FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEES:

LEE B. MCTURNAN    JOHN D. WALDA
JACKIE M. BENNETT, JR.    CATHLEEN M. SHRADER
ANNE L. COWGUR    Barrett & McNagny
McTurnan & Turner    Fort Wayne, Indiana
Indianapolis, Indiana
     JOHN M. ROSS
    Indiana State Lottery Commission

     IN THE COURT OF APPEALS OF INDIANA

INDIANAPOLIS NEWSPAPERS, a division of        )
Indiana Newspapers, Inc.,                          )
                                                   )
Appellant-Defendant and                            )
Crossclaim Plaintiff,                              )    
                                                   )
vs.                                                )    No. 49A02-9911-CV-790
                                                   )
INDIANA STATE LOTTERY COMMISSION,                  )
JAMES F. MAGUIRE, in his capacity as Director,     )
Indiana State Lottery Commission,                  )
                                                   )
Appellees-Defendants and                           )
Crossclaim Defendants,                             )
                                                   )
INDIANA GROCERY & CONVENIENCE                  )
STORE ASSOCIATION, INDIANA RETAIL                  )
COUNCIL, INC., KOKOLENE MARKETING                  )
CORPORATION, VILLAGE PANTRY, LLC,                  )
MILLS SUPER MARKETS, SCOTT’S FOOD             )
STORES, AND EVERYBODY’S OIL CORP.,            )
                                                   )
    Appellees-Plaintiffs.                          )

    APPEAL FROM THE MARION CIRCUIT COURT
    The Honorable William T. Lawrence, Judge
    Cause No. 49C01-9908-CP-001680

    November 17, 2000

    OPINION - FOR PUBLICATION

ROBB, Judge


    Appellant-defendant/cross-claim plaintiff, Indianapolis Newspapers (the “Star”), appeals the trial court’s decision dismissing appellees-defendants/cross-claim defendants, the Indiana State Lottery Commission and its director, James F. Maguire (collectively referred to as the “Lottery”), from a cross-claim brought by the Star under Indiana’s Access to Public Records Act (the “APRA,” codified at Indiana Code sections 5-14-3-1 through -10) and releasing the Lottery from further liability in the action. We affirm in part and reverse and remand in part, holding that the Lottery’s counterclaim for interpleader was proper, but the trial court erred in discharging the Lottery from all liability in this action because the Star still has a potential claim for attorney fees against the Lottery dependent upon the outcome of the underlying litigation.

2.         Whether the trial court properly discharged the Lottery from the Star’s APRA cross-claim and directed that the litigation proceed between the Star and the Retailers;

3.    Whether the trial court properly discharged the Lottery from liability for the Star’s attorney fees, costs and reasonable expenses; and

4.     Whether certain findings of fact and conclusions of law were supported by the evidence.

R. 26 (citing Ind. Code § 4-30-1-2). The PAC opinion discussed Indiana and federal law regarding the definition of a “trade secret,” and noted that in an Illinois case directly on point, an appellate court rejected many of the same arguments as those raised by the Grocery Association and other retailers in the instant case, See footnote and held that the retailers opposing disclosure must release sales information in response to a public records request. R. 30. The PAC concluded:
It is my opinion that a public agency must make reasonable efforts to provide any disclosable information maintained in a computer database . . . . In addition, the sales information received and maintained in the Hoosier Lottery’s database is not a “trade secret” of its retailers under Indiana Code Section 5-14-3-4(a)(4) and therefore, must be disclosed upon request under the APRA.

R. 31.
On July 23, 1999, the Lottery wrote to the Grocery Association and other retailers opposing disclosure, expressing its “disappointment” with the PAC’s opinion, but stating it would be “compelled to acquiesce” and “make reasonable efforts to prepare and provide the Star with the report requested.” R. 32. “Unless we receive an intervening court order,” the Lottery Deputy Director wrote, “I anticipate delivering the requested report to the Star toward the end of next week.” R. 32 (emphasis added). The letter concluded, “The Lottery certainly regrets being compelled to produce this information and appreciates your efforts in support of our position.” R. 33. However, on July 30, 1999, the Lottery sent the following letter to the Star’s counsel:
Earlier today [the Lottery was contacted by counsel for] a number of retailers selling Hoosier Lottery tickets [which counsel had been retained] to investigate the possibility of securing a court order precluding the Hoosier Lottery from releasing the information you have requested. He has asked us to delay the release of this information until Wednesday, August 4 th. Given the substantial impact we believe the release of this information will have on these retailers, we at the Lottery feel that this is a reasonable request. We do not wish to rush the release of this information if an impartial review of the facts might cause a judge to feel that irreparable harm could be done to these retailers. If we do not receive a court order by the close of business on Tuesday, August 3rd, we will release the requested information to you on Wednesday, August 4th.

R. 99.
The following seven plaintiffs sued the Lottery on August 3, 1999: the Indiana Grocery & Convenience Store Association; Indiana Retail Council, Inc.; Kocolene Marketing Corporation; Village Pantry, LLC; Mills Super Markets; Scott’s Food Stores; and Everybody’s Oil Corp. (“the retailers”). They sued for injunctive relief to prohibit the disclosure sought by the Star. See footnote
    On August 13, 1999, the Star sought and received an order granting leave to intervene in the Plaintiffs’ suit against the Lottery. On August 20, 1999, the Lottery filed a “Counterclaim for Interpleader,” reciting its potential criminal liability if forced to release “confidential financial information,” as well as its potential liability to the Star for its attorney fees pursuant to Indiana Code section 5-14-3-9(h), and alleging that “the plaintiffs and [the Star] are the real parties in interest in this case.” See footnote R. 65. On September 1, 1999, the Star filed a 12(B)(6) motion to dismiss the Lottery’s interpleader counterclaim and a brief in support thereof, arguing that the relief requested in the interpleader “would defeat the purposes of the APRA and deny [the Star] its statutory . . . right to bring an action against [the Lottery] as the public agency that originally denied the request for the public records at issue and [its] right to recover attorneys’ fees.” R. 75-76.
    On October 1, 1999, the trial court conducted a hearing on the interpleader and the Star’s motion to dismiss. At the conclusion of the hearing, the trial court ordered the parties to submit proposed findings of fact and conclusions of law. On October 6, 1999, the trial court entered its judgment, ruling in pertinent part as follows:

2.    Pursuant to [Indiana Code section] 5-14-3-3, Lottery is obligated to allow any person to inspect and copy its public records, subject to certain exceptions.

3.    Pursuant to [Indiana Code section] 5-14-3-4(a), Lottery is prohibited from disclosing public records containing trade secrets.

4.    A legitimate issue exists regarding whether the information at issue in this case is, or is not, a trade secret. This Court is the proper forum for the resolution of this issue.

5.    “The purpose of Interpleader is to prevent the vexation of a multiplicity of actions.” Indianapolis Colts v. Mayor and City Council of Baltimore, 741 F.2d 954, 957 (7th Cir. 1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753 (1985). . . The multiple claims need not be meritorious; the threat of litigation is sufficient. United Farm Bureau Family Life Insurance Co. v. Fultz, 176 Ind. App. 217, 375 N.E.2d 601 (1978). 2 Harvey, Ind. Proc., Rules of Civil Proc. Anno. p. 273 (1987).

6.    Lottery is exposed to a multiplicity of actions:

    (a) potential liability for the damages which the retailers allege will occur upon the release of this information; and

    (b) potential liability for the Star’s attorney fees if Lottery refuses to release the information.

7.    Lottery has surrendered to the Court the information at issue and seeks to have the real parties in interest (Star and [Retailers]) litigate against each other to determine who is entitled to the information at issue.

8.    Lottery’s Counterclaim for Interpleader is sufficient under the provisions of Trial Rule 22(C).

9.    [Retailers] having filed this cause of action to preclude disclosure of the information at issue, Lottery properly withheld disclosure of said information prior to this court’s adjudication of the issues raised by [Retailers] and Star.

10.    The focus of the Star’s cause of action against Lottery is disclosure of the retailer specific sales information which information is now in the possession of the Court under seal. Lottery’s surrender of the information obviates the need for Lottery as a party.

11.    The Lottery’s actions did not force Star to sue to secure disclosure. Disclosure by Lottery was forthcoming when this lawsuit was filed. Said lawsuit is not frivolous and presents a legitimate issue for resolution by this Court and disclosure is properly postponed until both sides can be heard and a full judicial review can be had.

12.    The [Retailers] and Star are the proper parties necessary for such a full judicial review.

13.    Lottery is not a necessary party for the resolution of the issues before the Court and cannot reasonably be held liable for the on-going attorney fees of Star while the issues continue to be litigated .

14.    Litigation by Star would not have occurred but for the initiation of this lawsuit by plaintiffs. The [Retailers] brought the issue of disclosure or non-disclosure before the Court for resolution. Star did not need to be a party for the issue to be resolved. Star chose to intervene in order to be “at the table” when the issue was argued.

15.    Equity demands that Lottery cannot be responsible for attorney fees incurred by Star for intervening in a pending lawsuit which raised an issue which impacted Star’s interest.

16.    Based on the facts of this case, [Indiana Code section] 5-14-3-9(h) does not mandate Lottery’s payment of Star’s attorney fees.

1.    Lottery’s Counterclaim for Interpleader is hereby granted.

2.    Lottery and Maguire are discharged from liability as to the claims of the parties herein.

3.    The information deposited under seal with the Court is continued sealed until further order of this Court.

4.    This cause of action shall continue between [Retailers] and Star.

R. 129-33 (emphases added).
    On November 1, 1999, the Star moved the trial court to amend the judgment in order to provide finality and appealability under Indiana Trial Rule 54(B), which the trial court did on November 4, 1999, in an order reading in part: See footnote
(a) the Star may incur substantial expense and irreparable injury if the October 6, 1999 Judgment is erroneous and an appeal is delayed;

(b) the question of a citizen’s rights under the Indiana Access to Public Records Act is a substantial question of law; and

the motion for certification pursuant to [Indiana Appellate Rule] 4(B)(6) should be granted . . . .

R. 147.

45 Am. Jur. 2d, Interpleader § 1, at 454-55 (1999) (footnotes omitted). However, we must also be mindful that the General Assembly has articulated a liberal construction policy for the APRA. Ind. Code § 5-14-3-1.
    The Lottery’s counterclaim for interpleader alleged that it is the defendant in an action filed by the Retailers, and also a defendant to the Star’s cross-claim, both of which concern the Lottery’s disposition of sales information concerning the Retailers. It further alleged that it is subject to liability to the Retailers if it releases confidential information, and is subject to liability for the Star’s attorney fees if it does not release the information. Thus, the Lottery sought to tender the disputed information to the court and be discharged from the action, as the Retailers and the Star are the real parties in interest. The Star filed a Trial Rule 12(B)(6) motion to dismiss the counterclaim for interpleader, alleging that the counterclaim did not meet the requirements of Trial Rule 22. See footnote The Star argues that because the Lottery “could have avoided liability” under APRA “by fulfilling its duty to disclose public records,” it cannot avail itself of the multiple liability justification for interpleader. Brief of Appellant at 6.
Because of the equitable nature of the interpleader device, it bears noting that there is some question as to whether the Lottery has come into equity with clean hands. The novel question presented by the procedural posture of this case is whether a public agency such as the Lottery should be permitted to “preempt” or foreclose its liability under the APRA by, in effect, “stalling” until it is sued (perhaps at its own behest), and then, only after legal proceedings have been instituted, “drop” the information like the proverbial hot potato under seal with the court, and escape (via the device of interpleader) unharmed by the controversy swirling around its stalling tactic and initial refusal. However, under these facts, it is not relevant that the procedural history of this case did not follow a normal course or that the Lottery’s actions may have initially prompted the unusual course of events. Rather, because the APRA clearly contemplates that persons with claims to the requested information be included in any litigation, the Lottery is not precluded from seeking interpleader if it is otherwise proper.
“Interpleader is proper in cases such as a surety confronted by claims of subcontractors and materialmen which exceed the surety’s contractual liability, conflicting claims of entitlement to the proceeds of a life insurance policy, or automobile insurers surrendering the maximum sum of their liability to the court for disposition to plaintiffs in an accident case. The issue of whether the interpleaded defendants’ claims are adverse does not arise often.” Indianapolis Colts v. Mayor and City Council of Baltimore, 741 F.2d 954, 957 (7th Cir. 1984), cert. denied, 470 U.S. 1052 (1985). “Interpleader is a suit in equity. Because the sole basis for equitable relief to the stakeholder is the danger of exposure to double liability or the vexation of conflicting claims, the stakeholder must have a real and reasonable fear of double liability or vexatious, conflicting claims to justify interpleader.” Id. (citations omitted.) The Seventh Circuit found that the Colts’ characterization of [one party’s] claim did not “‘meet a minimal threshold level of substantiality.’” Id. at 958 (citing 7 C. Wright & A. Miller, Federal Practice and Procedure § 1704). Because the Colts could not assert “a reasonable fear of multiple liability or vexatious, conflicting claims,” interpleader jurisdiction was not proper, and the suit was dismissed. Id.
    Clearly, the Lottery’s particular use of interpleader in this case is novel. Instead of holding an amount of money to which two or more parties assert entitlement, as in the usual interpleader situation, here, the Lottery holds information to which one party claims as entitlement by statute and another party claims a proprietary interest. In each situation, the stakeholder is pulled in two different directions and may have no personal interest in the outcome other than knowing what to do with the stake. Thus, because we are to give interpleader a liberal construction, we can discern no reason why interpleader should not be used in such a way. The Star argues that even if interpleader may properly be employed in this context, the Lottery has nonetheless failed to meet the requirements of Indiana Trial Rule 22 in this case. We disagree.
The Star first argues that the Lottery has failed to meet the requirements of Trial Rule 22(A) by failing to “attempt to join any party or address a situation with a likelihood of conflicting results.” Brief of Appellants at 29. Given the procedural posture of this case, there were no parties to join: the Star and the Retailers were already parties. Additionally, the claims of the Star and the Retailers against the Lottery were adverse: the Lottery could not do one thing to satisfy both parties. Either the Lottery released the information to the Star pursuant to its request and left the Retailers dissatisfied and with a possible claim against the Lottery, or the Lottery denied release of the information to the Star and left the Star with a claim against the Lottery and a possible claim for attorney fees. The Star argues that because the Lottery “could have avoided liability” under the APRA “by fulfilling its duty to disclose public records,” it cannot avail itself of the multiple liability justification for interpleader. Brief of Appellant at 6. However, the Star fails to recognize that the Lottery could only have avoided liability to the Star by such a course of action; the Lottery would still have been open to potential liability to the Retailers. The requirements of Trial Rule 22(A) were satisfied by the Lottery’s counterclaim.
The Star also alleges that the Lottery failed to meet the additional requirement of Trial Rule 22(C) that “it prays that the parties interpleaded assert their claims against the party seeking interpleader and against each other.” The Star and the Retailers had each already asserted their claims against the Lottery, and the Lottery’s counterclaim for interpleader did request that it be discharged from this action, allowing the Star and the Retailers, as the “real parties in interest,” to litigate against each other. This is sufficient to satisfy the requirements of Trial Rule 22(D). The trial court did not err in denying the Star’s Rule 12(B)(6) motion to dismiss the Lottery’s counterclaim for interpleader on the basis that the counterclaim was procedurally insufficient. We turn now to the substantive sufficiency of the counterclaim.

The Lottery claims that this language demonstrates that “the APRA clearly contemplates circumstances in which, as here, the public agency holds records the nature of which is in dispute as between a member of the public requesting disclosure and the member of the public from whom the records originated or about whom the records concern.” Brief of Appellees at 12. Thus, the Lottery’s position is that the statute allows for it to be discharged from the action.
    We agree, to a point, with the Lottery’s assessment. It is not the Lottery’s but the Retailers’ claim of trade secrets that purportedly exempts the records from the statutory disclosure requirements. We can envision few reasons why the legislature would specifically provide for intervention by the person who supplied part of the public record other than to provide for that person to step into the shoes of the public agency which is asserting that person’s rights and litigate the action on his own behalf. The burden of proof remains on the entity that is asserting that denial of access to the records is proper; regardless of who is actually defending the denial, the burden never shifts to the person seeking access. Thus, we see no error in discharging the Lottery from that part of the action that seeks to determine whether denial was proper, and leaving the Star and the Retailers to litigate that issue.