On Appeal from the District Court for the Virgin Islands, D.C. No. 85-387.
Hutchinson, Cowen, and Garth, Circuit Judges.
The Daily News of the Virgin Islands ("Daily News") has appealed the district court's order dated January 25, 1988, which denied summary judgment to the Daily News, granted summary judgment to Petitioner/Appellee Gordon H. Wilson, the Acting Director of the Virgin Islands Bureau of Audit Control ("Government"), and permanently enjoined the Daily News from inspecting various audit reports. A timely notice of appeal was filed on February 9, 1988 giving this court jurisdiction under 28 U.S.C. § 1291. We reverse.
The Daily News sought to inspect seventeen audit reports allegedly prepared by the Virgin Islands Bureau of Audit Control pursuant to the Virgin Islands Public Records Statute, 3 V.I.C. §§ 881 et seq. That statute provides a right to examine and copy all public records unless the legislature has declared the particular record to be confidential.*fn1
On October 8, 1985, Bernetia Akin, a reporter for the Daily News, wrote to Gordon Wilson, the Acting Director of the Bureau of Audit and Control and requested copies of seventeen specific audit reports completed by the Bureau in its fiscal year 1985. Wilson responded to this request by commencing an action in the District Court of the Virgin Islands, seeking a permanent injunction which would restrain the Daily News from examining the requested reports.
Before the district court, the Government successfully resisted the Daily News' efforts. The Government argued that the audit reports were confidential and thus, under the exception provided in the statute, could not be examined. The Government's action seeking an injunction was predicated on 3 V.I.C. § 881(h) which states:
In accordance with the rules of civil procedure the district court may grant an injunction restraining the examination (including copying) of a specific public record, if the petition supported by affidavit shows and if the court finds that such examination would clearly not be in the public interest and would substantially and irreparably injure any person or persons. The district court shall take into account the policy of this chapter that free and open examination of public records is generally in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Such injunction shall be subject to the rules of civil procedure except that the court in its discretion may waive bond. Reasonable delay by any person in permitting the examination of a record in order to seek an injunction under this section is not a violation of this chapter, if such person believes in good faith that he is entitled to an injunction restraining the examination of such record.
In petitioning for an injunction in this case, the Government did not support its petition by filing an affidavit as required by the statute. Instead, the Government filed a verified complaint which failed to disclose the confidential nature of the audit reports. (A. 5). The complaint merely quoted a paragraph of 3 V.I.C. § 1202*fn2 pertaining to "audit data" (as distinct from "audit reports") and sought an injunction pursuant to § 881(h).
The Daily News argued that the § 1202 does not restrict access to audit reports, it only restricts access to audit data. The Daily News supported this argument by arguing that paragraph (a) of § 1202, which sets forth the confidentiality of audit data does not mention audit reports, while paragraph (b) of the statute, which sets forth the retention requirements, does. The Daily News further argued that since the legislature expressed a distinction between these two types of information, only audit data and not audit reports were confidential.
The district court ordered the government to submit all seventeen audit reports for in camera examination, but the court reviewed only eight. The Bureau of Audit and Control represented to the district court that there were no audit reports for the other nine reports requested by the Daily News.*fn3 This representation does not appear of record. ...