Case: 25CH1:15-cv-001262

Document #: 11

Filed: 10/12/2015

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IN THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT

HINDS COUNTY, MISSISSIPPI

IN RE:

PETITION OF RENAISSANCE AT COLONY PARK, LLC FOR

PROTECTIVE ORDER PREVENTING DISCLOSURE OF
DOCUMENTS
CIVIL ACTION NO. G2015-1262 S/2

REBUTTAL IN SUPPORT OF
MOTION TO INTERVENE AND VACATE PROTECTIVE ORDER

Gannett Rivers States Publishing Corp. d/b/a The Clarion-Ledger (The Clarion-Ledger)
demonstrated in its Motion to Intervene and Vacate Protective Order (Doc. 4) that the Court
should revoke the Protective Order solely on the basis that the Renaissance at Colony Park, LLC
(Renaissance) filed its Petition and obtained the Protective Order from this Court without
providing notice to The Clarion-Ledger even when it admits it had knowledge of The ClarionLedgers pending public records request. If the Court does not vacate the Protective Order on this
basis, The Clarion-Ledger demonstrated in its Motion that Miss. Code Ann. 57-1-14(1) does not
exempt from disclosure as public records the records of the Renaissance that it submitted to the
Mississippi Development Authority (MDA), and the Renaissance has not yet made a showing
that any of the requested records contain information exempt from disclosure under Miss. Code
Ann. 25-61-9 or 79-23-1. In further support of the Motion, The Clarion-Ledger states the
following:
I.

The Court should hold that a party seeking a protective order preventing the
disclosure of information must provide notice of its intent to the adverse party
seeking disclosure of the information as a public record.
1.

The Renaissance filed its Petition for Protective Order (Ex. A), had a hearing on

the motion, and obtained the Protective Order on the same day, September 3, 2015. (Ex. B) It

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never provided notice to The Clarion-Ledger, even though it admits it was aware of The ClarionLedgers pending public records request the day before on September 2, 2015. (Response, Doc.
8, p. 3, 7) This is a violation of The Clarion-Ledgers due process rights and an inefficient,
secretive practice that disrupts judicial efficiency.
2.

Miss. R. Civ. P. 26(d) and the provisions of the Mississippi Public Records Act of

1983 do not expressly address whether notice to a party making a public records request is
required before a party obtains a protective order. The Court should hold that one is implied to
exist under Rule 26(d) and the public records statutes.
3.

Miss. Rule. Civ. P. 26(d) provides the mechanism by which parties obtain

protective orders. It presumes notice would be provided to adverse parties because it speaks
generally to protective orders that are obtained during the course of discovery in a case already
filed in court. In that circumstance, it is a foregone conclusion that notice to the adverse party
would be required.
4.

This presumption that notice be provided to adverse parties when obtaining a

protective order should not disappear simply because the adverse party has asserted its rights in a
public records request but not yet filed an action in court. Rather, in a situation such as this in
which The Clarion-Ledger has asserted its rights in a public records request to obtain information
that is public record under the Mississippi Public Records Act of 1983, the party seeking
protection of that information in a petition to the Court should have to notify The Clarion-Ledger
of its petition and intention to seek a protective order. The Renaissance did not do that even
though it knew The Clarion-Ledger had a pending public records request.
5.

Holding that a notice requirement exists under Rule 26(d) and the public records

statutes in this circumstance would not only be in accordance with the presumption under Rule

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26(d) that adverse parties have notice that a party is seeking a protective order, but it would also
be in accordance with the requirement of notice found in Rule 65 regarding injunctive relief.
Like a temporary restraining order or injunction, a protective order prevents a party (The
Clarion-Ledger) from taking certain actions (obtaining records it has requested). The central
rationale for requiring notice to an adverse party before issuing injunctive relief is that both sides
to a dispute have an opportunity to be heard. See Granny Goose Foods, Inc. v. Brotherhood of
Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, etc., 415 U.S. 423, 438-39
(1974) (discussing briefly the history to the notice requirement for injunctive relief under Fed. R.
Civ. P. 65 and stating [t]he stringent restrictions imposedby Rule 65 on the availability of ex
parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to
the notion of court action taken before reasonable notice and an opportunity to be heard has been
granted both sides of a dispute) (emphasis added). Here, The Clarion-Ledger never had an
opportunity to be heard before the Renaissance obtained the Protective Order.
6.

This secretive procedural maneuver by the Renaissance violates The Clarion-

Ledgers due process rights as protected by the Fourteenth Amendment to the United States
Constitution and Art. III, 14 of the Mississippi Constitution and results in judicial inefficiency
because the Court must now hear arguments concerning the Protective Order that could have
been heard in the first instance had the Renaissance provided notice to The Clarion-Ledger.
Despite the Renaissances claims to the contrary, this secretive procedural maneuver has
prejudiced The Clarion-Ledger because it still does not even have the public records that the
Renaissance cannot state in good faith contain trade secrets or confidential commercial or
financial information and are currently covered by the Protective Order. Had The Clarion-Ledger
been properly noticed, then at the very least it already would have received a substantial number

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of documents with redactions only as to such matters as the Court determined were properly
exempt from disclosure. Instead, The Clarion-Ledger is having to invest significant time to seek
those records through a Motion that includes arguments that could have been heard by the Court
in the first instance had the Renaissance properly noticed The Clarion-Ledger. The Court should
vacate the Order on the notice basis alone.
II.

Section 57-1-14 exempts from disclosure only the records of the MDA, and not
the records of other parties submitted to the MDA, as evidenced by the fact that
not even the MDA has cited Section 57-1-14 for the proposition that it exempts
from disclosure the requested information.
7.

In the MDAs letters and emails to The Clarion-Ledger (Ex. C) and letter to Chris

Gouras (Ex. D), it never cited Section 57-1-14 for the proposition that it exempts from disclosure
the requested information. In fact, it stated that [t]hese pages can be provided with appropriate
redactions of exempted material in accordance with Miss. Code Ann. 25-61-5(2). Id.
8.

The MDA is the state of Mississippis lead economic and community

development agency, with approximately 300 employees engaged in providing services to

businesses, communities and workers throughout Mississippi. The agency works to recruit new
business to the state and retain and expand existing Mississippi industry and business. (Ex. E) If
the language of Section 57-1-14 exempted from disclosure not only the records of the MDA but
also the records of other parties submitted to it, and if this exemption were necessary for
development projects as the Renaissance argues, the MDA would have raised that point as the
states lead economic and community development agency in its letter and emails to The
Clarion-Ledger and letter to Mr. Gouras regarding the requested records. It did not.
9.

As discussed in its Motion, the MDA likely did not cite Section 57-1-14 for this

proposition because such a broad reading of Section 57-1-14(1) never would have occurred to it.
Section 57-1-14(1) reads:
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Any records of the Department of Economic and Community Development which

contain client information concerning development projects shall be exempt from
the provisions of the Mississippi Public Records Act of 1983 for a period of two
(2) years after receipt of the information by the department.
(Emphasis added) The provision is meant to exempt from public records disclosure internally
created MDA documents, i.e., work product of the MDA, that rely upon information in
documents submitted by other parties.
10.

Section 57-1-14(1) is not meant to exempt from public records disclosure the

documents submitted by other parties. The documents submitted by other parties are protected,
to the extent they contain confidential information under Miss. Code Ann. 25-61-9 and 79-231, by Section 57-1-14(2), which reads:
Confidential client information in public records held by the department shall be
exempt from the provisions of the Mississippi Public Records Act of 1983 during
the period of review and negotiation on a project proposal and for a period of
thirty (30) days after approval, disapproval or abandonment of the proposal not to
exceed one (1) year by the department in writing.
(Emphasis added)
11.

Section 57-1-14(2) protects a developers ability to negotiate with the State and

the States ability to attract economic development. Section 57-1-14(2) is entirely unnecessary
if any records of the MDA in Section 57-1-14(1) is interpreted so broadly as to mean it
includes the records of other parties submitted to the MDA, and that they are to remain
confidential for a period of two years.
12.

The Renaissance is advocating an incredibly broad reading of Section 57-1-14. It

would exempt from disclosure any records submitted to the MDA concerning any development
projects, and not solely records considered confidential under Sections 25-61-9 and 79-23-1.
This was not the Legislatures intent. Were it, the MDA would have cited it in its correspondence
with The Clarion-Ledger and Mr. Gouras.
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13.

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Ascribing this broad meaning to Section 57-1-14(1), which would render

meaningless Section 57-1-14(2), also would violate the well-established rule of statutory
construction that Courts are not at liberty to ascribe to any statute a construction which would
make a part of it, in some cases, meaningless and ineffective if another reasonable construction
can be found which would give it meaning and effectiveness in all cases within its purview.
Davis v. Miller, 32 So. 2d 871, 873 (Miss. 1947). [T]his Court is obliged, whenever reasonable,
to reach an interpretation which gives effect to all the statutory language, Gilmer v. State, 955
So. 2d 829, 835 (Miss. 2007), which applied here means that only the records of the MDA, and
not the records of other parties submitted to the MDA, are exempt from disclosure under Section
57-1-14(1).
14.

As stated in its Motion, this reading also is in accordance with two principles set

forth by the Mississippi Supreme Court: (1) there is to be a liberal construction of the general
disclosure provisions of a public records act, whereas a standard of strict construction is to be
applied to the exceptions to disclosure; [and] (2) any doubt concerning disclosure should be
resolved in favor of disclosure. Miss. Dep't of Wildlife v. Miss. Wildlife Enforcement Officers'
Assoc., Inc., 740 So.2d 925, 936 (Miss. 1999). 1
III.

The Renaissance has made now showing that any of the requested information is
exempt from disclosure under Sections 25-61-9 or 79-23-1.
15.

The Renaissance has made no showing that any of the requested information is

exempt from disclosure under Sections 25-61-9 or 79-23-1, nor has The Clarion-Ledger even
been provided access to redacted copies of the 3650 pages of public records found by the
MDA to be responsive to the Request. In fact, on information and belief, other than the

The Clarion-Ledger will not address the Renaissances argument that Section 57-1-14 supersedes the Mississippi
Public Records Act of 1983 because under a correct interpretation of Section 57-1-14 it is in accordance with the
Public Records Act and there is no need for the statute to supersede the Act.
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application and certificate, the MDA has not even printed the 3650 pages of documents for
review by any party to determine whether they contain any confidential information.
16.

The Clarion-Ledger has a right to inspect those documents. Additionally, it did

not narrow its request for information, as argued by the Renaissance, when Ms. Sarah Fowler of
The Clarion-Ledger emailed Jeff Rent of the MDA for a copy of the application(s) related to
Mattiace and the cultural retail tax. Also, I would like to personally inspect the documents.
(Emails) (emphasis added) Mr. Rents email to Royce Cole regarding Ms. Fowlers email
demonstrates that Fowlers email didnt serve as a narrowing of the request to only the
application when stating Ms. Fowler did not inspect the documents. She did receive the
application and certificate. (Id.) (emphasis added)
17.

To the extent that Renaissance maintains a specific document is protected by

Sections 25-61-9 and 79-23-1, it should be required to present such portion of any such
document to the Court for in camera review. All unredacted material should be released
forthwith to The Clarion-Ledger as required by Section 25-61-9. Upon the completion of the
Courts review of the redacted material, any portion of the redacted material that the Court
determines not to be exempt shall then be released by further Order of the Court.

CONCLUSION
ACCORDINGLY, The Clarion-Ledger respectfully requests the Court issue an Order
vacating the September 3, 2015 Protective Order of this Court. In the alternative, The ClarionLedger respectfully requests the Court modify the Protective Order so as to remain in effect only
until December 24, 2015, which is two years after the MDA received the requested information
from the Renaissance. The Clarion-Ledger further request such other relief as the Court deems
appropriate.
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THIS, the 12th day of October, 2015.

Respectfully submitted,
GANNETT RIVER STATES PUBLISHING
CORP. D/B/A THE CLARION-LEDGER

By:

OF COUNSEL:
Leonard D. Van Slyke, MSB No. 6589
Matthew W. Allen, MSB No. 101605
Brunini, Grantham, Grower & Hewes, PLLC
The Pinnacle Building, Suite 100
190 East Capitol Street (39201)
Post Office Drawer 119
Jackson, Mississippi 39205 0119
Telephone:
(601) 948 3101
Facsimile:
(601) 960-6902
lvanslyke@brunini.com
mwallen@brunini.com
Attorneys for Clarion Ledger

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/s/ Leonard D. Van Slyke

One of Its Attorneys

Case: 25CH1:15-cv-001262

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CERTIFICATE OF SERVICE
I, Leonard D. Van Slyke, do hereby certify that I have this day served, via electronic
mail, and first class mail, U.S. postage prepaid, a true and correct copy of the foregoing
document, to the following counsel of record and other parties with an interest in this matter:
Mark W. Garriga
Amanda Jones Tollison
Butler Snow LLP
Post Office Box 6010
Ridgeland, MS 39158-6010

mark.garriga@butlersnow.com
amanda.tollison@butlersnow.com

Charles Bush, M.D.

454 Greenwood Lane
Ridgeland, MS 39157

cbushmd@aol.com

Jimmy Hendrix
5106 Old Canton Road
Jackson, MS 39211

kingfish1935@gmail.com

Mr. Jeff Rent

Public Relations and Media Manager
Mississippi Development Authority
P.O. Box 849
Jackson, MS 39205-0849

jrent@mississippi.org

Pursuant to Miss. Code Ann. 25-61-13, the Mississippi Ethics Commission is also
being served via first class mail, U.S. postage prepaid, a true and correct copy of the foregoing
document for informational purposes at the following address:
Mississippi Ethics Commission
Attn: Tom Hood, Executive Director
660 North Street, Suite 100-C
Jackson, MS 39202
THIS, the 12th day of October, 2015
/s/ Leonard D. Van Slyke
LEONARD D. VAN SLYKE

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