E. Business records, financial data, trade secrets.

The records and financial data of private businesses are, like other documents and information maintained by private entities, not covered by the Public Records Act, with rare exceptions. However, when documents and information are submitted by private entities and individuals to government agencies, or for use in official proceedings, they are presumptively public to the extent they form part of the records of that agency. In a number of instances, the law provides for confidentiality of such documents and information submitted by private entities, particularly where such filings are required by law for purposes of regulatory oversight. Similarly, court rules provide for information and documents submitted for use in litigation to be exchanged confidentially, and at times used in court proceedings subject to protective orders to permit their use under seal, where the court finds disclosure under the circumstances would be unnecessarily burdensome, disclose trade secrets, or otherwise meet the criteria specified by law. See e.g., Alaska Civil Rule of Procedure 26(c)(7); Federal Civil Rule of Procedure 26.(c)(7).

Virtually all information maintained by the Department of Revenue concerning charitable gaming operations is open to the public, given the public's strong interest in this subject, and the need to keep watch over an industry historically the target of criminal elements. March 4, 1966 Op. Att'y Gen. No. 663-95-0496. The records of certain businesses are generally public because of the quasi- public or other unique status of the companies. For example, the books and records of electric and telephone utility cooperatives are generally open to members, but may be withheld when they concern specific matters that were prepared for or during an executive session and not subsequently made public by the cooperative. AS 10.25.235. Also, the definition of "public records" under Alaska law includes books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, that are developed or received by a private contractor for a public agency.

There are a number of specific statutory provisions authorizing confidentiality of data and documents submitted by businesses to regulators or other government agencies. Some of the more significant of these include information supplied to the Commissioner of Commerce, Community, and Economic Development by companies suspected of violating corporation laws, AS 10.06.818-.820 (for-profit corporations); and AS 10.20.655-.660 (non-profit corporations); information acquired by the Department of Community and Economic Development in the course of regulating Bidcos, AS 10.13.930 (and see generally AS 37.17.200-.390) (except where the Department determines that disclosure of non-examination information is "necessary to promote the public interest," AS 10.13.930(a); various documents and information acquired by the state insurance director in connection with the examinations of insurance companies and agents, managers and promoters, AS 21.06.150(g); insurance holding companies, AS 21.22.020; various records of insurance contracts, commissions, investigations and adjustments, and other records required to be kept concerning licensees of the Division of Insurance, AS 21.27.350(e); reports concerning surplus lines insurance, AS 21.34.080; or concerning insurance fraud, AS 21.36.400; information submitted for examination by ratings organizations, AS 21.39.060(f); and examination reports and certain related information provided to the Alaska Insurance Guarantee Association, AS 21.80.110. A variety of documents and information concerning mining operations, as well as loans for mining operations, are confidential pursuant to AS 27.05.090, 27.09.030, 27.20.041, and 27.21.100. The availability or confidentiality of various information required to be filed concerning oil and gas wells, and related production and safety issues, is addressed in AS 31.05.035. Procurement information in connection with public contracting is generally public, AS 36.30.530, except as provided by law, such as allowances for confidentiality of technical data, proprietary data and trade secrets submitted by actual or prospective bidders or offerors, AS 36.30.040(b)(6), AS 36.30.140, and AS 36.30.230. Information in the possession of the Alaska Permanent Fund Corporation is public except that information which discloses the particulars of the business or affairs of a private enterprise or investor. AS 37.13.200. Confidentiality is provided for information obtained by the Department of Revenue in the course of performing audits relating to royalty and net profits under oil and gas contracts, agreements or leases, AS 38.05.036, and certain other information relating to exploration for development of oil and gas and other public resources, AS 38.05.180(x), AS 38.05.035(a)(9), AS 38.06.060. While information in the possession of the Alaska Railroad Corporation is presumptively public and open to inspection and copying at reasonable times, AS 42.40.220, matters of a privileged or proprietary nature may be withheld from public disclosure, including proprietary information associated with specific shippers, divisions and contract rate agreements. Certain documents and information submitted by regulated utilities through the Alaska Public Utilities Commission or the Alaska Pipeline Commission, in connection with tariff filings or otherwise, may be privileged or confidential under certain circumstances, although the public generally has a presumptive right of access to records in the possession of these regulatory agencies. AS 42.05.671, AS 42.06.445. Tax returns and reports of businesses required to pay state taxes are generally confidential, but may be disclosed in connection with delinquencies. AS 43.05.230. Information submitted by tourism-related businesses to the State Department of Commerce, Community, and Economic Development that discloses the particulars of an individual business is confidential. AS 44.33.020(a)(36). Records of the Commercial Fishing and Agricultural Bank that are identified with, or identifiable as being derived from the records from a specific borrower, member of the Bank, or applicant for a loan are confidential and may not be disclosed except under certain circumstances specified in the statute, as are other specified CFAB bank records. AS 44.81.260. Information in the possession of the Department of Revenue that discloses the particulars of the business or affairs of a taxpayer is not a public record. AS 40.25.100. Information relating to secret processes or methods of manufacture discovered during investigations of actual or suspected pollution or contamination conducted by the State Department of Environmental Conservation are confidential. AS 46.03.020(6). Also, records of the DEC concerning air quality control, hazardous wastes, air pollution control and underground storage tanks, to the extent that they reveal trade secrets, production figures, sales figures, processes, production techniques and financial data that are entitled to protection under the Alaska Uniform Trade Secrets Act, or financial records submitted for purposes of regulation, are generally confidential. Alaska's Trade Secrets Act requires courts in actions brought under that statute to preserve the secrecy of alleged trade secrets by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval. AS 45.50.920.

Certain information submitted in connection with an application to the Department of Commerce, Division of Community and Business Development, for a loan from the Bulk Fuel Bridge Loan Revolving Fund is not confidential, and is available for public inspection upon request, including (1) a document that is already a public record, including deeds of trust, financing statements, warranty deeds, bills of sale, mortgages, liens, and vehicle titles; (2) general information regarding loans, including the original loan amount, loan terms, personal guarantees, and disbursement and repayment schedules;  (3) insurance matters, including title insurance policies and correspondence with insurance companies or borrowers regarding losses, accident reports, and nonpayment of premiums; and (4) foreclosure and default proceedings. 3 AAC 161.090(a).  Other information submitted is confidential and not subject to public disclosure: (1) personal and financial information, including income tax returns, financial statements, business income statements, pro forma profit and loss statements, credit information obtained directly from banks and other creditors, and reports obtained from consumer reporting agencies; (2) loan review staff notes containing information relating to creditworthiness of an applicant; (3) the payment history on a loan, unless the loan is in default. 3 AAC 161.090(b). Information not described in (a) or (b) may be subject to public disclosure. A request for disclosure must be made, and disclosure will be determined in accordance with 2 AAC 96. Upon receipt of a request for disclosure, the department will notify the loan applicant and other persons with a privacy interest in the request, to permit them to present reasons why the requested information should not be disclosed. 3 AAC 161.090(c).

The same is true with respect to information submitted to the Department of Commerce, Division of Investments for a Capstone Avionics Loan. 3 AAC 75.075(a), (b), (c).

A renewable energy grant application and other materials submitted to the Alaska Energy Authority under AS 42.45.045 and 3 AAC 107.600—3 AAC 107.695 are subject to disclosure under AS 40.25.100 -- 40.25.295, the Alaska Public Records Act, and 2 AAC 96, unless the Authority determines that the material is protected from disclosure under AS 40.25.120. 3 AAC 107.630(a). A person submitting a grant application may request that the Authority keep certain information confidential. The request must (1) clearly designate the specific information to be kept confidential; and (2) specifically describe the basis for asserting that the information is protected from disclosure under AS 40.25.120; if the person believes the information is protected as a trade secret or business proprietary information, the description must include analysis of whether the person's commercial privacy interest in protecting the information from disclosure outweighs the public interest in obtaining the information. 3 AAC 107.630(b). If the Authority receives a public records request and determines the information requested is protected from disclosure under AS 40.25.120, the authority will not release the information except to Energy Authority personnel and contractors for purposes of evaluating the person's application. If the Authority determines the information may not be protected from disclosure under AS 40.25.120, the Authority will notify the person submitting the information, who is responsible at the person's own expense for seeking judicial relief or taking other action necessary to protect the material from disclosure under AS 40.25.100 -- 40.25.295.