“Delaware's rules of statutory construction are straightforward. A court must first determine whether or not the statute is ambiguous. If the statute is found to be clear and unambiguous, then the plain meaning of the statutory language controls. The fact that the parties disagree does not create ambiguity. Rather, a statute is ambiguous only if it is reasonably susceptible to different interpretations, or if a literal reading of the statute would lead to an unreasonable or absurd result not contemplated by the Legislature. When confronting an ambiguous statute, a court should construe it in a way that will promote its apparent purpose and harmonize (it) with other statutes within the statutory scheme.” See Insurance Commissioner of the State of Delaware vs. Sun Life Assurance Company of Canada (U.S.), S. Ct. of Delaware (May 13, 2011).
As discussed above, the statute unambiguously created a right of access, subject only to reasonable standards or restrictions. When the issue of whether the right could be completely barred or denied reached the courts, all of the arguments presented for denying access were rejected. Furthermore, the court never reached the issue raised by its own incidental comment because there was no explicit wording barring access to information in the partnership agreement. In other words, the court merely offered a hypothetical that had no actual bearing on the facts and arguments necessary to reach its decision.
In conclusion, practitioners involved in writing or interpreting partnership agreements need to consider and decide how to deal with the court's incidental remark in the P-G case. If the wording is not viewed as merely an incidental observation that is not legally binding (obiter dictum), then it is difficult to see how one can square the competing authorities because the court's decision doesn't supply the reasoning for such an apparent non sequitur.
The better course is to embrace the P-G decision as one that stands for protecting and defending the statutory right; not eviscerating it. Reasonable restrictions on access to information between LPs are certainly permissible to protect the confidentiality of information, but when such restrictions effectively deny any and all access by and between LPs, the partnership agreement may very well violate the statutorily created right of access that remains the law in Delaware. Consequently, general partners and/or authors of LP agreements should not assume that LPs can be denied access to information about other LPs by simply drafting more specific wording in the LP agreement. “Reasonable restrictions” on providing access to information by and between LPs is permissible, but not the total denial of all access to such information.