T1 Petitioner, Citizens Against Taxpayer Abuse, Inc., appeals the district court's order granting the City of Oklahoma City's motion for summary judgment. Petitioner timely filed a petition in error and motion to retain. We granted petitioner's motion to retain the appeal in this Court on January 23, 2003. We affirm the trial court's order granting summary judgment in favor of the City of Oklahoma City.
I. FACTS AND PROCEDURAL HISTORY
12 On March 12, 2002, the law firm of Conner & Winters, P.C., on behalf of certain taxpayers and other citizens, submitted a written request to the City of Oklahoma City (City) under the provisions of the Oklahoma Open Records Act (Act), 51 0.98.2001, §§ 24A.1 et seq. The firm requested permission to inspect and copy all documents pertaining to a proposed lease of City property to Bass Pro Shops (Bass Pro). The City complied with the request in part but refused to release Bass Pro's financial documents. The City claimed the documents were used solely to determine Bass Pro's credit worthiness, wеre not "records" under the Act and accordingly were exempt from disclosure.
13 On March 26, 2002, Citizens Against Taxpayer Abuse, Inc. (CATA), a nonprofit corporation, filed a petition for declaratory judgment and writ of mandamus alleging the documents withheld by the City were subject to disclosure under the Act. In the petition, CATA maintained that even if the City initially examined Bass Pro's financial documents to determine credit worthiness, City officials subsequently used the documents or information contained therein for a political purpose to gain support for the project by arguing it made financial sense to spend $17,000,000 in taxpayer funds. CATA contended the City's actions went beyond the Act's credit evaluation exemption and accordingly the documents were "records" subject to disclosure under the Act. CATA also maintained that the City cannot rely on a confidentiality agreement signed by a city official prior to review of Bass Pro's financial documents to alter the Act's requirement of disclosure of public records.
T4 The City answered that CATA did not have standing to object to the City's response to the Open Records request because CATA did not make the request at issue.
1
In addition, the City contended that the documents were exempt from disclosure under the Act because the documents were used solely to determine Bass Pro's credit worthiness. The City also maintained that it had not waived the credit evaluation exemption. While it acknowledged that city officials had made statements concerning the economic viability of the project, the City contended the statements were based on information included in a revenue analysis of the proposed project prepared for the City by the consulting firm of Peckham Guyton Albers & Viets (PGAV) and not on information secured from Bass Pro's financial documents. The City maintained that all information contained in Bass Pro's financial documents has remained confidential and has not been reviewed by any city employee other than Catherine O'Con-
15 Both parties moved for summary judgment. The district judge, after in camera review of Bass Pro's financial documents, denied CATA's motion for summary judgment and granted the City's motion for summary judgment. The trial court held the Act expressly protects Bass Pro's financial documents because the documents were submitted to and reviewed by the City for the purpose of evaluating Bass Pro's credit worthiness. The court held there was no evidence the City abandoned or waived the credit worthiness exemption. Finally, the court determined the City fully complied with the provisions of the Open Records Act. CATA timely appealed and we granted CATA's motion to retain the aрpeal in this Court.
II. STANDARD OF REVIEW
¶ 6 Whether summary judgment was properly entered is a question of law which we review de novo. Manley v. Brown,
III. ANALYSIS
A. CATA has Standing to Tender the Issues Under Consideration.
¶ 7 The City challenges CATA's standing to pursue this action. Standing refers to the legal rights of a person to challenge the conduct of another in a judicial forum. Hendrick v. Walters,
18 The Open Records Act provides that "any person denied access to a record of a public body or public official may bring a civil suit for declarative and/or injunctive relief". 51 0.98.2001, § 24A.17(B). According to the record, two attorneys from the law firm of Conner & Winters submitted the request at issue on behalf of certain taxpayers and other citizens,. CATA's certificate of incorporation reveals that the two attorneys who submitted the records request are listed as CATA's incorporators, along with one other pеrson. Further, Conner & Winters represented CATA at the trial level and in this appeal.
19 We conclude there is a sufficient connection between Conner & Winters and CATA as it relates to the Open Records request to support CATA's standing to pursue this appeal. Although CATA was not legally formed until after the request at issue
¶ 10 The purpose of a standing requirement is to ensure courts address actual controversies between parties who have suffi-client adverse interests. This case has been litigated intensely at both the trial level and on appeal, and there is no danger this Court will be misled by the failure of the parties to adequately explore and argue the issues. Accordingly, we find CATA has a sufficient stake in the outcome of this case to prosecute the appeal. We now turn to CATA's contentions on appeal.
B. The Summary Judgment Record Demonstrates the City's Actions Did Not Amount to a Waiver of the Applicable Exemption Under the Open Records Act.
¶ 11 The Oklahoma Legislature enacted the Open Records Act, 51 00.98.2001, §§ 24A.1 et seq., in 1985. 2 This Act provides that "all records of public bodies аnd public officials shall be open to any person for inspection, copying, and/or mechanical reproduction during regular business hours." 51 0.8.2001, § 24A.5. "Record" is defined as all documents, regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property. 51 0.98.2001, § 24A.3(1).
¶ 12 The purpose of the Act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power. 51 0.8. 2001, § 24A.2. Each public body subject to the Act is responsible for making records available to the public 51 0.S8.2001, § 24A.5(5). Unless а record falls within a statutorily prescribed exemption in the Act, the record must be made available for public inspection. The public body urging an exemption has the burden to establish the applicability of such exemption. See Merrill v. Oklahoma Tax Comm'n,
1183 The Act exempts certain information and documents from the definition of the word "record". See 51 0.98.2001, § 244.8. Section 24A.3(1) provides that "record" does not include "persоnal financial information, credit reports or other financial data obtained by or submitted to a public body for the purpose of evaluating credit worthiness, obtaining a license, permit, or for the purpose of becoming qualified to contract with a public body." The City relied upon this exemption to avoid disclosure of the financial documents at issue.
T 14 In its summary judgment motion, the City maintained it examined and used Bass Pro's financial documents solely to determine whether Bass Pro was financially able to perform the terms of its proposed lease agreement with the City, le., its credit worthiness. In its response, CATA acknowledged that the City initially reviewed Bass Pro's financial documents to evaluate Bass Pro's credit worthiness. However, CATA asserted that the uncontroverted facts establish the City subsequently waived the credit worthiness exemption by using the doeu-mеnts to publicly support its position that the Bass Pro project be implemented, a purpose other than what the exemption is limited to.
115 The City, as the moving party, had the initial burden of showing that there is no substantial controversy as to any material fact on the issue of waiver. Bowers v. Wimberly,
T16 Once the City made the required shоwing of the moving party, CATA assumed the burden of demonstrating the existence of a material fact that would justify a trial on the issue. Bowers,
17 CATA offered the following statement allegedly made by the City Manager: "[blased upon the financial information that he reviewed, but did not disclose", he concluded:
1. "the sales estimates of the Oklahoma City Bass Pro ... are reasonable";
2. "the analysis of trade area and distances traveled by customers ... are rеasonable";
3. "Bass Pro, Inc. has the financial resources to meet or exceed the lease and sales expectations in Oklahoma City"; and
4. "[The City Manager] did not see any indication based upon the data reviewed that the City Council should not continue its consideration of the Bass Pro Shops proposal".
A review of the record reveals that these statements were not made by the City Manager, but were made by Catherine O'Connor in a memorandum to the City Manager. In addition, when Catherine O'Connor's statements are reviewed in full (that is, with the conveniently placed ellipses removed), it is clear that her conclusions in this statement refer to the PGAV report. Catherine O'Con-nor's memorandum actually stated that "the sales estimates for the Oklahoma City Bass Pro Shops included in the Revenue and Economic Impact Analysis Report by PGAV arе reasonable" and "the analysis of trade area and distances traveled by customers included in the Revenue and Economic Impact Analysis Report by PGAV are reasonable". (emphasis added) These statements fail to contradict Catherine O'Connor's affidavit and actually support the City's position that city officials relied upon the PGAV report to support other statements.
1 18 CATA points to two statements by the City Mаnager, one declaring that "we stand by PGAV's report, because of what we've done to verify those numbers" and another "that the Bass Pro project was beneficial economically because it would strengthen the City's sales taxes and even soften future budget cuts". It is clear from the context of these statements that the City Manager was promoting the reliability of the PGAV report prepared by an independent consultаnt. The statements reveal no specific information about the financial data contained in Bass Pro's financial documents.
{ 19 CATA directs this Court to two other statements, one in which the "Mayor argued to the public that the Bass Pro project made economic sense and would generate $5 in tax revenues for every dollar spent in incentives" and another in which Catherine O'Connor stated at a City Council meeting "that the рroject would generate $24.6 million in direct revenue and $129.9 million in indirect revenues over the 20 year lease period". Both of these statements are opinions of public officials in the form of an economic forecast of future revenues expected to be derived from the project. Neither statement reveals any specific information about the financial data contained in Bass Pro's finanсial documents. Finally, both statements were made by public officials who had access to the PGAV report.
1 20 Waiver is defined as a voluntary relinquishment of a known right. Faulkenberry
{121 Federal courts that have considered the Freedom of Information Act (FOIA), 5 U.S.C. §§ 552, et seq., have similarly concluded that waivers of exemptions from public releаse of documents can exist, but should be narrowly construed.
4
See eg., Simmons v. United States Dept. of Justice,
¶ 22 The trial judge held a hearing in which he examined the parties motions for summary judgment, heard oral arguments, and conducted an in camera review of Bass Pro's financial documents.
5
He subsequently entered judgment for the City on its motion for summary judgment and denied CATA's motion for summary judgment. In the journal entry, he found that the summary judgment record is devoid of anything "to suggest an abandonment or waiver by the Respondent City of the exemption provided by 51 0.8.2001, § 24A.3(1), for financial data obtained by or submitted to a public body for the purpose of evaluating eredit worthiness." We agree. Waivers of exemption of public records can exist, but should be narrowly construed. In this instance, there was no release of the documents to the public. An examination of each statement offered by CATA reveals that the statements did not quote any portion of the financial documents, contained no specific information regarding the financial data and did not summarize the information contained in the documents. Rather the statements related to the PGAV report or they were merely the expressions of opinions of public officials. A public body does not waive an exemption merely by relying on the financial information contained in the documents in some fashion. Such a construction would unjustifiably constrain the public body in the exercise of its official duties. CATA has failed to meet its burden of demonstrating the existence of a material fact that would justify a trial on the issue of
C. The Summary Judgment Record Contains No Evidence that the City Relied Upon the Confidentiality Agreement to Support Its Decision to Withhold the Documents аt Issue.
23 CATA also alleged the City refused to disclose Bass Pro's financial documents because of a confidentiality agreement it signed with Bass Pro. The City maintained, however, that it never relied upon the confidentiality agreement to support its decision to withhold the documents at issue. In fact, the City concedes a confidentiality agreement cannot change the statutory requirements of disclosure of public recоrds imposed upon a public body under the Act and that any basis for withholding a public record must be found in the statute.
[ 24 The City's summary judgment motion established that Bass Pro's financial documents are exempt from disclosure by virtue of the credit worthiness exemption. The City had a clear legal basis for withholding the documents under the statute. CATA's summary judgment motion does not establish that the City relied on something other than this exemption when it withheld the documents аt issue. As long as the City had an adequate basis under the statute to withhold Bass Pro's financial documents, it is entitled to summary judgment. Accordingly, we affirm the trial court's order granting summary judgment to the City.
IV. CONCLUSION
125 CATA has standing to tender the issues under consideration because there is a sufficient connection between Conner & Winters and CATA as it relates to the Open Records request at issue. In addition, it is undisputed in the summary judgment record that the City reviewed Bass Pro's financiаl documents to evaluate Bass Pro's credit worthiness. The record does not demonstrate that the City's actions amounted to a waiver of the applicable exemption under the Open Records Act. 6 Finally, the record does not demonstrate that the City relied upon the confidentiality agreement to support its decision to withhold the requested documents. Accordingly, we affirm the trial court's order granting summary judgment to the City.
SUMMARY JUDGMENT AFFIRMED.
Notes
. The City asserts CATA was not formed until March 20, 2002, approximately eight (8) days after the Open Records request at issue was made.
. 1985 Okla.Sess.Laws, ch. 355, created the Oklahoma Open Records Act.
. In their briefin-chief, CATA mentions under the Summary of Record that the trial court entered a protection order that prevented them from taking the deposition of Catherine O'Con-nor. If this can be considered an argument for reversal of summary judgment, it is not supported by legal authority and is deemed abandoned. See Hadnot v. Shaw,
. We find federal precedent concerning Freedom of Information Act proceedings to be persuasive. See Tulsa Tribune Co. v. Oklahoma Horse Racing Comm'n,
. The financial doсuments at issue were not included in the record on appeal. The appellant bears the burden of presenting the court with a record to support the issues raised. Smith v. The Baptist Foundation of Oklahoma,
. In view of our holding that the City did not waive the credit worthiness exemption under the Open Records Act, we need not pass on the absence of Bass Pro, a party, who under 12 0©.$.2001, § 2019, appears to be necessary for an effective adjudication of its interest in privacy.