of the Kentucky General Assembly, would have created a new exception — one of many new exceptions — for "record's confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, *or a trade secret, including but not limited to financial information, **information regarding the identity or investment interest of shareholders** and present or future business plans.*"
https://apps.legislature.ky.gov/record/19rs/hb387.html
Look for lawmakers to resurrect this bill in 2020 in light of recent defeats in the courts on records access issues relating to "economic development." The perennial "legislative solution looking for a problem."
