RODNEY S. PEDERSON, Appellant,
ARCTIC SLOPE REGIONAL CORPORATION, and MARY ELLEN AHMAOGAK, in her capacity as Corporate Secretary, Appellees.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sen K. Tan, Judge.No. 3AN-09-10971 CI
Rodney S. Pederson, pro se, Anchorage, Appellant. Susan Orlansky and Jeffrey M. Feldman,
Feldman Orlansky & Sanders, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
FABE, Chief Justice.
A shareholder of Arctic Slope Regional Corporation sought to exercise his statutory right to inspect books and records of account and minutes of board and committee meetings relating to executive compensation and an alleged transfer of equity in corporate subsidiaries to executives. The Corporation claimed that the materials were confidential and sought to negotiate a confidentiality agreement prior to release of any documents. When the shareholder ultimately rejected the proffered confidentiality agreement, the Corporation released to the shareholder only the annual reports and proxy statements of the Corporation and the minutes describing the subjects discussed and actions taken at the meetings. The shareholder did not receive the detailed, individualized compensation information he sought.
The shareholder brought suit, claiming that the Corporation withheld information that it was required to release under AS 10.06.430 and that the Corporation improperly insisted on a confidentiality agreement prior to releasing any of the requested documents. The superior court ruled that electronically maintained accounting records are not within the statutory category of "books and records of account"; that the Corporation satisfied the requirement to disclose "books and records of account" when it disclosed only annual reports and proxy statements; and that the Corporation satisfied the requirement to disclose meeting minutes. It further concluded that the Corporation could demand a confidentiality agreement prior to release of any information, and that the terms of the particular confidentiality agreement offered in this case were reasonable. The shareholder appeals, arguing that the statutory right of inspection encompasses more than what the Corporation provided and that the Corporation had no right to demand the confidentiality agreement in this case.
This appeal presents several issues of first impression in Alaska. We hold that (1) the statutory phrase "books and records of account" includes electronically maintained books and records of account; (2) the statutory phrase also goes beyond mere annual reports and proxy statements; and (3) the statutory phrase at least encompasses monthly financial statements, records of receipts, disbursements and payments, accounting ledgers, and other financial accounting documents, including records of individual executive compensation and transfers of corporate assets or interests to executives. We further hold that (4) the statutory category "minutes" does not encompass all presentations or reports made to the board but rather merely requires a record of the items addressed and actions taken at the meeting, as have been faithfully recorded after the meeting. Finally, we hold that (5) a corporation may request a confidentiality agreement as a prerequisite to distributing otherwise-inspectable documents provided that the agreement reasonably defines the scope of confidential information subject to the agreement and contains confidentiality provisions that are not unreasonably restrictive in light of the shareholder's proper purpose and the corporation's legitimate confidentiality concerns. We conclude that the Corporation's proffered confidentiality agreement in this case was not sufficiently tailored or limited in scope and thus Pederson's refusal to sign it could not serve as a legal basis for avoiding liability for denying his inspection claims.
II. FACTS AND PROCEEDINGS
A. The Parties
Arctic Slope Regional Corporation is an Alaska Native Regional Corporation organized under the Alaska Native Claims Settlement Act and AS 10.06.960 and incorporated under the Alaska Corporations Code, AS 10.06. At the time of trial, the Corporation took in about $2.5 billion in revenue each year, employed about 10, 000 people, and had operations across the country and around the world. The Corporation had about 11, 000 shareholders in 2012,  about 6, 000 of whom were adults holding voting shares.
Rodney Pederson is an original shareholder of the Corporation, holding 100 Class A shares. An attorney and a member of the Alaska bar, Pederson worked as assistant corporate counsel to the Corporation and later as an executive for one of the Corporation's subsidiaries. The employment relationship soured. Since then Pederson has unsuccessfully sought election to the Corporation's board and at the time of trial in this case had filed three lawsuits against the Corporation, as well as a counterclaim in a suit brought by the Corporation against Pederson.
B. Pederson's Request For Detailed, Individual Compensation Information For Executives And Board Members Contained Within "Books And Records Of Account" And "Minutes" Under AS 10.06.430's Shareholder Inspection Right
On June 17, 2009, Pederson sent three letters to the Corporation seeking to exercise his shareholder inspection right under AS 10.06.430(b). He sought "to inspect and copy the books, records of account and minutes of proceedings of the [Corporation's] Board of Directors and Committees of the [Corporation's] Board of Directors" that were "in any way related to, discussing, considering, making recommendations in regard to, funding, and approv[ing]" four different actions related to compensation of and transfer of Corporate interests to executives, board members, and Corporate officers.
Pederson's demand letters stated that the purpose of his request for inspection was "[t]o obtain true and accurate information and records regarding" the four Corporate actions listed above. The letters went on to clarify that the information he obtained would be used only to persuade his fellow shareholders to adopt two specific changes to the Corporation's governing documents.
C. The Corporation Demands A Confidentiality Agreement Prior To Release Of Any Documents; Pederson Negotiates But Then Rejects Any Confidentiality Agreement.
Mary Ellen Ahmaogak, the Corporation's Corporate Secretary, replied to Pederson's initial demand letters on July 28, 2009, proposing to give Pederson the records he had requested "to the extent they consist of copies of the relevant portions of the minutes of [the Corporation's] board and committee meetings and copies of the relevant portions of [the Corporation's] regularly maintained accounting records." The Corporation notified Pederson of its view that "[t]he bulk of the records responsive to your request consist of annual reports and proxy statements for [the Corporation] and reports made to [the Corporation's] Compensation Committee by the Hay Group, " an independent executive-compensation consultancy. The Corporation also asserted that "[t]he books and records you have requested contain trade secrets and confidential information" and insisted that prior to its release of the records, Pederson must "sign a confidentiality agreement regarding these books and records to ensure they will not be disclosed other than to people entitled to see them."
The Corporation's first proffered confidentiality agreement stated that "[a]ll" of the information to be released was "Confidential Information" subject to the terms of the agreement despite being inspectable "pursuant to AS 10.06.430." The agreement would permit disclosure "to other shareholders" and their agents but would make Pederson liable to the Corporation for unauthorized disclosure by those third parties.
Pederson responded on August 6, 2009, suggesting specific additions and subtractions to the Corporation's first proffered confidentiality agreement. But Pederson soon changed his mind and rejected the notion that he had to sign a confidentiality agreement as a prerequisite to obtaining the materials he had requested pursuant to AS 10.06.430. He stated in a letter dated August 12, 2009, that nothing in the statute would require him to sign such an agreement, and he pledged in lieu of an agreement "to do [his] best to ensure that any information [he] prepare[d] for [his] fellow Shareholders based on any actual confidential information contained in the records [he] ha[d] requested [would] not [be] available to the public." He proposed to "prepar[e] the information in a manner that minimizes the disclosure of actual confidential information, while still allowing [Pederson] to provide enough information to Shareholders to make persuasive arguments for updating [the Corporation's] corporate governance documents."
After receiving Pederson 's suggested edits to the confidentiality agreement, the Corporation sent him a responsive letter dated August 21, 2009, agreeing "to almost all of the modifications [Pederson] proposed." But the Corporation made one significant addition to the newest draft of the agreement: After accepting Pederson's request to omit language subjecting him to personal liability for disclosures of confidential information by third parties with whom he would be permitted to share confidential information, the Corporation inserted a new requirement that Pederson "obtain . . . a confidentiality agreement . . . that subjects [the person to whom Pederson seeks to disclose confidential information] to the same restrictions imposed on [Pederson] in this Agreement."
In a letter dated August 24, 2009, after receiving the Corporation's second proffered confidentiality agreement, Pederson rejected the new draft and reiterated his rejection of any confidentiality agreement. He stated his view that he was "already legally entitled" to the documents he requested, regardless of the existence of a confidentiality agreement. He further objected to the scope of the definition of "Confidential Information" in the draft agreement, to the potential liability to which it subjected him, and to the "extremely onerous requirement that [he] obtain signed agreements from every shareholder with whom [he] share[d] the information." He reiterated his offer to "take reasonable measures to limit access by the public to certain information that is actually confidential or a trade secret, but management must point out what that information is."
D. The Corporation Releases Some Information.
The Corporation's in-house and outside counsel attempted to determine the scope of the information that the Corporation had to release under AS 10.06.430. It appeared that the Corporation had never had any shareholder requests to inspect corporate books and records of account and minutes until Pederson's initial demand letters of June 17, 2009, and that the Corporation had no established procedure for responding to such requests. Similarly, no cases from this court defined the scope of "minutes" or "books and records of account." The Corporation eventually determined that "books and records of account" included only the Corporation's annual reports and proxy statements and that the Corporation possessed no other "books and records of account" within the meaning of the statute. It also concluded that "minutes, " as used in the statute, included the concise descriptions of what happens in board meetings that are prepared after the meetings but did not include presentations made to the board, handouts provided to the board, or other sensitive confidential or proprietary information that may have been omitted from the typed minutes for various reasons. The Corporation went on to identify other materials such as reports and presentations to the board that it concluded were not part of the minutes or books and records of account, and thus not covered by the statute, but were relevant for Pederson's stated purposes.
On August 27, 2009, three days after the date of Pederson's second letter rejecting any confidentiality agreement, the Corporation informed Pederson that it was delivering to him "all of the material that you requested that can be made available, in the absence of protections safeguarding confidentiality." Later, the Corporation explained that it redacted "specific salary and benefits information of individual employees." The Corporation's assistant corporate counsel testified at trial that he had reviewed all of the corporate minutes as well as the books and records of account, as he had defined these terms, compiled all information in those sources related to Pederson's stated interests, and transmitted all of those required documents — without redaction of relevant information — to Pederson's attorney. The assistant corporate counsel also testified that he identified a number of reports to the board that were relevant to Pederson's interest but not part of the "minutes" or "books and records of account" as he had defined those terms; he produced those reports for Pederson "[a]s an accommodation" after redacting information that the Corporation was not willing to share voluntarily without the sort of confidentiality agreement that Pederson had rejected.
E. Pre-Trial Proceedings
Pederson brought suit against the Corporation and Mary Ellen Ahmaogak, in her capacity as Corporate Secretary (collectively, "the Corporation"). He claimed that he had submitted a written demand stating with particularity a proper purpose for inspecting minutes and books and records of account, as required under AS 10.06.430(b), and that the Corporation had sought to impose unreasonable conditions on release of the information he sought and later improperly denied his request by releasing less than what was required under the statute. He sought a money judgment as permitted under AS 10.06.430(c), including punitive damages, and a court order as permitted under AS 10.06.430(d) ...