SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2013-SA COA GULF PUBLISHING COMPANY, INC.

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1 E-Filed Document Apr :17: SA COA Pages: 67 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2013-SA COA MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING, JIM HOOD, CHRIS LOTT, DAVID HUGGINS AND MELISSA C. PATTERSON Appellants v. V. GULF PUBLISHING COMPANY, INC. Appellee Consolidated with: 2014-SA COA Melissa C. Patterson v. Gulf Publishing Company, Inc. Appellant ON APPEAL FROM THE CHANCERY COURT OF HARRISON COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT BRIEF OF APPELLANTS, MISSISSIPPI DEPARTMENT OF MARINE RESOURCES, JOSEPH A. RUNNELS, JR. and SANDRA R. CHESNUT ORALARGUAfENTREQUESTED ORALARGUlJIIENTREQUESTED RONALD G. PERESICH, MSB #4113 Page, Mannino, Peresich & McDermott, McDennott, P.L.L.C. 759 Vieux Marche Mall P. 0. O. Drawer 289 Biloxi, MS Telephone: (228) Facsimile: (228) WILLIAM V. WESTBROOK, III, MSB #7119 Page, Mannino, Peresich & McDermott, P.L.L.C th Street Gulfport, MS Telephone: Facsimile: Attorneys for ljllississippi Afississippi Department of ljllarine Afarine Resources, Joseph A. Runnels, Jr., and Sandra R. Chesnut

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO SA COA MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING, JIM HOOD, CHRIS LOTT, DAVID HUGGINS AND MELISSA C. PATTERSON v. GULF PUBLISHING COMPANY, INC. Appellants Appellee Consolidated with: 2014-SA COA Melissa C. Patterson v. Gulf Publishing Company, Inc. Appellant Appellee CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons or entities have an interest in the outcome ofthis case. These representations are made in order that the Justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. The Appellant, Mississippi Department of Marine Resources, Defendant/Appellant ("DMR"); 2. Hon. Joseph A. Runnels, Jr., Mississippi Special Assistant Atty. Gen. ex rel. trial counsel for DMR, Defendant/ Appellant ("Mr. Runnels"); 3. Hon. Sandra R. Chesnut, Mississippi Special Assistant Atty. Gen. ex rel. trial counsel for DMR, Defendant/ Appellant ("Ms. Chesnut"); 4. Hon. Jim Hood, Atty. Gen., State of Mississippi, Defendant/Appellant; 1

3 5. Hon. Harold Pizzetta, Assistant Atty. Gen., State of Mississippi, Defendant/ Appellant; 6. Mississippi Department of Audit ("MDA"), Defendant/ Appellant; 7. Hon. Stacy Pickering, Auditor, State of Mississippi, Defendant/Appellant; 8. Hon. Melissa Patterson, ex rel. trial counsel for MDA, Defendant/Appellant; 9. Hon. David Huggins, Defendant/Appellant, represented by Arthur F. Jernigan, Jr.; 10. Hon. Chris Lott, Defendant/Appellant, represented by Arthur F. Jernigan, Jr.; 11. Gulf Publishing Company, Inc., Appellee ("GP"); 12. Hon. Jennifer Schloegel, Chancellor, 8th Chancery Dist., Mississippi, Harrison, Hancock and Stone Counties ("the Chancellor") MISSISSIPPI DEPARTMENT OF MARINE RESOURCES, JOSEPH A. RUNNELS, JR. and SANDRA R. CHESNUT By: By: Isl Ronald G. Peresich RONALD G. PERESICH, MSB #4113 Page, Mannino, Peresich & McDermott, P.L.L.C. 759 Vieux Marche Mall P. 0. Drawer 289 Biloxi, MS Telephone: (228) Facsimile: (228) Isl William V Westbrook. III WILLIAM V. WESTBROOK, III, MSB #7119 Page, Mannino, Peresich & McDermott, P.L.L.C th Street Gulfport, MS Telephone: Facsimile: cwestbrook@pmp.org 11

4 TABLE OF CONTENTS I. CERTIFICATE OF INTERESTED PERSONS... i IL III. TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv IV. STATEMENT REGARDING ORAL ARGUMENT... 1 V. STATEMENT OF ISSUES... 1 VI. STATEMENT OF THE CASE... 1 VIL STATEMENT OF THE FACTS... 2 VIII. SUMMARY OF THE ARGUMENT IX. ARGUMENT X. CONCLUSION XI. CERTIFICATE OF SERVICE

5 TABLE OF AUTHORITIES STATE CASES Amiker v. Drugs For Less, Inc., 796 So. 2d 942 (Miss. 2001) Bang v. Pittman, 749 So. 2d 47 (Miss. 1999) State v. Baptist Mem. Hosp.-Golden Triangle, 726 So. 2d 554 (Miss. 1998)... 30, 32 State v. Bates, 187 Miss. 172, 192 So. 832 (1940) Bd. oftrs. of St. Insts. of Higher Learning v. Ray, 809 So. 2d 627 (Miss. 2002) Bowman v. Ferrell, 627 So. 2d 335, 339 (Miss. 1993) Birindelli v. Egelston, 404 So. 2d 322 (Miss.1981) Board of Trustees v. Miss. Public Co1p., 478 So. 2d 269 (Miss. 1985) In re Brantley v. Brantley, 865 So. 2d 1126 (Miss.2004) Brooks v. Roberts, 882 So. 2d 229 (Miss. 2004) Brumfieldv. Lowe, 744 So. 2d 383 (Miss. Ct. App.1999) Bryant v. Bryant, 924 So. 2d 627 (Miss. App. 2006)... 37, 38 Bryant, Inc. v. Walters, 493 So. 2d 933 (Miss. 1986) Bush v. State, 585 So. 2d 1262, 1991 Miss. LEXIS 589 (Miss. 1991) Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988) Century 21 Deep Southern Properties, LTD. v. Corson, 612 So. 2d 359 (Miss. 1992) Champluvier v. State, 942 So. 2d 172, 179, ii 24 (Miss. App. 2005) Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So. 2d 1041 (Miss. 2007)5,37 Clark v. Clark, 43 So. 3d 496 (Miss. Ct. App. 2010) Collom v. Senholtz, 767 So. 2d 215 (Miss. Ct. App. 2000) IV

6 Cooper v. Estate of Gatwood, 119 So. 3d (Miss. 2013) Crowell v. Butts, 153 So. 3d (Miss. 2014) Davis v. Miss. Board of Certified Court Reporters, 126 So. 3d (Miss. Ct. App.2013)... 40,42 Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So. 2d 826 (Miss. 2008) Ducey v. Ducey, 424 N.J. Super. 68 (App. Div. 2012) Duvall v. Duvall, 224 Miss. 546, 80 So. 2d 752 (1955) East Miss. State Hospital v. Adams, 947 So. 2d 887 (Miss. 2007)... 38, 40 Entergy Miss., Inc. v. State, 132 So. 3d (Miss. 2014)... 15,30,31 Estate ex rel. Campbell v. Calhoun Health Servs., 66 So. 3d 129 (Miss. 2011) Henry v. State, 87 Miss. 1 (Miss. 1905) In re Estate of Ladner v. Ladner, 909 So. 2d 1051(Miss.2004) In re Estate of Lewis, 45 So. 3d (Miss. Ct. App. 2010) In re Estate of Stewart 732 So. 2d 255 (Miss. 1999) FSC Sec. Corporation v. McCormack, 630 So. 2d 979 (Miss.1994) Farris v. State, 764 So. 2d 411 (Miss. 2000)... 32, 45, 48 In re Hampton, 919 So. 2d 949 (Miss. 2006) Harrison Cnty. Development Comm. v. Kinney, 920 So. 2d 497 (Miss. App. 2006) Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224 (Miss. 2005) Heard v. Remy, 937 So. 2d 939 (Miss. 2006) Hobbs v. Wash. State Auditor's Office, 183 Wash. App. 925, 335 P.3d 1004(2014) In re Hines, 978 So. 2d 1275 (Miss. 2008)... 34, 37 Ex parte Jones Cnty. Grand Jury, First Jud Dist., 705 So. 2d 1308 (Miss. 1997)... 29, 31 v

7 Jones v. Miss. State Univ., 948 So. 2d 509 (Miss. Ct. App. 2007)... 38, 40 Joshua Properties LLC v. DJ Sports Holdings LLC, 130 So. 3d 1089 (Miss. 2014) Kircher v. State, 753 So. 2d 1017 (Miss. 1999) Kolikas v. Kolikas, 821 So. 2d 874 (Miss.Ct.App. 2002) Kyle v. Perrilloux, 868 So. 2d 27 (La. App. 1 Cir 11/07 /03) L. W v. C. WB.,762 So. 2d 323 (Miss.2000) Leaf River Forest Prods. v. Deakle, 661 So. 2d 188 (Miss. 1995) Lewis v. Forest Family Practice Clinic, P.A.,124 So. 3d (Miss.2013) Lombardi v. Masso, 207 N.J. 517 (N.J. 2011) Lucas v. Bap. Mem. Hospital -N Miss., Inc., 997 So. 2d 226 (Miss. App. 2008)... 41, 42 Lundquist v. Todd Const., LLC, 75 So. 3d (Miss. Ct. App. 2011) Mabry v. Howington, 569 So. 2d 1165 (Miss. 1990) Mansour v. Charmax Indus., Inc., 680 So. 2d 852 (Miss. 1996)... 40, 47 McNeese v. McNeese, 119 So. 3d (Miss. 2013) Miss. Dep't of Human Servs. v. Shelby, 802 So. 2d 89 (Miss. 2001) Miss. Department of Rev. v. Pikco Fin., Incorporated, 97 So. 3d (Miss. 2012) Mississippi Pub. C01p. v. Coleman, 515 So. 2d 1163 (Miss. 1987) Mitchell v Mitchell, 767 So (Miss. Ct. App. 2000) Morrison v. Miss. Dep't of Human Servs., 863 So. 2d 948 (Miss. 2004)... 15, 40 Natchez v. Craig, 191 Miss. 567 (Miss.1941) Newell v. Hinton, 556 So.2d 1037 (Miss. 1990) Nichols v. Patterson, 678 So. 2d 673 (Miss. 1996) , 43 VI

8 Oktibbeha Cnty. Hosp. v. Miss. State Dep't of Health, 956 So. 2d 207 (Miss. 2007) Owens v. Mai, 891 So. 2d 220 (Miss. 2005) Pearson v. Browning, 106 So. 3d (Miss. App. 2012)... 9,17,34 Powell v. Powell, 644 So. 2d 269 (Miss. 1994) Price v. Clark, 21 So. 3d (Miss. 2009) , 46 Public Emp. Ret. Sys. of Miss. v. Dillon, 538 So.2d 327 (Miss. 1989) Roberts v. Roberts, 866 So. 2d 474 (Miss. Ct. App. 2003) Rose v. Tullos, 994 So. 2d 734 (Miss. 2008) Sanghi v. Sanghi, 759 So. 2d 1250 (Miss. App. 2000) Scruggs v. Board ofsuv'rs. Alcorn Cnty. Comm 'rs, 85 So. 3d (Miss. App. 2012) Scruggs v. Saterfiel, 693 So. 2d 924 (Miss. 1997) Shaver v. Blackwell, 43 So. 3d (Miss. Ct. App. 2010) Singing River Elec. Power Ass 'n v. State ex rel. Miss. Dep 't. of Env. Quality, 693 So. 2d 368 (Miss. 1997) Soriano v. Gillespie, 857 So. 2d 64 (Miss. Ct. App. 2003) In re Spencer, 985 So. 2d 330 (Miss. 2008)... 36, 37 St. Dominic Mem. Hosp. v. Miss. State Dep 't of Health, 728 So. 2d (Miss. 1998) Standifer v. Boren, 111 So. 3d (Miss. Ct. App. 2013) State ex rel. Allain, 418 So. 2d 779 (Miss 1982) State ex rel. Rice v. Stewart, 184 Miss. 202 (Miss.1938) Stauffer v. Stauffer, 379 So.2d 922 (Miss. 1980) Stewartv. Merchs. Nat. Bank, 700 So. 2d 255 (Miss. 1997) Vll

9 Tallahatchie Gen. Hosp. v. Howe, 154 So. 3d (Miss. 2015) Thomas v. Warden, 999 So. 2d 842 (Miss. 2008) Turner v. Deutsche Bank Nat. Trust Co., 65 So. 3d (Miss. App. 2011) Walton v. Walton, 44 So. 3d 1035 (Miss. Ct. App. 2010) Watters v. Stripling, 675 So. 2d 1242 (Miss.1996) Young v. Deaton, 766 So.2d 819 (Miss. Ct. App. 2000) Young v. Sherrod, 919 So. 2d 145 (Miss. Ct. App.2005) STATE STATUTES Miss. Code Ann , 44 Miss. Code Ann FEDERAL CASES Amy v. City of Watertown, 130 U.S. 301 (1889) Baskin v. United States, 135 F.3d Knight v. State of Kansas, 1990 US. Dist. LEXIS (D. Kan. Sept. 6, 1990) Oltremari by McDaniel v. Kansas Social and Reh. Ser., 871 F. Supp (D. Kan. 1994) Pettersson v. United States, 2003 U.S. Dist. LEXIS 3943 (N.D. Tex. 2003) Rutlandv. Office of Attorney General., State of Miss., 851 F. Supp. 793 (S.D. Miss. 1994), affd sub. nom., Rutland v. Moore, 54 F.3d 226 (5th Cir. 1995) State of Texas v. United States Steel Corp., 546 F.2d 626 (5th Cir.), cert. denied, 434 U.S. 889, 98 S. Ct. 262, 54 L. Ed. 2d 174 (1977) United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) United States v. Walker, 2013 U.S. Dist. LEXIS (S.D. Miss. 2013) Yazoo and M v. R. Co. v. Clarksdale, 257 U.S. 10 (U.S. 1921) vm

10 STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested. STATEMENT OF ISSUES 1. Prior to 1/8/13, the date that the MDA served a facially valid Harrison County grand jury subpoena on the DMR for the same records sought by GP, did DMR or the DMR Attorneys violate the Mississippi Public Records Act, codified at Miss. Code Ann et seq. ("MPRA"). 2. After having been served with grand jury subpoenas on 1/8/13 and 119/13, and after agents of the MDA physically removed all relevant original documents from the possession of the DMR, did the DMR or the DMR attorneys violate the MPRA or the Mississippi Litigation Accountability Act, Miss. Code Ann , et seq. ("MLAA")? 3 Did the trial court, on it's own sua sponte motion, without notice or affording the DMR Appellants an opportunity to be heard, erroneously recant its MPRA rulings in favor ofdmr in order to sanction DMR, under the MLAA for conduct which did not unduly multiply or prolong the proceedings, and which the trial court eitoneously ruled upon? 4. Did the Trial Court wrongly deny the DMR Appellants' M.R.Civ.P. 59(e) Motion? STATEMENT OF THE CASE Appellants, the Miss. Dep't. of Marine Resources ("DMR") and two Special Assistant Attorneys General ("SAAGs") Joseph A. Runnels, Jr. ("Mr. Runnels") and Sandra Chesnut ("Ms. Chesnut"), who jointly served as DMR's in-house and trial counsel below ("hereafter, the DMR Attorneys") (Collectively, "the DMR Appellants") seek review and reversal of a Final Judgment finding them and other appellants in violation of MPRA and MLAA for allegedly failing to produce 1

11 public records requested by the sole Appellee, GP, a newspaper publisher. Other independently represented Appellants are the Attorney General of Mississippi, the Hon. Jim Hood, and certain of his staff attorneys (collectively, "the Atty. Gen."), the Mississippi Department of Audit ("MDA"), the State Auditor, the Hon. Stacy Pickering ("the Auditor") and certain MDA staff attorneys, including Melissa Patterson ("MDA Attorney Patterson") (collectively, "MDA"). STATEMENT OF FACTS Beginning in May 2012, the U.S. Dep't. of the Interior, Dep't. of Defense, Dep't. of Commerce, the US Atty.'s Office and MDA, commenced simultaneous multi-faceted multijurisdictional investigations targeting former DMR director William "Bill" Walker and others for suspected misappropriation of Federal and State funding and assets of DMR. MDA simultaneously issued civil demands totaling more than $1 million. Walker and others were indicted by federal and state grand juries on or about 11/5/13, 1 and ultimately, successfully prosecuted. 2 Prior to 1/16/13, DMRreceived and diligently complied with numerous MPRA requests from 1 See Appendix 1 (FBI press release dated 11/7 /13 announcing indictments) 2 DMR terminated Bill Walker in January2013. In February 2014, Bill pled guilty to conspiring with his son, Scott, and a former DMR manager, Tina Shumate, to defraud the federal government by spending $210,000 in federal money granted through DMR on property Scott Walker owned. In exchange for Bill's guilty plea, other Federal charges against him for fraud, stemming from a land transaction; a conspiracy to commit mail fraud and two counts of mail fraud conunitted from November 2006 to July 2013 with Scott and former DMR Chief of Staff Joe Ziegler were dropped. Bill was ordered to pay $572,589 in restitution and sentenced to 5 years in prison. Scott pled guilty in July 2014 to schemes to defraud DMR and the City of D'Iberville, Mississippi. He was sentenced to 18 months and ordered to pay-jointly with others-$390,000 in restitution to the National Park Service, NOAA and the City of D'Iberville. In August 2014, Ziegler pled guilty to concealing a felony and was sentenced to 3 years probation and ordered to pay back $184, That same month, Shumate pled guilty to state embezzlement charges. She was ordered to pay $14,000 in restitution and sentenced to 2 years. 2

12 GP. 3 This appeal involves disputes relating to two of GP's requests for access to approximately 22,000 pages ofdmr business records relating to transactions participated in by Walker and other criminal defendants. 4 The same records GP sought were constructively seized on Tuesday, 1/8/13 by a Harrison County Mississippi grand jury subpoena duces tecum, Tr. Ex. 7, REO , instructing DMR, with emphasis added, as follows: For the time period from July 1, 2008 through December 31, for all records requested, any and all electronic data associated with the aforementioned accounts that may be stored or contained within any data storage device to include, but not limited to, any file server, tape backup, off-site backup and storage device, electronic data transmission, "cloud" or "virtual" data storage or transmission media repository, any optical storage device, RAM or ROM device, peripheral storage device. This includes anv replication or duplication ofthe aforementioned data in anv physical form or transmission ofthe data in anv manner through conventional or anv other means. The data is to be "retained in-place" and shall be accessible upon demand by agents o[the Mississippi Office ofthe State Auditor and shall be released to no entity other than the Mississippi Office of the State Auditor. All data must be retained in its original form. Department of Marine Resources personnel may only access, but not delete or destroy, the aforementioned data for the purpose of conducting business necessary that have a direct necessity for the purpose of daily operations of the Mississippi Department of Marine Resources. This subpoena duces tecum may be satisfied by mailing or delivering a certified copy of said records to Special Agent Chris Loft, Office of the State Auditor, P. 0. Box 16088, Hattiesburg, MS 39404, on or before the 28th day of January, CP-6:804, if 2. These abbreviations refer to the 6,volume Transcript as "TR" and the 8 volume Clerk's Papers as "CP." TR abbreviations are followed by numbers separated by colons pinpointing, respectively the volume, page, and lines, as in this example. Transcript Exhibits, are referenced as "Ex.," followed by the exhibit number. CP references are to volume, page and where appropriate, paragraph number, e.g. CP-1: 24-25, "RE" references con-esponding record excerpt page numbers. 4 A sworn chronological documented history by Appellant Chesnut of both requests and DMR's numerous responses thereto up to 1/8/13 appears at CP-6: , RE013 l-0135, if if's 3-4land Ex's 1-37 thereto. Effmis made by the DMR Appellants to fmiher comply with GP' s requests in question are frniher documentedatcp-6:808, if 42 through CP-6:826, if 173 andex's thereto.a similar sworn chronology by Appellant Runnels detailing his activity as DMR' s trial counsel appears at CP-6: , REO The second subpoena executed on 1/9Il3 is identical to the first except that it covers a longer seven year time period from 1/1/2005 through 12/31/12. TR Ex. 8, RE

13 On 1/9/13, DMRpromptlynotified GP in writing, 6 permiss. Code Ann ,7thatithad been served the day before with grand jury subpoenas precluding further production of the records requested by GP. MDA unexpectedly seized and removed DMR' s original records responsive to the subpoenas from DMR's offices on 1/15/13. 8 The seized DMR records thereafter retained in the exclusive possession of the Auditor, MDA and others. Nearly all D MR records being sought by GP and MD A were electronically created and stored, but a relative few items were unduplicated paper originals. 9 Typically, these were small and/or irregularly shaped cash register receipts, credit card charge slips, or the like, usually stapled or clipped as audit support for other documents such as expense reimbursement requests. These items never existed as a single existing paper or electronic public record. Instead, they were arrayed throughout the records in question and were never customarily computerized, copied or duplicated when generated in the ordinary course ofdmr 's agency business during the years before any indictments or investigations CP-6:808, if 43, RE0135, and Ex. 40, RE In pertinent part, that section reads: "(3) Denial by a public body of a request for access to or copies of public records under this chapter shall be in writing and shall contain a statement of the specific exemption relied upon by the public body for the denial." Miss. Code Ann (3). 8 CP-6:707, if 5 through CP-6:707, if 9 and CP-6:810, if if's 57-58, RE0107 and RE The uncopied originals were stored while in D:MR's custody in 2 filing cabinets plus 38 boxes. After the seizure, they were transferred by others into a total of 60 boxes. The total number of uncopied originals scattered throughout those 60 boxes were estimated to fill approximately 2 1h to 3 boxes. The number of documents and exactly which documents were ultimately copied by the Court at GP' s request is unknown to DMR. 10 As explained by Appellant Runnels at TR-2:268-69, REO , in response to the Chancellor's question "How was it that certain sets of documents were not copied?," whether or not documents were scanned in the ordinary course of DMR's business depended on upon the type of document. The examples he give were documents involving travel such as "little pieces of the credit card receipt or some other instrument to show some travel, may be a taxicab receipt, whatever it may be, from a restaurant, and all those 4

14 In an effort to comply with GP' s requests, MDA and DMR 11 voluntarily and jointly secured a 1/22/13 Protective Order from the Circuit Court of Harrison County substantively reading: The Court finds that the January 9, 2013 subpoena duces tecum prohibits DMRR from complying with Mississippi Public Records Act of 1983, Miss. Code Ann , et seq....it is hereby ORDERED that the terms of the January 9, 2013, subpoena duces tecum are modified to permit DMR to comply with the Mississippi Public Records Act of 1983, Miss. Code Ann , et seq. Specifically, DMR is not prohibited from releasing otherwise public records in its possession pursuant to the Public Records Act even if that same record is subject to the subpoena. TR-Ex. 1 (emphasis added), REOl 70. Pursuant to the Protective Order, DMR, during the next two days, collected all electronically stored records described in GP's MPRA requests which were still in DMRR's possession, electronically translated some of the records from a proprietary electronic format to a format readable by GP, 12 and copied the results to a DVD-R, which was promptly produced by DMR. 13 On 1/16/13, GP filed the first of two MPRAactions belowagainstdmr butnotmdaorthe Auditor even though GP knew by then that the requested records were in the exclusive possession of MDA and the auditor. 14 That case was not properly commenced within 120 days after 1/16/13 because GP only served process on former interim DMR Director, Daniel Guice, Jr. and not the Atty. Gen., things were not electronically scanned. They would have to be put on a piece of paper and then scanned in for the Department to make an electronic copy... They don't normally do that... [T]here is multi-years of files involving travel that would be scattered throughout these 3 8 boxes in those two file cabinets... " (emphasis added). At TR-2:276:15-29, MDA counsel and MDA Agent Lott further explained that the previously uncopied DMR original records were not arranged in any other way by the Auditor or any other investigative body or agency and that they were still in the original form that they were taken from the DMR. 11 CP-6:707,if11 to CP-6:708, RE , if 15 and CP-6:812, if if 70-71, RE CP-6: , if if's 84 and 88, RE , and Ex.'s 73 and CP-6:812, if 74 to CP-6: 815, if 94, RE CP-6:707, if if's 7-10, RE0160, and CP-6:808, if 42 to CP-6:810-11, if 60, RE

15 as required by M. R. Civ. P 4( d). 15 DMR answered, asserting both a Rule 4( d) defense and the failure to join necessary parties, MDA and the Auditor. 16 An expedited trial was conducted on 4/23/13. At the onset of the hearing, the Chancellor denied DMR's timely M.R.Civ.P. 4(d)/12(d) motion to dismiss, concluding that the Atty. Gen. had waived service of process through the actions of Appellants Patterson and Runnels. However, when GP rested its case, DMR' s M.R.Civ.P. 41 (b) motion to dismiss was granted based on a correct finding that due to the MD A's seizure of its original records, DMR had already produced copies of every record it was able to produce. 17 This is why DMR had no reason to put on no proof in its defense at the first trial. The Chancellor invited GP to file a motion to amend its complaint to add MDA and the Auditor as defendants. Despite committing to do so do so, GP failed to do so for nearly four months. By then, Rule 4(d)'s 120-day limit for serving DMR through the Atty. Gen. had lapsed on 5/16/13. After GP finally filed its motion to "amend" on 8/16/13, the Chancellor signed a 9/10/13 ex parte order, CP-1:82, prepared by GP's counsel, correctly acknowledging the dismissal of the first case against DMR on 4/23/13, but allowing the requested "amendment." GP's "Second Amended Complaint," CP-1 :70 et seq., was thus filed as a separate cause of action against DMR, the Auditor and MDA. The complaint correctly acknowledges that DMR voluntarily furnished the DVD-R containing the electronically stored records (at i! V); that MDA seized the requested DMR records, 15 Rule 4 ( d)( 5) of Mississippi Rules of Civil Procedure identifies DMR' s exclusive statutory agent: "( d) Summons and Complaint: Person to Be Served. The smmnons and complaint shall be served together. Service by sheriff or process server shall be made as follows: (5) Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi." 16 CP-1:24-25, RE TR-1:81:28 through 1:94:20, RE

16 and that MDA and the Auditor, but not DMR, thereafter exclusively denied GP access to the requested DMR records. (if VI). GP nowhere alleged that it submitted any new MPRA request to MDA, DMR or the Auditor. GP's proof at the second trial on 10/ targeted the Auditor and MDA, who remained in exclusive possession DMR' s records. MDA' s Special Agent Christopher Lott testified on 10/30/13 in the Proceedings under Seal. 18 During the Proceedings under Seal 19 and at the conclusion of that trial, 20 the Chancellor confirmed no less than seven times on the record that DMR had not violated MP RA! Thus, DMR again had no reason to put on proof in its defense. On 11/4/13, before any formal order reflecting the Court's final ruling in the second trial was entered, MDA and the Auditor, but not DMR, were served with a federal court grandjury subpoena commanding them to turn over DMR's records. The federal subpoena was returnable to the federal grand jury in Jackson, Mississippi on 1115/13. At 11 :30 PM on 1114/13, the Chancellor electronically filed an order granting GP's ore tenus Emergency Motion asking the Court to seize DMR's records from the Auditor and MDA and to surrender them to the Chancery Court of Harrison County for copying and Bates stamping under the supervision of the Court. MDA and the Auditor chose instead 18 At TR-6: , Investigator Lott confinned that MDA's investigation started in May Thirteen defendants were then under investigation by ten agents of the Auditor's office, plus agents of the FBI and Office of Inspector Gen. representatives from the US Department of Interior, Defense Department, Corps of Engineers and the Department of Commerce. The District Attorney's Offices for Han-ison, Hancock and Jackson Counties were also participating. The subpoenas served on DMR were among 25 state and federal investigative subpoenas served up to that point. TR-6: The DMR records were important because they showed what DMR public funds were misspent or were used for personal gain by fonner DMR representatives. The seized DMR records validated the investigations and were being used in the ongoing investigation. TR-6: TR-6: 190:14-18 and 192:9-15, REOl TR-3:304:2-5, 3:311:18-23, 3:312:7-10, 3:313:17-22 and 3:314:7-12, REOl

17 to comply with the federal subpoena and transported the records to Jackson, Mississippi where they were delivered into the exclusive custody of the US Atty.'s office on 11/5/13. No DMR representatives or attorneys were involved in, or even aware of these proceedings before the next day. The Chancellor personally contacted Atty. Gen. Jim Hood on 11/5/13. According to the Chancellor, he advised her to refrain from interfering with the federal grand jury proceedings. 21 That same day, the Chancellor, counsel for GP, DMR and MDA further conferred. The Chancellor accused the Auditor, acting in concert with the Federal Prosecutor, of being in direct criminal contempt of her 10/31/13 bench rulings and the protective order issued the previous evening. She advised that a hearing would shortly be held on these charges against the Auditor, but not DMR or the DMR Attorneys. DMR' s attorney, Mr. Runnels, confirmed on the record that he was unaware of the events giving rise to the Court's charges. 22 DMR's records remained in the exclusive custody and control of the United States Atty.'s office from 11/5/13 until 12/27/13. In the meantime, on 11/6/13, the State, acting through the Atty. Gen.'s office, intervened in GP's second case by filing a motion to stay all proceedings in the case pending resolution of a planned interlocutory appeal petition. On 11/8/13, MDA and the Auditor filed a motion to alter or amend the 11I4/13 Order directing MD A and the Auditor to return D MR' s records to the Chancery Court. That same day, MDA and the Auditor filed their interlocutory appeal petition. DMR and the DMR attorneys were not parties or participants in that appeal. On 11/16/13, The Chancellor issued an Order for Direction, CP-1, 132 et seq., inviting GP, at CP- 1:135, ~ 3, and again at CP-1: 140 (final paragraph) to file any "motions or citations of 21 Their conversation is referenced in, but is not part of the record. See TR-3: TR-3:333, REOl 78. 8

18 contempt, if it has any, forthwith or, in the alternative, inform the Court and the Defendants of its disinclination to bring any such motions or citations." (emphasis added). On 11/22/13, GP filed a motion to hold only MDA and the Auditor "in civil contempt and for attorney's fees and for related relief," 23 The "related relief' included "pursuant to Mississippi Code to impose $100 sanction for violation against Defendants Department of Audit and Auditor plus all reasonable expenses and attorneys fees incurred by GP [in] bringing this proceeding." 24 No 1~elief whatsoever was requested against the DMR or the DMR Attorneys. On 12/2/13, the Chancellor filed a trial judge's M.R.A.P. 5 statement with this Court in opposition to MD A's and the Auditor's interlocutory appeal petition. Therein, she stated again that DMR was unable to fully comply with Gu?f Publishing's records request once the Auditor seized DMR 's original records and that DMR did not violate MP RA. 25 The interlocutory appeal petition was denied on 12/4/13. The civil contempt hearing 26 on GP's motion against the Auditor and MDA took place on 12/5-6/13. Nothing in either day's testimony even suggested that DMR and the DMR Attorneys were involved in the contempt-related disputes which existed exclusively between the Court, GP, and the Auditor. At no time did the Chancellor indicate that she was considering any change in her prior repeated pronouncements that DMR had not violated MPRA. At the conclusion of the 11/6/13 23 CP-4:450, REOl CP-4:452, RE See Appendix "As defined by Black's Law Dictionary 360 (9th ed. 2009), civil contempt is the 'failure to obey a court order that was issued for another party's benefit.'" Pearson v. Browning, 106 So. 3d 845, 849 (Miss. App. 2012). 9

19 hearing, the Chancellor advised GP' s counsel that "you may provide your additional evidence you have on attorney's fees." 27 On 12/13/13, GP filed a memorandum, not a motion, 28 requesting a MPRA attorney's fees award against the Auditor, MDA, and, forfirsttime, DMR. 29 There, GP, for the first time, claims that DMR somehow violated MPRA and the Mississippi Archives and Records Management Law of 1981 ("MARM") either by not having backup copies of every record or alternatively, violating the "no copying" and no third-party disclosure restrictions in the grand jury subpoenas before the uncopied records were seized by MDA and the Auditor! On 12/20/13, the United States District Court for the Southern District of Mississippi granted GP's Petition to release the original paper records over objections by MDA and the US Atty.'s office in United States v. Walker, 2013 U.S. Dist. LEXIS (S.D. Miss. 2013). DMR did not oppose GP's Walker petition and did not participate in that case. At the Chancellor's direction, the records were delivered to the Chancery Court on 12/27/13 and placed in the custody of the Sheriff. The records remained there at all times until they were examined, marked by GP, redacted and copied by or under the Chancellor's supervision. The copies were then delivered by her to GP in mid-january On 5/24/14, MDA opposed DMR's motion to return its records, asserting that "the records in question have been in the custody and control of the Chancery Court of Hai.Tison County since on or about 12/20/13. During that time, the Chancery Court has allowed the Plaintiff, Gulf Publishing 27 CP-5: No motion seeking attorney's fees from DMR was ever filed by GP. 29 CP 4:

20 to review the records and mark certain documents that it wishes to make copies of..." 30 Three days later, on 5/27/14, the Chancellor entered her Final Judgment. Without notice or warning, the Chancellor recanted or asserted for the first time that all prior rulings in DMR's favor were "oversights" or mistakes, and that DMR and the DMR Attorneys had both violated MPRA and engaged in conduct which, in her opinion and again on her own previously unannounced motion, justified a MLAA attorney's fee award in GP' s favor against DMR. Surprised and aggrieved at this completely unanticipated reversal of the Court's previously favorable rulings and comments, Appellants filed a timely Rule 59( e) motion to alter, amend or vacate the rulings against them, or alternatively, for an opportunity to respond and make a record in their defense. The motion was summarily denied without notice and without a hearing. This appeal followed. SUMMARY OF ARGUMENT In all, GP made approximately 30 MPRA requests to DMR during the criminal investigation. DMR's response to only two of these requests is questioned. On 11/27/12, DMRnotified GP of the approximately $300 estimated cost of complying with the first of these requests originally submitted on 11/14/12. Had GP agreed to pay this $300 estimated cost at any time thereafter before the state grand jury subpoenas were served, the first group of the requested records would have been produced. However, GP failed to do so. The final MPRA request exhibited with GP's first complaint was received by DMR on 12/27/12, making DMR's response due under DMR's public records access policy by no later than 1/9/ Since the grand jury subpoenas were served on 1/8/13, they 3 CP-1:5. 31 By 1/9/13, DMR had received the grand jury subpoenas and advised GP in writing that DMR was precluded from further responding by the subpoenas. CP-6: , REO , and CP-7 :890, REO

21 precluded DMR from responding, as repeatedly found by the Chancellor and conceded by GP's counsel on multiple occasions prior to the Final Judgment. DMR thereafter never regained custody or control of the seized DMR records before GP ultimately obtained copies directly from the Chancery Court. The Chancellor dismissed GP's case in the first trial by finding, on the record, that: "I can't force DMR to turn over records that they no longer possess or have access to...," TR-1:94:9-11, RE0181. At the conclusion of trial of GP's second case, she consistently ruled and confirmed that "DMR did not violate the Public Records Act," TR-3 :314, REO 182; that "there has been no evidence presented to the Court that DMR has done anything other than an attempt to comply with a records request...," TR-3:304, REOl 73, and that "DMR... should... be given copies...[by] the Auditor to put the DMR in position to comply with the request." Thereafter, on 11/5/13, in response to GP' s motion to cite MDA and the Auditor for civil contempt, she found that: "the Auditor by acting in cooperation with the federal prosecutor is in direct contempt of my ruling..." and "[t]he Auditor is in contempt of this Court by removing the records from this jurisdiction and from control of the Court which it has maintained since the beginning of this litigation." TR-3:328, RE0184, and "the State Auditor is in direct contempt of this Court's orders." TR-3:331, RE0185. The Final Judgment's "about face" MPRA ruling against DMR on the Court's own motion violates the DMR Appellant's fundamental due process rights by expressly or implicitly recanting the favorable rulings quoted above, which are passed off as "oversights" or mistakes" by the Chancellor. The DMR Appellants were never given any notice or any opportunity to make a record in their defense refuting the Court's charges that they "acting independently or in conjunction with MDA and the Auditor," and violated MPRA by (a) not maintaining, or (b) violating the grand jury 12

22 subpoenas by creating electronic or other forms of copies of the uncopied DMR records. Furthermore, and again on the Court's own motion, and without prior notice to the DMR Appellants, the Final Judgment assesses $100 MPRA personal fines against the D MR Attorneys, and awards 100% of the attorney's fee award requested by GP only against MDA and the Auditor jointly against DMR and MDA, with no attempt at apportionment, even though DMR prevailed in the first trial. Even at the second trial, no evidence at all was presented showing the DMR Appellants violated MPRA. DMR never wrongfully denied GP's MPRA requests, or otherwise violated MPRA. After the Circuit Court lifted the restrictions imposed by the grand jury subpoenas, DMR complied with MPRA by collecting and producing an electronic copy of all DMR public records requested, which were still in its possession, which were either created and maintained electronically, or which had been copied in the ordinary course of DMR's of business prior to service of the subpoenas. DMR promptly advised GP of the service of both grandjury subpoenas. Prior to the Final Judgment, the Chancellor found repeatedly that the subpoenas gave DMR a legitimate reason for its inability to further comply with GP's requests. The communications between DMR or its attorneys and MDA and the Auditor from and after service of the subpoenas is permitted by MPRA. No evidence of any improper collusion by the DMR Appellants with third parties exists or is cited in the Final Judgment. MPRA and MARM: (a) do not require DMR to maintain electronic or other forms of copies of all original public records, or (b) compel DMR or its attorneys to disregard or violate restrictions in valid grand jury subpoenas, or ( c) mandate or obligate DMR to sue other state agencies or officials or interfere with ongoing legitimate criminal law enforcement investigations in order answer conflicting MPRA requests. GP never requested any relief under MLAA. Instead, the Chancellor, again on her own 13

23 motion, without prior notice to DMR, or affording DMR any opportunity to defend itself, jointly assessed 100% of GP' s requested attorney's fees in both cases against DMR and MDA in the Final Judgment. GP lost the first case against DMR on the merits. Losing parties are not entitled to MLAA relief. Parties who merely prevail are likewise not automatically entitled to MLAA relief. A Court's MLAA analysis must reach a legally substantiated conclusion that the action was without substantial justification or was interposed for delay or harassment. There are no such findings or evidence. GP' s first case wasn't properly commenced because the Att'y. Gen. was never served. The first case was properly dismissed because, as the Chancellor found for the second time, DMR could not produce records it no longer possessed. What the Final Judgment characterizes as unnecessary "legal maneuvers," actually refers to rulings by the Chancellor which were manifestly wrong as a matter of law, decisions on matters of first impression, or mischaracterizations ofdmr' s position which ignore the Court's favorable rulings quoted in part above. In short, there was no legitimate basis for any attorney's fee award against DMR under MPRA or MLAA, and no justification for subjecting the DMR attorneys to civil fines under circumstances where they did not violate MPRA's actual requirements. The DMR Appellants brought these issues to the attention of the Chancellor in a timely motion to alter or amend the Final Judgment pursuant to M. R. Civ. P. 59(e). That motion was denied without a hearing and without addressing or correcting numerous errors of law. 1. Standards of Review. ARGUMENT MPRA rulings of a chancellor will not be disturbed unless the findings are manifestly wrong, 14

24 clearly erroneous, or are the product of an application of an erroneous legal standard. Questions of law, 32 including issues relating to sufficiency of process, 33 subpoenas, 34 and jurisdictional issues, 35 and MLAA sanctions 36 are all reviewed de nova. 2. The MPRA Ruling against the DMR Appellants. MPRA appears at Miss. Code Ann through Effective March 5, 2010, the Mississippi Ethics Commission developed and adopted Model Public Records Rules 37 (the "Model Rules") to provide "best practices" for complying with MPRA. A public body has a duty to promptly provide access to all nonexempt existing public records. Miss. Code Ann A requestor has a duty to request identifiable existing records, inspect the assembled records or pay the actual costs of complying with the request. Miss. Code Ann and Certain records are exempted or privileged from production. Miss. Code Ann and 11.1, and 12, or other 32 See, Harrison Cnty. Dev. Comm'n v. Kinney, 920 So. 2d 497, 502 (Miss. App. 2006). 33 See Turner v. Deutsche BankNat'l Trust Co., 65 So. 3d 336, (Miss. App. 2011) Caldwell v. Caldwell, 533 So. 2d413, (Miss. l988);morrison v. Miss. Dep'tofHumanServs., 863 So. 2d948, 952 (ij13) (Miss. 2004); Soriano v. Gillespie, 857 So. 2d 64, (ij22)(miss. Ct. App. 2003). 34 Miss. Dep't of Rev. v. Pikco Fin., Inc., 97 So. 3d 1203, 1205 (Miss. 2012), reh'g den. (Oct. 4, 2012); Entergy Miss., Inc. v. State, 132 So. 3d 568, 572 (Miss. 2014). 35 Joshua Properties LLC v. DI Sports Holdings LLC, 130 So. 3d 1089, 1092 (ij8) (Miss. 2014) (citation omitted). 36 In re Estate of Ladner v. Ladner, 909 So. 2d 1051, 1055 (Miss. 2004)(citingAmikerv. Drugs For Less, Inc., 796 So. 2d 942, (Miss. 2001)) and Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis & Dove, 965 So. 2d 1041, 1045 (Miss. 2007)(noting conflict in applicable standards applied). 37 The model rules are published with comments. The comments have multiple-digit paragraph numbers which correspond to the single-digit model rule numbers. The comments ~re designed to explain the basis and rationale for the rules themselves as well as provide broader context and legal guidance. To do so, the comments may contain many citations to statutes, cases, and formal Ethics Commission opinions. The model rules, and the comments accompanying them, are advisory only and do not bind any public body. However, they are a useful starting point to fill in the gaps in the statutory scheme. 15

25 applicable provisions of state or federal law. Only a requester wrongly denied access to a non-exempt existing record may either file a complaint in Chancery Court 38 or after July 2014, with the Mississippi Ethics Commission. 39 MPRA must be read in conjunction with Miss. Code Ann et seq. ("MARM"). 40 GP's "motion" filed 11/22/13 only asked that MDA and the Auditor be: (a) held "in civil contempt"," CP-4:450; (b) assessed a $100 per violation MPRA fine, CP-4:450, and (c) required to pay "all reasonable expenses and attorneys fees incurred by GP [in] bringing this proceeding." 41 CP- 4:452. GP 's unamended MPRA motion requested no relief of any kind.from the DMR Appellants. On 12/13/13, a week after the 12/5-6/13 contempt hearing, GP filed a memo, not a motion, CP 4: , asking for a MPRA attorney's fee award request against DMR, based on the Chancellor's comment during the 11/5/13 hearing on the contempt "motion" against the Auditor and MDA, but not DMR, that "DMR didn't keep copies of all the documents in the first place [which is] at a minimum poor record keeping which has gotten us into the position we are in to begin with." CP- 2012). 38 See, e.g., Scruggs v. Bd. of Supervisors Alcorn Cnty. Comm'rs, 85 So. 3d 325, 328 (Miss. App. 39 Miss. Code Am and Among other things, MARM establishes the record management duties of state agencies and officials. Miss. Code Ann Those duties include a duty on the part of each agency to "establish and maintain an active and continuing program for the economical and efficient management of records" and to "cause to be made and preserved records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency or office and designed to famish the information necessary to protect the legal and financial rights of the Government and of the persons directly affected by the agency's activities." Miss. Code Ann (b) and (c)(emphasis added). 41 "[A]n award of attorney's fees in a contempt case is proper." In re Hampton, 919 So. 2d 949, 958 (Miss. 2006) quotingnewellv. Hinton, 556So.2d1037, 1043 (Miss. 1990) (citingstaid.ferv. Staid.fer, 379 So.2d 922, 924 (Miss. 1980))." 16

26 4:485 quoting TR-3:338:1-5, RE0187. The memo extrapolates this off the cuff remark into a "finding" that DMR's "not keeping copies of records it furnished to the Auditor was wrong" somehow violated MPRA and MARM by not "maintain[ing] either its original records or at least copies of them (rather than turning them over to the Auditor)..." CP-4: No proper MPRA fee award request against DMR was presented in this way because "a request for an order must be made in a written motion stating the relief sought and the grounds for such relief." 42 The "motion" relating to the memo only seeks fees from the Auditor and MDA and was never amended. CP-4 : That motion had already been argued before the memo was filed. 43 No subsequent hearing was ever set to consider any request against DMR. The memo's fee request, at CP-4:484, REOl 86, seeks compensation for all time spent preceding the dismissal of GP's first case, TR-1 :94:9-11, REO 181, even though that case was terminated in favor of DMR. The second case's ruling that "DMR did not violate the Public Records Act," TR-3:314, RE0182, is acknowledged, but GP argues that the Chancellor's "poor record keeping" comment negates that. CP- 4:485. The Final Judgment, at ii 76, ultimately finds that: "Defendant DMR and Defendant Auditor, acting together and independently, did willfully, knowingly and wrongfully deny GP' s public records request in violation of [MPRA] and are liable for attorney's fees, reasonable expenses and costs of this litigation. The individuals complicit in this denial are civilly liable for sanctions of $100 per violation pursuant to Miss Code Ann." CP-3:350, RE McNeese v. McNeese, 119 So. 3d 264, 271 (Miss. 2013)(citing Miss. R. Civ. P. 7(b)(l)). 43 The contempt motion was defective because it was improperly served pursuant to M. R. Civ. P. 5(b), and should have been a "petition" served with a summons as required bym. R. Civ. P. 81. See, Pearson v. Browning, 106 So. 3d 845, 849 (Miss. App. 2012). "[I]n Rule 81 matters, a Rule 81 summons must be issued; othe1wise, service is defective." Clark v. Clark, 43 So. 3d 496, 499 (if 12) (Miss. Ct. App. 2010). "Actual notice does not cure defective process." Id. 17

27 The Chancellor's "poor record keeping" comment is legally unfounded. The definition of "public record" includes all types of materials "regardless of physical form or characteristics." 44 Thus, MPRA "does not distinguish between paper and electronic records. Instead, the act explicitly includes all types of material within its coverage. " 45 Many public records are electronically maintained, but there is not, and never has been any requirement that all public records be kept electronically or backed up with paper or electronic copies, as the Chancellor erroneously thought. DMR never "wrongfully denied" any GP public records request. A "denial" of a MPRA request occurs when a public body: does not have the record; fails to respond to a request; claims an exemption of the entire record or a portion of it; or without justification, fails to provide the record. 46 At TR-1 :83-94, the Chancellor explained the "justification" to GP' s counsel when she granted DMR' s motion to dismiss GP's first case against DMR: "I can't force DMR to turn over records that they no longer possess or have access to, unless there's something that you [GP' s counsel] can show me that they do have access to them and just are refusing to comply." 47 GP attempted no such showing. Dismissals occur in bench trials at the conclusion of the plaintiffs case because there is no jury to direct. The Chancellor Properly thus dismissed GP' s first case. GP's complaint initiating the second case acknowledges the same "justificati<;m": At the conclusion of the hearing, Mississippi Department of Marine Resources moved to dismiss Gulf Publishing's Amended Complaint on the grounds that the State Auditor, Stacy Pickering and/or the Department of Audit was or were necessary parties since that office then 44 Miss. Code Ann (b). 45 Model Rule Model Rules, 4.4(4). (emphasis added). 47 TR1:94. 18

28 had custody and control of Gulf Publishing's requested documents. The court sustained that motion. CP 1:32, if VI (emphasis added), RE0189. However, the Final Judgment, at CP-4:544, RE0190 if 12 and RE0310, inconsistently states, for the first time, that GP's second complaint "mistakenly alleges that the Court had previously sustained DMR's motion to dismiss ahd motion for directed verdict on April 23, 2013, which it did not." (emphasis added). The 9/10/13 Order, prepared by Gulf Publishing's counsel, states otherwise: At the conclusion of the hearing on April 23, 2013 Defendant [DMR] moved to dismiss Plaintiffs complaint based upon the absence of a necessary party. After hearing oral argument, the Court granted the motion on the basis that some portion of the requested Mississippi Department of Marine Resources public records at issue are in the custody and control of the Mississippi State Auditor and/or the Mississippi Department of Audit. CP-1:82 (emphasis added), RE0191. Footnote 11 of the Final Judgment, CP-4:545, RE0045, inconsistently recants this ruling in DMR's favor without prior notice, saying only: "This Order, through oversight by the Court, also mistakenly states that the Court sustained Defendant DMR's motion to dismiss [motion for directed verdict]." (emphasis in original). Again, the record reflects otherwise. During the second trial's Sealed Proceedings, DMR's counsel, Mr. Runnels stated to be Chancellor: "if the DMR is still subject to being found in violation of [MPRA] for not producing records not in its control, then I need to call Ms. Chesnut to the stand." TR-6: 190:14-18, REOl 71. This prompted the Chancellor to ask GP's counsel: "[from] the first request to the date of the first subpoena, do you contend that the DMR failed to comply with your request at that time? GP's counsel replied: "No, not based on the fact that they had custody until January 15 of the records, and 19

29 after that they lost it." TR-6:192:9-15, REOl 72. This explains why DMR was excused by the Chancellor fi'om putting on any proof at the second trial, which is the same thing that happened at the first trial! Moreover, the Chancellor thereafter found, with emphasis added, at the conclusion of the second trial: "... there has been no evidence presented to the Court that DMR has done anything other than an attempt to comply with a records request..." TR-3:304:2-5, REOl 73. BY MR. RUNNELS (DMR counsel): "I don't think we were given any choice. We didn't choose not to copy any documents, we didn't choose to ask for a subpoena from the Grand Jury." THE COURT: I agree." TR-3:311:18-23, RE0174. THE COURT:... DMR... should... be given copies or somehow be given whatever they need to comply with the request....! believe that what I have the authority to do is require that the Auditor to put the DMR in position to comply with the request." TR-3:312:7-10, REOl 75. TO MS. PATTERSON (MDA counsel)... BY THE COURT: "My ruling is that because you [MDA] had possession of the documents that you are a necessary party and that you are now to place the DMR in a position to comply with the request. And that is my- that is my ruling...." TR-3:313:17-22, REOl 76. MR. RUNNELS (DMR Counsel): "I think I understand that the Court found that the DMR did not violate the Public Records Act." THE COURT: "I did I did. And that you were to be restored to the position that you can comply." TR-3:314:7-12, REOl 77. The Chancellor's subsequent on the record observations on 11/5/13, with emphasis added, also negates any "complicity" by the DMR Appellants in MDA' s unilateral decision to turn over the records to the US Atty. 's office in response to the Federal grand jury subpoena duces tecum: 20

30 "I have no choice at this time but to find that the Auditor by acting in cooperation with the federal prosecutor is in direct contempt of my ruling and my order oflast week on October 31st, and certainly in direct contempt of my protective order which I issued last night" and "The Auditor is in contempt of this Court by removing the records from this jurisdiction and from control of the Court which it has maintained since the beginning of this litigation." TR- 3:328:15-21and3:329: 5-9, RE0184. "...the State Auditor is in direct contempt of this Court's orders. Id, TR-3:331: 14-15, RE0185. During that same conference, the Chancellor summarized DMR's position as follows: "[t]he attorneys for DMR have expressed to the Court... that they are really not in position to file a motion pertaining to any ofthis because they don't have the records, and the Court found that they had not violated the Public Records Act." TR-3:333:1-9. (emphasis added), RE0185. A month later on 12/2/13, the Chancellor's confirmed again at page 5, il il's 3 and 4 of her M.R.A.P 5(b) statement to the Mississippi Supreme Court in reply to the Auditor's Interlocutory Appeal Petition and Motion to Stay in NO M SCT, that: "scattered randomly throughout the thousands of documents... there exist original records which DMR never copied... and therefore, DMR was unable to fully comply with a records request once the Auditor seized the original set of all the documents" and that "[t]he chancery court ultimately found that DMR did not violate the statute [i.e, MPRA]... "(emphasis added). 48 No attempt whatsoever is made in the Final Judgment to explain away this final statement totally exonerating the DMR Appellants. 48 A copy of the title page, page 5 and certificate of service of the Rule 5 (b) statement is attached as Appendix 2 to this brief. Thus even after the second trial, and the contempt proceedings against the Auditor, DMR received fmiher direct confinnation from the Chancellor that it had not violated :rvt:pra. 21

31 A judge violates due process by leading a party to believe that there is no need to present evidence or further evidence, and then changing his or her position without affording the misled party an opportunity to present his or her remaining proof. 49 The same thing is true when a judge is inclined to revisit and materially modify a prior interlocutory order. 50 Even though the Final Judgment recites, at CP 3:302, that "the Court expressly reserved the right to add to, alter, amend and/or revise her findings of fact and conclusions oflaw," this does not justify the Final Judgment's inconsistent "about face" MPRA rulings. The Chancellor had a due process duty to notify the DMR Appellants when she decided to reverse her prior rulings in favor of DMR. She should have identified exactly which rulings were under reconsideration, why this was so, and given the DMR Appellants an opportunity to persuade her not to change her prior rulings in their favor. Since that never happened, the rulings against the DMR Appellants fall outside the permissible scope of reasoned discretion. The "staff of the public body can only produce records which it can reasonably locate... [R]easonably locatable' is a concept for analyzing electronic records issues." Model Rule 5.2(1). "Reasonably translatable" is also a relevant concept here: 49 Bowman v. Ferrell, 627 So. 2d 335, 339 (Miss. 1993)("The Board violated Ferrell's right to due process by leading her to believe that there was no need to present further evidence and then by changing its position without affording her an opportunity present her remaining proof."). 50 Lombardi v. Masso, 207 N.J. 517, 537 (N.J. 2011). Where a judge enters a final judgment containing findings and conclusions inconsistent with the preliminary ruling, without an adequate explanation for the divergence, the trial judge's actions fall outside the pennissible scope of reasoned discretion. See, e.g., Ducey v. Ducey, 424 N.J. Super. 68, 76 (App. Div. 2012), which involved entry of a final judgment of divorce [JOD] that was followed by a written opinion stating findings and conclusions that materially differed from and abrogated, without explanation, substantive provisions of the judgment. Id. at 74, 77. The appellate com1 reversed and remanded for retrial before a different judge based on a finding that "[n]o matter the level of detail of the findings in the trial judge's written opinion, the absence of a full explanation of the perceived mistakes in the JOD warranting correction in the amended JOD, without notice or an opportunity to be heard, requires us to vacate the... the amended JOD." Id., at

32 "Reasonably translatable" electronic records... To provide a photocopy of a paper record, a public body must take some reasonable steps to mechanically translate the public body's original document into a useable copy for the requestor such as copying it in a copying machine... Providing an electronic copy is analogous to providing a paper record.... The "reasonably translatable" concept typically operates [where]... [a] public body has only a paper record;... [a] public body has an electronic record in a generally commercially available format (such as a Windows product)... When a public body only has a paper copy of a record, an example of a "reasonably translatable" copy would be scanning the record into an Adobe Acrobat PDF file and providing it to the requester.... [which is] is analogous to making a paper copy. Model Rule 5.2(2). DMR plainly complied with Model Rule 5.2(2) by translating the portion of its electronic records which were not readily readable by GP and producing the DVD-R which was a "electronic copy of an electronic record." The DVD-R produced was a new previously non-existing copy of existing electronic public records which had to be collected for the first time in one place and partially translated by DMR into a format usable by GP. 51 After the records were seized, DMR was not obligated by MPRA or otherwise to sue MDA or the Auditor or to interfere with the ongoing criminal investigations because "[a] public body is only required to provide access to public records it has in its possession or over which it has control. A public body is not required to create a public record in response to a request. A public body must only provide access to public records in existence 51 See CP-7:938. An example given in Model Rule 5.2(1) is instructive: "For example, a public body might keep a data base of permit holders including the name of the business. The public body does not separate the businesses by whether they are publicly traded corporations or not because it has no reason to do so. A request for the names of the businesses which are publicly traded is not "reasonably locatable" because the public body has no business purpose for keeping the information that way. In such a case, the public body should provide the names of the businesses (assuming they are not exempt from disclosure) and the requester can analyze the data base to detennine which businesses are publicly traded corporations." Thus, even thought DMR's electronically maintained records were not "reasonably locateable" by DMR prior to the seizure because they were not organized or maintained in the ordinaiy course ofdmr' s historic business activities in the fashion requested by GP and in some cases were compiled in a proprietary computer for my not readily readable by GP, DMR nevertheless went beyond what MPRA requires by producing the DVD-R. 23

33 at the time of the request." Model Rules, 4.4(4)(a). 52 Even before DMR's original records were seized, the uncopied original scattered among them were never "in existence" as one discrete public record. What GP always wanted was not just a copy of every DMR record seized by the Auditor, as assumed by the Chancellor prior to the end of the second trial. 53 Instead, as explained by GP's counsel, what his client wanted and expected since "back in January was that a law enforcement officer would preserve the chain of custody and integrity of the documents, bring them box by box into the room, let GP look at what it wanted and mark it, and DMR would copy it for us. And when that was done, the box would be brought back to the Auditor... " 54 He was thus describing the process for a discretionary creation of a completely new public record not previously in existence or in any form maintained by DMR, as described in Model Rule, 4.3(5): (5) No duty to create records. A public body is not obligated to create a new record to satisfy a records request. However, sometimes it is easier for a public body to create a record responsive to the request rather than collecting and making available voluminous records that contain small pieces of the information sought by the requestor or find itself in a controversy about whether the request requires the creation of a new record. The decision to create a new record is left to the discretion of the public body. If the public body is considering creating a new record instead of disclosing the underlying records, it should obtain the consent of the requestor to ensure that the requestor is not actually seeking the underlying records. Making an electronic copy of an electronic record is not "creating" a new record; instead. it is similar to copying a paper copy. Similarly, eliminating a field of an electronic record can be a method of redaction; it is similar to redacting portions of a paper record using a black pen or white-out tape to make it available for inspection or copying. Model Rules, 4.3(5)(emphasis added). The underscored sentence explains again why DMR's actual MPRA duty was fully satisfied 52 Appellant Joseph Runnels explained this concept to the Chancellor at TR-6:266:10-23, RE See: TR-2:274:28 through 275:2, RE TR-2:275:7-16, RE

34 by delivery of the DVD-R. Had DMR and GP agreed to create a completely new public record containing the seized uncopied originals, the first step in this discretionary process would have been: (6) Provide a reasonable estimate of the time to fully respond... Fully responding can mean processing the request (assembling records, redacting, preparing a withholding index, or notifying third parties named in the records who might seek an injunction against disclosure) or determining if the records are exempt from disclosure. An estimate should be reasonable... A public body should roughly calculate the time it will take to respond to the request and send estimates of varying lengths, as appropriate. There is no standard amount of time for fulfilling a request so reasonable estimates should vary. Model Rule, 4.3(6)(emphasis added). Prior to 1/16/13, DMR received numerous requests for disclosure of DMR public records from GP, which it diligently complied with. 55 GP's two MPRA record requests at issue are 11/14/12 (specifically Item #2 of this request) and 12/27112, respectively, and are reproduced as Ex.'s A and B to GP's Amended Complaint. 56 The 11/14 request listed four different items covering different categories of records. 57 The DMR provided a detailed itemized cost estimate on 11/27, 58 which was within the time allowed by MPRA. 59 Upon receipt of the cost estimate on 11/27, GP advised they only wanted to obtain copies 55 CP-6:804, if 2, RE CP-1:18-23, RE CP-6: 804, if3 & Ex. 1, RE013 l. 58 CP-6:805, if9 & Ex.6, RE The cost estimate also included 2 Items listed on a subsequent 11116/12 request which related to some of the same categories specified in the prior 11/14 request. On , GP provided clarification regardingthe overlapping requests. CP-6: , if4-7, RE , and Ex. 2 thereto, RE Following the Thanksgiving holidays (on 11/22/12 & 11/23/12), DMR provided the cost estimate on the following Tuesday (11/27112). The cost estimate specifically advised GP that DMR was providing only those records that remained in DMR's possession. CP 6: 805 ifl3, RE0132. Consequently, GP kn.ew as early as that DMR was no longer in possession oj all oj its records targeted by the criminal investigation which began on or about

35 of documents responsive to Item #3 of the request. 60 Accordingly, Item #2 of the 11/14 request which is at issue in this matter was abandoned by GP on 11/27/12. GP could have provided payment and obtained the remaining documents and specifically those related to Item# 2 of the 11/14/12 request at issue herein, at any time between 11/27/12 (when DMR provided the cost estimate) and 1/8/13 (when service of the grand jury subpoenas prohibited the D MR from providing the records to any other entity besides the MDA). In fact, GP made no effort to obtain these records until after DMR notified GP ofreceipt of the subpoenas specifically precluding production and/or inspection of the subject records. Even though DMR's timely and proper response to GP's request is documented in the record, it is nowhere discussed or analyzed in the Final Judgment or the Order overruling DMR's Rule 59(b) Motion. DMR' s response to the other 2/27 /12 request (the one seeking access to approximately 22,000 pages of unredacted DMR records) was not yet due when the grand jury subpoenas were served, 61 aborting the Model Rule 4.3( 6) process. Even absent the subpoenas, DMR would not have been obligated, or from a practical or legal standpoint, in a position to create the completely new 60 0n 11/27/12, GP advised DMR via that the Sun Herald wanted only to proceed with Item #2 of the 11/16/12 request. CP-6:805, RE 0132 and Ex. 7 thereto, RE 156. On 11/28/12, DMR ed GP and advised that DMR staff were preparing the documents responsive to Item #2 of the 11/16112 request and requested clarification that GP was not requesting documents responsive to the other items in either of the requests dated 11/14/12 and 11/16/12, which would include Item #2 of the 11/14112 request which is at issue in the matter. CP-6:805ifl1, RE 0132, CP-6:805-6; CP-6, 848, Ex. 8, RE 157. On 11/28/12, GP ed DMR advising "that is where we are starting." CP 6:805 ifl2, RE See CP-6:808, if if's 36-41, RE0135. As documented in if 41 and Ex. 37, by 1/4/13, DMR had circulated GP' s 12/27 request to the appropriate DMR departments for processing and DMR advised GP that same day that it would provide an estimate of cost as soon as a response was received from DMR's departments. That was still where DMR stood in the process ofrespondingto the 12/27 request when served with the grand jury subpoenas on 1/8 and 1/9 (if if's 41-42). DMR's response to the second request was not yet due when the process was halted by service of the subpoenas because 12/27/12 fell on a Thursday. DMR was open for business the following day, 12/28/12, but closed for the New Year's holiday on 12/31/12 and 111/13. Thereafter, DMR was open on 1/2/13 through 1/4/13 and 1/7 through 1/9/13. 26

36 previously nonexistent public record requested by GP's second request before it could reasonably locate and copy the relatively few uncopied business records scattered among the 22,000 pages of requested records, 62 redact them, 63 and if needed, prepare a withholding index, 64 and then secure prepayment from GP of the cost doing all of this. 65 This process had only just begun when the subpoenas were served. GP had no right to unsupervised access to uncopied original records at any time. 66 The Chancellor concluded that because the subpoenas said DMR could respond to the grand jury's request with certified copies of the subpoenaed records, this somehow obligated DMR to: (a) 62 Copies are only required if the requestor seeks copies, in which case "the public body should notify him or her of the projected costs and whether a copying deposit is required before the copies will be made. The notification can be oral to provide the most timely possible response." Model Rule, 4.4(b)(5). 63 This would have required that at least two, and possibly three new sets copies of the originals be made. "Originals should not be redacted. For paper records, a public body should redact materials by first copying the record, and then either using a black marker on the copy or covering the exempt portions with copying tape, and then making a copy. It is often a good practice to keep the initial copies which were redacted in case there is a need to make additional copies for disclosure or to show what was redacted." Model Rules, 4.4(b )(I). Assuming that one agency retain the original redacted copies, a second set would have to have been made for GP, and the other agency would probably also wanted a copy. Thus, someone would have had to have made at least two or three sets of copies, for this reason alone. 64 "One way to properly provide a brief explanation of the withheld record or redaction is for the public body to provide a withholding index. It identifies the type of record, its date and number of pages, and the author or recipient of the record (unless their identity is exempt). The withholding index, another new record, need not be elaborate but should allow a requestor to make a threshold detennination of whether the public body has properly invoked the exemption." Model Rules, 4.4(b)(ii) See, CP-1 :50-53 and Miss. Code Ann (1) and (2) and Model Rules 8.4, 8.5, and 66 "A public body may have a public employee observe the inspection or copying ofrecords by the requestor to ensure they are not destroyed or disorganized. A requestor cannot alter, mark on, or destroy an original record during inspection. To select a paper record for copying during an inspection, a requestor must use a nonpennanent method such as a removable adhesive note or paper clip." Model Rules, 4.5(2). Here, MDA and the Auditor insisted that a MDA law enforcement staff member or sheriffs deputy be present at all times in order to maintain the criminal evidentiary chain of custody over the originals. 27

37 violate the secrecy and non-disclosure instructions in the same subpoenas by creating and producing the new non-existing record requested by GP between service of the subpoenas seizure of the records by MDA and the Auditor and/or (b) thereafter institute proceedings against MDA, the Auditor and others to compel the recovery ofits original records in order to comply with GP's request. The Chancellor's first premise overlooks that the subpoenas say only that DMR "may" satisfy the grand jury's request with certified copies, which is not a mandate to do so. 67 "Reproduction of records" by an agency or department is authorized, but not mandated by MARM, ''unless otherwise prohibited by law or withheld from reproduction in the public interest." 68 Violating the restri?tions on the grand jury subpoenas is conduct "prohibited by law," which is inconsistent with the public's interest in investigating and prosecuting crime, and would amount to "the unlawful divulging of restricted information under this chapter," which is also a misdemeanor. 69 The Chancellor's other erroneous premise overlooks that "[t]he grand juries of Mississippi specifically have been directed by statute to enforce the laws 'providing for the assessment, collection and disbursement of the public revenues, both state and county... "' 70 Here, the grand jury shared exactly the same duty as the Auditor. 71 Grand juries have "broad investigative power and wide latitude in conducting an 67 See, Tr. Ex. 7 (grand jury subpoena), RE Miss. Code Ann See, Miss. Code Ann Miss. Code Ann ). 71 See, Miss. Code Ann (g) and, e.g., Nichols v. Patterson, 678 So. 2d 673, 674 (Miss. 28

38 investigation... " 72 Grand jury subpoenas are not governed by U.R.C.C.C Even though it teclmicallydoesn'tapply, 74 the State Grand Jury Act, Miss. Code Ann , et seq.("sgja"), has been cited in prior analyses of ordinary grand jury proceedings, 75 In pertinent part it states the following: The clerk of the state grand jury, upon request of the Attorney General or his designee, shall issue... subpoenas duces tecum to compel...documents or other materials to be brought from. anywhere in the state... to a state grand jury... The subpoenas and subpoenas duces tecum m.ay be for investigative purposes and for the retention of documents or other materials so subpoenaed for proper criminal proceedings. Any...law enforcement officer with appropriate jurisdiction is em.po:wered to serve such... subpoenas duces tecum and receive such documents 1997)("Jones"). 72 Ex parte Jones County Grand Jury, First Judicial Dist., 705 So. 2d 1308, 1315 Ci1 32) (Miss. 73 See U.R.C.C.C. 2.0lA. 74 In ordinary non-sgja situations, district attorneys and the Att'y. Gen. have substantially the same prosecutorial powers. "Any district attorney may also institute and prosecute to final judgment or decree any case in the name of the state against any person... for any violation of... the laws of this state, in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district havingjurisdiction, with like effect as if the suit was instituted by the Attorney General." Miss. Code Ann Historically,"[t]he Attorney General shall, when required by the public service or when directed by the Governor, in writing, appear in person, or by any regular or specially designated assistant, to any county or district in the state and assist the district attorney there in the discharge of his duties and in any prosecution against a state officer..." Miss. Code Ann (emphasis added). See generally, Bush v. State, 585 So. 2d 1262, 1991 Miss. LEXIS 589 (Miss. 1991) and Williams v. State, _So. 3d_2014 Miss. LEXIS 599 (Miss. Dec. 11, 2014). However, since 1988, "[i]n addition to the authority granted in Section , Mississippi Code of 1972, the Attorney General shall prosecute, in person or by his designated staff attorney, criminal matters and cases investigated by him pursuant to the provisions of Section and he may request the services or assistance of any district attorney in and about such matters or suits," including "any type of white-collar crime violation or any other criminal conduct within their respective jurisdictions..." Miss. Code Ann The statute further provides: "In addition, a state grand jury may proceed in the same manner as is provided for by law in relation to the issuance of... subpoenas duces tecum; however, the provisions of such law shall not be considered a limitation upon this section, but shall be supplemental thereto." Miss. Code Ann (emphasis added). This may explain why the SGJA' s relevance in non-sgja contexts. See, e.g., Kircherv. State, 753 So. 2d 1017, 1028 (Miss. 1999)(Criminal defendant's argument rejected that the prosecutor's use of the grand jury subpoena duces tecum to obtain records from a state agency was abusive); Champluvierv. State, 942 So. 2d 172, 179, i124 (Miss. App. 2005) reversed on unrelated grounds, 942 So. 2d 145, 154 (Miss. 2006) (non-drug related embezzlement case). 29

39 and other materials for return to a state grand jury.[ 76 ] Any person violating a... subpoena duces tecum issued pursuant to this chapter.... may be punished by the impaneling judge for contempt provided the response is not privileged or otherwise protected by law... If the impaneling judge considers compliance is warranted, he may order compliance and may punish the individual for contempt, as provided in Section , where the compliance does not occur... [7 7 ] Miss. Code Ann The MDA and the grand jury became the lawful "custodians" ofdmr's public records in question as soon the grand jury subpoenas were served on DMR. 78 The Auditor and MDA are MPRA "law enforcement officials." The records in their possession after 1/8/13 were criminal evidence, "investigatory in nature and related to an open criminal investigation" and thus clearly part of MPRA exempt "investigative reports" from and after they were subpoenaed. 79 To succeed on a motion to quash a grand jury subpoena, the person or entity receiving it must overcome the presumption that 76 In ordinary grand jury context, see, e.g., Entergy Miss., Inc. v. State, 132 So. 3d 568, 577 (Miss. 2014) ("The lawfully constituted grand jury requested information that could assist it in dete1mining whether crimes had been committed so it could consider the return of true bills of indictment against offenders. In so doing, it was acting within its scope and authority as an ex parte investigative body."); State v. Baptist Mem'l Hosp.-Golden Triangle, 726 So. 2d 554, 560 (Miss. 1998)(lower court erred by quashing subpoena duces tecum and the search warrant requiring disclosure of the medical records as they pertained suspected crimes). 77 In ordinary grand jury context, see, e.g., State v. Bates, 187 Miss. 172, 192 So. 832 (1940)(The trial court sustained a motion to quash grand jury indictment based upon the self-incriminating evidence rule); Pacific, 705 So. 2d, 1313 ("An investigation by a grand jury, when directed by the court, involves all the powers and incidents necessary to complete inquiry into the subject matter in charge."). 78 Cf Hobbs v. Wash. State Auditor's Office, 183 Wash. App. 925, 335 P.3d 1004(2014)(State Auditor became custodian of public records of state agency under auditor's investigation for Washington state public records access purposes); Kyle v. Perrilloux, 868 So. 2d 27, 32 (La. App. 1 Cir 11/07 /03)(Legislative auditor and district attorney in possession of public records relating to joint investigative audit of parish clerk of court under the Louisiana public records act). 79 See, e.g., MEC Public Records Opinion No. R (October11, 2013) (Property and evidence seized by DeSoto County Sheriff's Office in the course of a criminal investigation were pait of an "investigative report" properly withheld by requesting owner pursuant to Miss. Code Ann (f)(I), (ii), (iii), (iv) and (viii)), attached as Appendix 3 to this brief. 30

40 the grand jury was acting within its lawful authority by showing that the information requested in the subpoena had no possible relevance to a legitimate investigation. 80 This is a exceedingly difficult since "[t]he law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority. " 81 Such improper interference by DMR would "saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws," 82 and conflict with "the longstanding principle that the public has a right to every man's evidence, except for those persons protected by a constitutional, common law, or statutory privilege, is particularly applicable to grandjury proceedings." 83 Sanctioning DMR in this context was an abuse of discretion. The Final Judgment, at i!i!'s 42-44, RE , cites and superficially discusses MPRA's "investigative report" exception, Miss. Code. Ann (2)( a), 84 before finding that DMR and 80 In Entergy this court held that a trial court properly denied a public utility's motion to quash a grand jury subpoena because issuance of the subpoena was a lawful exercise of the grand jury's investigative authority, and the evidence was relevant to its investigation and had the potential to result in criminal indictments; when the grand jury seeks information relevant to a legitimate criminal investigation, and that information has the potential to support probable cause to indict, the grand jury should not be hindered. 81 Jones, 705 So. 2d, 1315 (if 32). 82 Entergy, 132 So. 3d, 574 quoting United States v. Dionisio, 410 U.S. 1, 17, 93 S. Ct. 764, 773, 35 L. Ed. 2d 67 (1973). 83 Entergy, 132 So. 3d, 575 quoting Dionisio, 410 U.S. at9 (internal quotations and citations omitted). 84 Miss. Code Ann (g) defines "Law enforcement agency" to mean "a public body that perfonns as one (1) of its principal functions activities pertaining to the enforcement of criminal laws, the apprehension and investigation of criminal offenders, or the investigation of criminal activities." Because the Auditor and Grand Jury subpoenaed the records to facilitate an official audit of DMR's public expenditures, they both clearly meet the definition of "law enforcement agency" in this context. See, Miss. Code Ann (g)(Auditor's investigatory authority); Miss. Code Ann (3) (Grand Jury subpoena authority). 31

41 the DMR Attorneys lacked standing to invoke the "investigative report" exception, 85 and that "[ s ]imply citing the investigative report exception prior to seizure of records by the law enforcement agency (Auditor) was not sufficient for DMR to avoid its obligation provide public access to its records under the Act. Id. if 44 (emphasis by the Chancellor). "Chancery courts, under Article 6, Section 159, clearly do not have jurisdiction over criminal matters." 86 The fundamental right to personal privacy, for example, does not trump the public policy encouraging and expediting the detection, investigation, and solving of crimes. 87 The rights of the press and public to broad access to public records is undoubtedly important, but it seems logical that this right must similarly yield to the paramount public policy encouraging and expediting the detection, investigation, and solving of crimes committed by public officials. 88 The wording of the 85 An "investigative report" and an "incident report" are different things according to (e) and (f). An investigative report is far more comprehensive and includes "information beyond the scope of the matters contained in an incident report." A nonexclusive list of such "infonnation beyond the scope" of "incident reports" in "investigative reports" includes "records that are compiled in the process of detecting and investigating any unlawful activity or any alleged unlawful activity, the disclosure of which would harm the investigation... ;" "records that would disclose... results of investigative techniques;" "records that would prematurely release information that would impede the public body's enforcement, investigative or detection efforts" and "records that would impede or jeopardize a prosecutor's ability to prosecute the alleged offense." Miss. Code Ann (f)(i), (iii), (iv) and (viii). Obviously, from the moment the subpoenas were served, the uncopied originals were in the constructive possession of MDA and the Auditor are unquestionably "a law enforcement agency" and "law enforcement official" both entitled to invoke this exception. The Atty. Gen. is Mississippi's chief law-enforcement officer, Miss. Const. art. 6, 173; Miss. Code Ann The DMR Attorneys, by virtue of their position as SAAG's are likewise "law enforcement officials" who work for "a law enforcement agency." 86 Farris v. State, 764 So. 2d 411, (Miss. 2000). 87 State v. Baptist Mem'l Hosp.-Golden Triangle, 726 So. 2d 554, 561 (Miss. 1998). 88 See generally, Singing River Elec. Power Ass'n v. State ex rel. Miss. Dep't of Envtl. Quality, 693 So. 2d 368, 372 (Miss. 1997)(The trial properly court granted DEQ's motion to dismiss because the informants' identities were exempt from disclosure pursuant to Miss. Code Ann ( 1 )(ii). Protection of infonnants was important to insure the free flow of information about illegal activities that affected the environment). Cf. Mississippi Publishers C01p. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987)("The natural and praiseworthy desire of the press to inform the public about important criminal proceedings can 32

42 subpoenas themselves made it clear that DMRmust not, in the terminology ofmpra' s "investigative report" exemption, "impede or jeopardize a prosecutor's ability to prosecute the alleged offense" by "prematurely releasing information that would impede the public body's enforcement, investigative or detection efforts" or "disclosing... records that are compiled in the process of detecting and investigating unlawful or alleged unlawful activity, the disclosure of which would harm the investigation..." or reveal "results of investigative techniques." Thus, the DMR Appellants, clearly had sufficient arguable grounds to invoke the "investigative report" exemption to avoid MPRA liability. The fact that law enforcement officials, including the DMR and MDA SAAG's may have discussed their pending investigations or particular documents or otherwise officially cooperated among themselves is not "complicity." It is not unlawful either because Miss. Code Ann (2)(b) expressly states that"[ n] othing in this chapter [MPRA] shall be construed to prevent any and all public bodies from having among themselves a free flow of information for purposes of achieving a coordinated and effective detection and investigation of unlawful activity." This is obviously what the Auditor, the DMR Attorneys and their attorney counterparts at MDA and later, the Attorney General and the members of his staff were doing. They were not trying to cover up anything or hide anything. They were engaged in an ongoing criminal investigation which so far has resulted in multiple indictments and guilty pleas by many of the targets of that same investigation. The sealed testimony ofmda Special Agent Lott is not just "mere argument." He explained how the original paper records were primary evidence seized from DMR "directly related to an open criminal investigation," and why the premature disclosure of that information was rightly opposed. result in the publication of matter that can deprive a defendant of his right to a fair trial.") 33

43 Appellants Runnels and Chesnut did nothing which violated MPRA. The groundless MPRA fines were assessed to them by the Court on its own motion, without notice. These non-party DMR Attorneys should have "received the due-process consideration of official written notification commanding [their] presence in court." 89 A summons pursuant to M.R.Civ. P. 81 should have been, but was not issued by the Court to them. 90 "In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties." 91 The MPRA fine assessed against each DMR Attorneys is thus void. 92 Additionally, the final sentence of Miss. Code Ann (a) clearly differentiates these attorneys from DMR itself by stating that only the department, not its employees, possesses the duties imposed under the MPRA. When the judgment below was entered, MPRA did not allow fines to be imposed on state 89 In re Hines, 978 So. 2d 1275, 1279 (Miss. 2008) 90 A Rule 81 summons is not the same thing as a Rule 4 summons. See M.R.Civ.P. 4 and Pearson v. Browning, 106 So. 3d 845, 848, il 8 (Miss. Ct. App. 2012). "A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters." Id. citing Sanghi v. Sanghi, 759 So. 2d 1250, 1253 ( il ii's 11, 14) (Miss. App. 2000)(citing Leaf River Forest Prods. v. Deakle, 661 So. 2d 188, 194, 1995 Miss. LEXIS 455, 16 (Miss. 1995); Powell v. Powell, 644 So. 2d 269, (Miss. 1994)) and M.R.Civ.P Pearson, 106 So. 3d, 848, il 9 citing Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So. 2d 752, 755 (1955) and Roberts v. Roberts, 866 So. 2d 474, Cilil's 7-8) (Miss. Ct. App. 2003). 92 A "contempt" proceeding is among the "actions or matters listed in subparagraph (2)" under Rule 81 ( d)( 5). The contempt motion which GP was directed only at MDA and the Auditor. The "motion" which GP filed and never amended at the end of the case did not seek any sanctions against DMR. A "memorandum" is not a "pleading" or "motion." Even if all of this were not so, according to Pearson, "[ m] otions may be served by first-class mail. M.R.Civ.P.].P. 5(b ). The procedural mechanisms that apply to motions do not apply to contempt matters." Id., at il 18. A court order or court administrator's notice which fails to provide the notification required by Rule 81 does not pass muster, either. Pearson, at il

44 employee in their individual capacities. 93 The $100 fines are therefore manifestly contrary to law. 94 The decision to "revise" the 10/31/13 bench ruling in order to "find[] and conclude[] that the DMR violated [MPRA] by willfully denying the Plaintiff of its lawful right to inspect the public records," is not a mere "revision." It recants multiple prior rulings in favor ofdmr without notice. DMR' s "complete set of records" that the Chancellor mistakenly assumes did not exist was actually used by law enforcement to indict and secure guilty pleas from numerous wrongdoers. No statutory or reported cases recognize any duty of an agency to duplicate original records seized pursuant to a grand jury subpoena. Even without the subpoenas, there was no requirement for originals to be copied unless GP paid the cost of doing so, which it never claimed that it did. The DMR Appellants reasonably relied upon the Chancellor's statements and signed order consistently exonerating them from MPRA liability at all times prior to the Final Judgment. GP consistently acknowledged the dismissal of its MPRA claim against DMR, which was res judicata to any MPRA claim against DMR in the second case. GP didn't properly or timely request any MPRA attorney's fees awards or fines against the DMR Appellants. When the Chancellor decided otherwise, she should have notified the DMR Appellants of her change of position, issued a specification of what 93 At the time of the events giving rise to this litigation, the penalty for denial to any person of access to any public record which was not exempt was a $100 civil fine "plus all reasonable expenses incurred by such person bringing the proceeding." Miss. Code Ann A subsequent amendment, Laws, 2014, ch. 416, 2, effective from and after July 1, 2014, inserted "or who charges an unreasonable fee for providing a public record" and added "in his personal capacity." 94 The use of the undefined term "person" in Miss. Code Ann does not supersede or "trump" the express limited definition of"public body" in (a) which does not include the "public body's" employees. See generally, St. Dominic-Jackson Mem'l Hosp. v. Mississippi State Dep't of Health, 728 So. 2d 81, 84, 1998 Miss. LEXIS 505, 11, 1998 WL (Miss. 1998)(undefined terms in statutes are interpreted in a manner consistent with their generally accepted definition, but such interpretations must yield if inconsistent with statutorily defined tenns) and Board of Trustees v. Miss. Pub. C01p., 478 So. 2d 269, 278 (Miss. 1985). 35

45 MPRA relief she was considering, and afforded the DMR Appellants a hearing to make a record and reply. The failure to do so violated fundamental due process rights, so this aspect of the Final Judgment should be vacated. 95 If not, the DMR Appellants should be given an opportunity to defend themselves on remand. 2. The MLAA Ruling against the DMR. The MLAA provides in pertinent part: In any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed/or delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct... 'Miss. Code Ann S(a) (emphasis added). "The wording of the statute leaves no room for any alternative interpretation of the procedure to be utilized to seek attorney fees and costs." 96 A proper MLAA analysis must reach a legally substantiated conclusion that the action was without substantial justification or was interposed for delay or harassment. 97 '"Without substantial justification' is defined as any claim that is 'frivolous, groundless in fact or in law, or vexatious, as determined by the court.'" 98 The term "frivolous," for 95 Appellants Runnels and Chesnut filed supporting affidavits to their M.R. Civ.P. Rule 59 ( e) motion. CP-6:706 to CP-8:1039. These affidavits and supporting exhibits fully explain their actions and provide an excellent chronological account of the entire proceedings between DMR and GP both before and after the execution of the grand jury subpoenas and the seizing ofdmr's original paper records. It is this evidence that the DMR would have presented if its motion to dismiss had not been sustained on 4/23/13 or at any time afte1wards ifthe Chancellor had not consistently and repeatedly found that DMR had not violated MPRA. 96 Rose v. Tullos, 994 So. 2d 734, 737, if 13, 2008 Miss. LEXIS 573, 6 (Miss. 2008). 97 Id. 98 In re Spencer, 985 So. 2d at 338, if26 (quoting Miss. Code. Ann (a)). 36

46 purposes of both M.R.Civ.P. 11 and the MLAA, means "without hope of success." 99 The MLAA analysis in the Final Judgment ignores or misapplies these standards in virtually every finding. Winning a case is not enough because "[a] litigant must show something more than the fact that [it] prevailed in order to recover attorney's fees in most forms oflitigation." 100 "To deem a question of law 'frivolous, groundless in fact or in law, or vexatious' merely because there is no existing Mississippi law on the subject would have a chilling effect on all litigation involving questions of first impression." 101 Detailed review of the Chancellor's MLAA findings may be unnecessary because GP never asked for any MLAA fee award. The award was instead made on the Chancellor's own motion, without prior notice. It is thus void for lack of jurisdiction because it too was not preceded by any "due-process consideration of official written notification commanding [DMR' s] presence in court," to answer the Court's motion. 102 However, assuming arguendo that the DMR Appellants had been given prior notice of what the Court considered to be " litigation misconduct" and a chance to answer and defend themselves, they would first pointed out generally that "a trial court must examine certain factors before awarding sanctions under the act." 103 The absence of any such factor analysis in the Final Judgment is a 99 Id. 100 Bryantv. Bryant, 924 So. 2d, 627, 633 (Miss. App. 2006) 101 Choctaw, Inc., 965 So. 2d, 1045 quoting Scruggs v. Saterfiel, 693 So. 2d 924, 927 (Miss. 1997). 102 In re Hines, 978 So. 2d 1275, 1279 (Miss. 2008) 103 In re Spencer, 985 So. 2d 330, 337 (Miss. 2008) citing Miss. Code Ann The factors are the eight factors set forth in Miss. Rule of Profl Conduct 1.5(a) and the eleven factors in Miss. Code Ann. l (a) through (k). 37

47 reversible error. 104 Next, "[a]n award of attorney's fees is not to be given to a party who is unsuccessful in an action []he initiates." 105 GP's first case was "unsuccessful" by operation oflaw because of non compliance with M.R.Civ.P. 4(d). 106 The rulings which concluded the first trial in DMR's favor was a dismissal under M. R. Civ. P. 41(b). 107 "A motion for directed verdict granted by the court, sitting without a jury, is procedurally a dismissal on the merits under Mississippi Rule of Civil Procedure 41(b)." 108 This should have triggered application of the doctrine of res judicata 104 See, e.g., Miss. Dep't of Human Servs. v. Shelby, 802 So. 2d 89, 97 if 33 (Miss. 2001). 105 Bryant, 924 So. 2d, 633 citing Youngv. Deaton, 766 So.2d 819, 822 (if12) (Miss. Ct. App. 2000). 106 By delivering the first summons and complaint to DMR's former interim Director, Mr. Guice, GP ineffectively served the department acting "head" rather than the department's exclusive statutory "agent," the Atty. Gen., as required by Rule 4 (d)(5). See, L.W v. C.WB.,762 So. 2d 323, 329, if if (Miss. 2000)(recognizing ineffective Rule 4(d)(5) service on Tishomingo County Department of Human Services, rather than the Atty. Gen.). GP filed no motion of any kind after 4/23/13 until 8/16/13. By then, the case against DMR alone, which was filed on 1116/13 had been pending for 212 days without proper service on the Atty. Gen., and without any valid waiver of such service. Thus, the Rule 4(d) 120 day limit for service had already lapsed on 5/16/13. The first case should have been dismissed based on non compliance with Rule 4(d) after 5/17/13. See, Jones v. Miss. State Univ., 948 So. 2d 509 (Miss. Ct. App. 2007); East Miss. State Hosp. v. Adams, 947 So. 2d 887 (Miss. 2007); Lewis v. Forest Family Practice Clinic, P.A.,124 So. 3d 654, 658(Miss. 2013). This defect was not cured by GP's eventual proper service of the AG in the second case against DMR, the Auditor and MDA because "[u]ntimely service of process is insufficient service of process." Heard v. Remy, 937 So. 2d 939, 942 (Miss. 2006). A plaintiff who does not serve the defendant within the 120-day period must either re-file the complaint before the statute of limitations ends or show good cause for failing to serve process on the defendant within that 120-day period; otherwise, dismissal is proper. Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss.1996); Brumfieldv. Lowe, 744 So. 2d 383, 387 (Miss. Ct. App.1999). 107 "This Court applies the substantial evidence/manifest eitor standards to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.Civ.P. 4l(b)."Stewartv. Merchs. Nat'! Bank, 700 So. 2d 255, (Miss. 1997) quoting Century 21 Deep S. Properties, LTD. v. Corson, 612 So. 2d 359 (Miss. 1992). "Under this standard, we must affinn unless the chancellor applied an incorrect legal standard or made manifestly wrong or clearly eiwneous factual findings." Hicks v. Bowling (Jn re Will of Bowling), 2014 Miss. App. LEXIS 480, 9 (Miss. Ct. App. Sept. 9, 2014) citing Estate ex rel. Campbell v. Calhoun Health Servs., 66 So. 3d 129, 133 (if14) (Miss. 2011). 108 Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So. 2d 826, 829 (Miss. 2008); Crowell v. Butts, 153 So. 3d 684, 687 (Miss. 2014). 38

48 precluding re-examination of DMR' s MPRA compliance in all subsequent proceedings. 109 Standing to commence the second case against DMR was lacking because GP made no follow-up MPRA request to DMR subsequent to the Rule 41 (b) ruling that no actionable "denial" had occurred. DMR was never again in a position to comply with MPRA after that ruling. A MLAA award which does not make a factual finding quantifying the amount of reasonable attorneys fees is properly vacated. 110 Jointly awarding 100% of the fees requested against DMR and MDA with no attempt explain or apportion their relative culpability, if any, is not an appropriate finding of "reasonableness." The specific portions of the Final Judgment's MLAA analysis relating to DMR appears at ifi!' s 9 and 10, CP- 3:308-09, RE , and if if's 59-65, CP-3:338-42, RE The findings at iii!' s 9 and 10 gloss over a series of materially erroneous ruling during the first trial which further demonstrates why that action was not a compensable "victory" for GP. Contrary to what is said in if 9, DMR raised a meritorious Rule 12(b)(5)/Rule 4(d) "insufficiency of service of process" defense and a Rule 12(b)(7)/Rule 19 "failure to join a party" defense. "The rules on service of process are to be strictly construed." 111 "This Court has... held that jurisdiction is not obtained by a defendant's informally becoming aware that a suit has been filed and that a complete absence of service of process 109 Both Answers in the second case asserted resjudicata affirmative defenses. CP:4:419 (DMR); CP-4:424 (MD.A). See, Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (Miss. 2005). Because of the uniformly favorable on the record findings and rulings before the Final Judgment, DMR.had no reason to raise this affirmative defense. Ct. App. 2010). 110 See e.g., Walton v. Walton, 44 So. 3d 1035, 1040, if 20, 2010 Miss. App. LEXIS 208, 11 (Miss. m Youngv. Sherrod, 919 So. 2d 145, 148 (Miss. Ct. App.2005); Kolikas v. Kolikas, 821 So. 2d 874, if 16 (Miss.Ct.App. 2002) (citing Birindelli v. Egelston, 404 So. 2d 322, (Miss.1981 )). 39

49 offends due process and cannot be waived." 112 M.R.Civ.P. 4(d)(5) provides that the summons and complaint shall be served together "[ u ]pon the State of Mississippi or any one of its departments, officers, or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi." GP only served its original and first amendment complaint on former interim DMR Director, Daniel Guice, Jr., which was improper. 113 Service on Mr. Guice was also insufficient because"[ r]ule 4( d)(5) required [GP] to serve a copy of the complaint and a copy of the summons on the Attorney General within 120 days of filing the complaint against [DMR]." 114 Because the Atty. Gen. was never personally served, GP' s initial suit was never "properly filed" and its complaint was "of no legal effect." 115 GP should not be allowed to not recover attorney's fees for any time spent in connection with the first case. The ruling referenced in~ 10, CP-3:308, RE0042, that the Atty. Gen. "waived" service of 112 Morrison v. Miss. Dep 't of Human Servs., 863 So. 2d 948, 95 3 (Miss. 2004) Mansour v. Charmax Indus., Inc., 680 So. 2d 852, (Miss. 1996). The reason why was explained in Knight v. State of Kansas, No , 1990 U.S. Dist. LEXIS (D. Kan. Sept. 6, 1990) and Oltremari by McDaniel v. Kansas Social & Rehabilitative Serv., 871 F. Supp. 1331, 1353 (D. Kan. 1994). "When legislators have acted to designate a particular recipient for process or have specified a particular method of service upon the state, the courts must enforce the statutory procedure." Oltremari, 871 F. Supp., "The purpose of requiring service upon the Attorney General or an Assistant Attorney General is to insure the prompt notification of the Attorney General's office of all legal actions against the state. Such service allows for the subsequent coordination and supervision of the defense by the Attorney General." Knight, 1990 U.S. Dist. LEXIS 13520, * See E. Miss. State Hosp. v. Adams, 947 So. 2d 887, 890, i-f 9 (Miss. 2007). 114 Davis v. Miss. Ed. of Certified Court Reporters, 126 So. 3d 982, (Miss. Ct. App.2013). 115 Thomas v. Warden, 999 So. 2d 842, 846 (,-r 15) (Miss. 2008); Public Emp. Ret. Sys. of Miss. v. Dillon, 538 So.2d 327, 328 (Miss. 1989); Jones, 948 So. 2d, The reason why was explained long ago in Amy v. City of Watertown, 130 U.S. 301, (1889): "When the statute designates a particular officer to whom process must be delivered and with whom it may be left,... no other officer or person can be substituted in his place. The designation of one particular officer upon whom service may be made excludes all others." See also, Yazoo & M v. R. Co. v. Clarksdale, 257 U.S. 10, 26 (U.S. 1921)(Mississippi case). 40

50 process based on certain acts or omissions of Appellants Runnels and Patterson, is equally wrong. An "insufficiency of process defense is only waived if the answer or affirmative defenses are filed omitting the defense. " 116 "[W]hether a person may attack jurisdiction on appeal depends entirely upon when the objection is raised. If it was raised before or simultaneously with an answer or other responsive pleading, the objection is not waived by filing other pleadings, or even by participating in a trial on the merits. If, however; the objection is not raised until after an answer or other pleadings are filed (other than motions for continuance not considered to be a general appearance), the objection is waived per Rule 12(h). " 117 DMR properly answered GP' s first case with a "ineffective service of process" affirmative defense CP-1 :24, RE0203. Mr. Runnels, verbally raised DMR' s Rule 4( d)(5) 118 defense at the onset of the initial 4/23/13 hearing, which was a "hearing or trial" for purposes of M.R.Civ.P. 7(b)(l). 119 At TR-1:30-33,RE , thechancellorheldthatdmr waived personal jurisdiction based on Mr. Runnels "appearance" at the brief proceeding, where he said nothing on the record, TR-1 :5-7, notwithstanding the fact that Mr. Runnels correctly explained on 4/23/13 that he had raised the jurisdictional defense in DMR' s answer and thus had not made, and was not making l1 6 Lucas v. Baptist Mem. Hosp. - N Miss., Inc., 997 So. 2d 226, 233 (Miss. App. 2008) quoting Collom v. Senholtz, 767 So. 2d 215, 218, if 10 (Miss. Ct. App. 2000). 117 Mitchell v Mitchell, 767 So. 1078, , (Miss. Ct. App. 2000); Shaver v. Blackwell, 43 So. 3d 1155, 1159 (Miss. Ct. App. 2010); Standiferv. Boren, 111So.3d 1267, (Miss. Ct. App. 2013). us Rule 12(b)(4) and 5 states that "every defense... shall be asserted in the responsive pleading... except that the following defenses may at the option of the pleader be made by motion;... ( 4) insufficiency of process ( 5) insufficiency of service of process... "( emphasis added). u 9 M.R.Civ.P. 7(b)(l) provides that: "[a]n application to the comi for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with paiiicularity the grounds therefor, and shall set forth the relief or order sought... " M.R.Civ.P. 7(b)(l)(emphasis added). Because DMR's Rule 12 motion was made "during a hearing or trial," it was properly verbally asserted. M.R.Civ.P. 7(b)(l). 41

51 any "appearance" based on Lucas. The Chancellor wrongly declined to modify her ruling. TR-1 :3 3: 6-29, RE0207. The first case should have been stayed or dismissed at that point on 4/23/ Instead, the hearing improperly proceeded. GP called Appellant Chesnut as a witness. Melissa Patterson, a Special Asst. Atty. Gen. assigned to MDA, objected to questions which Patterson perceived to encroach upon the grand jury's province. The Court ruled, as follows: If the Attorney General-you see, Rule 4 is personal jurisdiction. You are certainly not arguing that the Court doesn't have subject matter jurisdiction. Now, you can waive personal jurisdiction by your appearance. If you are going to come here and object and participate, then you are waiving Rule 4 service of process... so I'm going to do for that reason, then, well-, and dismiss your affirmative defense for that reason, I'm going to find right now that you have waived personal service. TR-1:30:19-24, RE0204. While Patterson did, and still does, work for the Atty. Gen., that does not make her a Rule 4( d) substitute for the Atty. Gen. 121 She was present because GP subpoenaed MD A's Special Agent, 120 See, Davis v. Miss. Bd. of Certified Court Reporters, 126 So. 3d 982, 983 (Miss. App. 2013); Lundquistv. Todd Const!., LLC, 75 So. 3d 606, 609 (Miss. Ct. App. 2011); Tallahatchie Gen. Hosp. v. Howe, 154 So. 3d 29 (Miss. 2015); Price v. Clark, 21 So. 3d 509, 521 (Miss. 2009) citing Owens v. Mai, 891 So. 2d 220, 223 (Miss. 2005). 121 The trial judge clearly misunderstood the relationship between the Atty. Gen. and a SAAG assigned as counsel to a state agency."[n]o state agency may employ legal counsel without the prior approval of the attorney general..." State ex rel. Allain, 418 So. 2d, 782. Miss. Code Ann empowers the Atty. Gen. to employ SAA Gs, inter alia, "to perform any of the Attorney General's powers and duties." All SAA Gs serve "under the control and supervision" of the AG and are employed by the Atty. Gen. at his "will and pleasure." Id. SAAGs assigned as in-house counsel to state depa1iments or agencies such as the DMR Attorneys represent and afford day-to-day legal services to their assigned depa1iment or agencies, but are not employed by such departments or agencies. See generally, Rutland v. Office of Attorney Gen., State of Miss., 851 F. Supp. 793 (S.D. Miss. 1994), affd sub. nom., Rutlandv. Moore, 54 FJd 226 (5th Cir. 1995). This does not mean that a SAA G representing a state agency is authorized to accept or waive service of process for the Atty. Gen. A state agency SAAG and the Atty. Gen. are free to disagree within reasonable limits. "The unique position of the attorney general requires that when his views differ from or he finds himself at odds with an agency, then he must allow the assigned counsel or specially appointed counsel to represent the agency unfettered and uninfluenced by the attorney general's personal opinion. If the public interest is involved, he may intervene to protect it." State ex rel. Allain, 418 So. 2d, 784 (emphasis added). 42

52 Mr. Lott, as a witness. Her objection was appropriate. 122 A "legal appearance" by anon-party doesn't waive notice and service on another. 123 A chancellor possesses no sua sponte authority to join a state agency as a party. 124 Jurisdiction is not vested by the appearance in court by officials other than those designated by the Legislature to act on behalf of an institution. 125 At ii 57, CP-3: 336, RE007 l, D MR is faulted for not directly obtaining copies of the uncopied original records directly from MDA, or not moving the Chancery Court or later, the federal court to compel the Auditor to obtain DMR's records from the Auditor. This overlooks numerous practical and legal obstacles. GP never wanted or requested a duplicate copy of all seized DMR records. DMR was not obligated by MPRA to create such a new public record that did not exist and which it was neither obligated or able to create after the records seizure. Copying all seized records at DMR's expense and donating them to GP as suggested by the Chancellor would have circumvented MPRA' s "reasonable cost shifting" provisions and violated Miss. Const. art. 4, DMR had no way of identifying any lesser subset of "uncopied originals" that GP wanted unless and until GP somehow identified them. But, because the originals were in the exclusive custody and control of the MDA, or later, other law enforcement officials, MDA could not produce them for inspection. GP obviously 122 See, Pacific, 705 So. 2d, See, In re Estate of Lewis, 45 So. 3d 313, 317(Miss. Ct. App.2010). 124 See, FSC Sec. C01p. v. McCormack, 630 So. 2d 979, 987 (Miss.1994). 125 See, e.g., Oktibbeha County Hosp. v. Miss. State Dep't of Health, 956 So. 2d 207, 211, if 16 (Miss.2007); In re Brantley v. Brantley, 865 So. 2d 1126, 1133 (Miss.2004); Natchez v. Craig, 191 Miss. 567, 573 (Miss.1941); State ex rel. Rice v. Stewart, 184 Miss. 202, 221(Miss.1938) and Henry v. State, 87 Miss. 1 (Miss. 1905). 126 "No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use." See, Nichols v. Patterson, 678 So. 2d 673, 681 (Miss. 1996). 43

53 should have submitted a MPRA request to the subsequent "record custodians." Moreover, a suit between state agencies to recover DMR's records as suggested by the Chancellor requires the consent of the Atty. Gen, or it is procedurally barred. Miss. Code Ann It is unlikely that the Atty. Gen. would have approved a suit between DMR and MDA directly interfering with the ongoing criminal investigation of DMR. The Atty. Gen. chose not to intervene and advised the Chancellor not to interfere with the federal grand proceedings by her own on the record admission. Intervention by the state is only authorized where "a claim is asserted that the statute under which the action sought to be restrained or enjoined is to be taken is unconstitutional," which was never an issue. 128 The Chancery Court had no jurisdiction to directly interfere with the state grand jury proceedings, or to punish DMR for reasonably declining to do so. Finally, once DMR's records were taken into possession of the federal grand jury, they were subject to a "per se" rule protecting any documents submitted to and within the custody of the grand jury from disclosure. 129 Thus, DMR never, at any time, "washed its hands of all responsibility to come into compliance with a lawful records request of the Plaintiff." If the DMR lawyers occupied the "backseat during the course of this litigation" in the eyes of the Chancellor, it was only because she put them there by ruling again and again that they and DMR did not violate MPRA. At 'if 58, CP-3:338, RE0072, the Final Judgment posits that DMR always had the ability to 127 Miss. Code Ann reads: "No a11n or agency of the state government shall bring or defend a suit against another arn1 or agency without prior written approval of the Attorney General." See, e.g., Bd. of Trs. of State Jnsts. of Higher Learning v. Ray, 809 So. 2d 627, 629 (Miss. 2002). 128 M.R.Civ.P. 24(d). 129 See Baskin v. United States, 135 F.3d 338, 344 & n.3 (5th Cir. 1998); State of Texas v. United States Steel C01p., 546 F.2d 626 (5th Cir.), cert. denied, 434 U.S. 889, 98 S. Ct. 262, 54 L. Ed. 2d 174 (1977); Pettersson v. United States, 2003 U.S. Dist. LEXIS 3943, 4 (N.D. Tex. 2003). 44

54 seek a copy of its uncopied original records in MDA' s possession "through an appropriate motion in Circuit Court." This contradicts~ 64, CP-3: 341, RE0075, where we are told that "jurisdiction lies solely with the Chancery Court, and of course, an action was pending in the Chancery Court." (emphasis added). 130 But, assuming arguendo that this is so, Miss. Const. art. 6, 157 requires that all causes that may be brought in the circuit court where the chancery court has exclusive jurisdiction shall be transferred to the chancery court. Under her ~ 64 jurisdictional theory, the Chancellor could have tried to enter such an order. She never attempted to do so. She never told DMR to ask the Circuit Court for such an order. GP never asked for any such order. The preceding MPRA discussion explains the errors oflaw in the findings in~ 59, RE0072, that DMR was under "an affirmative duty to maintain a backup copy of the complete set of records it was charged to keep as a public body," and that "DMR failed to properly keep its records pursuant to Miss. Code. Ann , both before and after such records were seized by the Auditor," and that DMR "failed to keep maintain its records as it was required to do," in~ 60, RE The remainder of~ 60 fails to recognize that MLAA only "polices" litigation abuse. Public record keeping practices are properly within the purview of the Ethics Commission or a grand jury. 131 DMR's reliance upon the MPRA "investigative report" was reasonable, particularly since it was a matter of first impression. MDA plainly properly relied on that same exemption. When served, MDA's 13 Farris v. State, 764 So. 2d 411, (Miss. 2000) suggests that this Court may disagree: "Chancery courts, under Article 6, Section 159, clearly do not have jurisdiction to try criminal matters. This untenable reasoning was not contemplated in Article 6, Section 156, and it is not our duty to implement folly in the law under the guise of strained logic." 131 See the MPRA discussion supra, and 175 of the Mississippi Constitution of 1890, which provides that "all public officers, for wilful neglect of duty... shall be liable to presentment or indictment by a grand jury." 45

55 subpoenas took immediate constructive possession of DMR' s records and prohibited any further duplication or third-party disclosure of uncopied originals. 132 Since it notified GP of the records seizure long before suit was filed, any "delay in joining the Auditor and MDA" rests with GP. 133 DMR was never under any sanctionable obligation to 'join the auditor." 134 Intervention was the Auditor's decision to make, not DMR' s. 135 Appellant Runnels didn't unreasonably refuse to agree to any orders or do anything else amounting to sanctionable dilatory "legal maneuvering." 136 Finally, at if if's 60-64, the Final Judgment makes a series of conclusory findings of "misleading conduct" and "bad faith" on the part of the attorneys representing DMR, MDA and the Attorney General's office, based largely on the Chancellor's speculation about events which occurred outside her presence. Neither of the DMRAttorneys were previously or contemporaneously accused by the Chancellor of any such misconduct. If the Chancellor didn't get what she considered to be a "straight answer" to questions posed to them, she never said so anywhere in the record. She never 132 See CP-6:707, if if 6-8, RE Id., if if's 9, 10 and Exhibit #6 thereto. 134 "Rule 3(a)... states "[a] civil action is commenced by filing a complaint with the court." Price v. Clark, 21 So. 3d 509, 521 (Miss. 2009). A hypothetical motion by DMR adding the Auditor or MDA as parties would have invoked M.R. Civ.P. 14( a), which plainly says " [a ]ft er commencement of the action and upon being so authorized by the court in which the action is pending on motion and for good cause shown, a defending party may cause a summons and complaint to be served on a person not a party to the action who is or maybe liable to him for all orpa1i of the plaintiffs claim against him." (emphasis added). Because GP had not, and did not properly serve DMR, the first case was never "commenced" or "pending," before it was terminated for the same reason by operation of Rule 4(d). 135 "Mississippi Rule of Civil Procedure 19 allows a court pennissively to join any paiiy who 'claims an interest relating to the subject matter and is so situated that the disposition of the action in his absence may as a practical matter impair or impede his ability to protect that interest."' Cooper v. Estate of Gatwood, 119 So. 3d 1031, 1038 (Miss. 2013). Rule 19 applies when the non-party (Gatwood in Cooper), seeks to intervene. See also,mabryv. Howington, 569 So. 2d 1165, 1166 (Miss. 1990). The Auditor andmda were not seeking to intervene, and there was no pending case for them to intervene in. 136 See CP-6:707-09, RE , if if's and Exhibits #'s 7-18 thereto. 46

56 contemporaneously or accused or suggested "bad faith," on their part. The record reflects they were reasonably and properly representing DMR well within the bounds of the law at all times. The MLAA attorney fee award is thus the product of an abuse of discretion, and should be vacated. 3. The Denial of the DMR Appellants' Rule 59 Motions Denials of a M.R.Civ.P. 59 motion are reviewed for abuse of discretion. 137 When appealing a motion to alter or amend, a party may only obtain relief upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. 138 The timely 972 page Rule 59 motion by DMR supported by voluminous documented affidavits by the DMR attorneys appears at CP-5: 657 through CP-8: The motion raised the same manifest errors oflaw discussed in this brief. The Order overruling the Rule 59 motion without ahearing appears at CP-8, DMR's motion is only briefly and incompletely summarized at CP , if 4. The Order, RE , not only refuses to correct the erroneous Final Judgment, it compounds and perpetuates the same errors because: (a) sanctions, including those under Miss. Code Ann , must still be preceded by appropriate notice; 139 (b) MPRA doesn't trump the order modifying the grand jury subpoena, justify the Chancellor's unfounded speculation about why the Circuit Judge was correct or incorrect in granting it, or abrogate the Circuit Court's exclusive (Miss. 1999). 137 Brooks v. Roberts, 882 So. 2d 229, 233 (Miss. 2004) (citing Bang v. Pittman, 749 So. 2d 47, Brooks, 882 So. 2d, 233 citing Bang, 749 So. 2d, (emphasis added); In re Estate of Stewart 732 So. 2d 255, 257 (Miss. 1999). 139 See if if' s 8-10 and Mansour, 1994 Miss. LEXIS 629, 8, fu. 1. The finding at if 15 overlooks that the DMR Appellants were consistently misled by the rulings that DMR had not violated MPRA, which cannot be explained away or justified as mere "oversights" or "mistakes." 47

57 jurisdiction over grand jury matters; 140 (c) communications between DMR and law enforcement officials are expressly authorized, not prohibited by MPRA, 141 and (d) presentation ofdmr's Rule 4( d)/rule 19 defenses was not premature, correctly or timely ruled upon, or waived. 142 DMR' s Rule 59 motion wasn't based on "newly discovered evidence" as found at if if 's The "manifest injustice" it documents and rightly protests is the Final Judgment's recantation and reversal, without prior notice, of the consistent previous rulings and representations in favor ofdmr which are quoted throughout this brief. Before then, and because of their reasonable reliance on the prior rulings, the DMR Appellants had absolutely no reason to address or put on proof as to matters seemingly already adjudicated in their favor, or disproving claims or allegations not made by GP and never previously voiced by the Court. If the Chancellor was inclined to revisit her prior interlocutory orders, she should have notified and provided the parties a fair opportunity to be heard on the subject prior to any final ruling. The Appellants were given no such prior notice or opportunity before the Final Judgment. This was a manifest due process violation highly prejudicial to all of the DMR Appellants. CONCLUSION As far as the facts go, the one significant date that needs to be remembered is 1/8/13. That was the date when DMR was first served by MDA with the Harrison County grand jury subpoenas. The subpoenas specifically provided that "[t]he data is to be 'retained in-place' and shall be accessible upon demand by agents of the Mississippi Office of the State Auditor and shall be released to no 140 See if 11 and Farris, 764 So. 2d, 423, if See if 12 and Miss. Code Ann (2)(b) discussion, supra. 142 See if if's 13, and 17-21, all of which are legally erroneous for the same reasons previously explained in connection with this brief's discussion of the Court's en-oneous rulings in ifif's 9 and 10 of the Final Judgment. The discussion in if if's is wrong as a matter of law for the reasons explained in connection with DMR's Rule 19 defense in this brief. 48

58 entity other than the Mississippi Office of the State Auditor." (emphasis added). The first question that must be answered is whether there is any evidence in the record that the DMR or its attorneys violated MPRA prior to 1/8/2013? The clear answer is "No," because the record is devoid of any proof that the DMR violated the MPRA beforel/8/2013. The second question that must be answered is after being served with a grand jury subpoena on 1/8/13, another on 1/9/13, and having all hard copies of the relevant DMR records physically seized by the MDA on 1/15/13, did DMR or its attorneys do anything to violate MPRA or the MLAA? Again, the clear answer is "No," because the record contains no testimony or evidence that the DMR deliberately or intentionally violated the MPRA or the MLAA. Prior to 1/8/13 DMR was responding to numerous public records requests from GP and providing, after proper payment, the documents that GP was willing to pay for. On and after 1/8/13 the DMR was prevented by the terms of the grandjury subpoena from responding to further public records requests for documents covered by the subpoenas. On and after 1/8/13 the DMR reasonably and logically concluded that it could not both comply with the MPRA and the grand jury subpoena. DMR and its attorneys should not now be held liable for reasonably concluding, that DMR could not disregard or violate the grand jury subpoenas and that it could not produce records for copying that it no longer controlled or possessed. DMR produced all of the existing records that it still possessed after the seizure. MPRA required no more under the circumstances. 49

59 Respectfully submitted, this the 24th day of April, MISSISSIPPI DEPARTMENT OF MARINE RESOURCES, JOSEPH A. RUNNELS, JR. and SANDRA R. CHESNUT By: Isl Ronald G. Peresich RONALD G. PERESICH, MSB #4113 Page, Mannino, Peresich & McDermott, P.L.L.C. 759 Vieux Marche Mall P. 0. Drawer 289 Biloxi, MS Telephone: (228) Facsimile: (228) By: Isl William V. Westbrook III WILLIAM V. WESTBROOK, III, MSB #7119 Page, Mannino, Peresich & McDermott, P.L.L.C th Street Gulfport, MS Telephone: Facsimile:

60 CERTIFICATE OF SERVICE I, William V. Westbrook, III, of the law firm of Page, Mannino, Peresich & McDermott, P.L.L. C., do hereby certify that on this day I electronically filed the foregoing Brief of Appellants with the Clerk of Court using the MEC system which sent notification of such filing to the following: Henry Laird - hlaird@joneswalker.com = Jim Hood- jhood@ago.state.ms.us Sandra R. Chesnut - sandy.chesnut@dmr.ms.gov Joseph Runnels - runnelsms@vahoo.com Harold E. Pizzetta, III - Hpizz@ago.state.ms.us Melissa Patterson - Melissa.patterson@osa.ms.gov John G. Corlew - jcorlew@cmslawvers.com John T. Kitchens - john@whitfieldlaw.org Alan Mitchell Purdie - apurdie@purdieandmetz.com Dion Jeffery Shanley - dshanley@nurdieandmetz.com Margaret Parish Ellis - mellis@mdot.ms.gov Arthur F. Jernigan, Jr. - ajemigan(a),jcalawfinn.com and via United States Mail, postage pre-paid to: Honorable Jennifer Schloegel Chancery Court Judge rct Avenue Gulfport, Mississippi So certified this the 24th day of April, Isl William V Westbrook. III WILLIAM V. WESTBROOK, III

61 FBI- Federal and State Charges Filed in Joint Investigation In... Page I of 2 Jackson Division Home J1ckson Prell Releases 2013 Fec:tereJ and S1a1e Ch1rgts f,1ee11n Jo.n1 lnvesbgation ln\l'oivtnq M1s.s1ss1pp1 Department of Manne ResOUl'CH Federal and State Ch arges Filed in J oint Investigation Involving Mississippi Department of Marine Resources Jackson Division Links Jackson Home Contact Us Overview Territory/Jurisdiction U.S. Attorney's Office November 07, 2013 Sou them District of Missis si1>pi (6ot) News and Outreach._ Press Room I Stories - In Your Community GULFPORT, MS-Federal and state grand jurie.~ returned indictments this week following a joint investigation into the acth~ties of the Mississippi Department of Marine Resources {DMR) and a $3 million grant issued to the city of D'Iberville, announced U.S. Attorney Gregory K. Davis, FBI Special Agent in Charge Daniel McMullen, 111ississippi State Auditor Stacey Pickering. Second Circuit District Attorney Joel Smith, and Nineteenth Circuit ~strict Attorney Tony Lawrence. The State Auditor's Office also issued civil demands totaling more than $1 million. William W. Walker, 68, of Ocean Springs; Scott J. Walker, 34, of Ocean Springs; Sheila Tina Shumate, 52, of Saucier; and Joseph C. zeigler, J r., 66, of Gulfport, have been named in a five-count federal indictment, returned on Tuesday, November 5, 2013, charging conspiracy to commit federal program fraud, federal program fraud, conspiracy to commit mail fraud, and mail fraud involving DMR a nd the Mississippi Marine Resources Foundation. About Us Our People & Capabilities 'Nhat We tnvesligate Our Partnerships Jackson History Wanted by the FBI - Jackson FBI Jobs S<Xltt J. Walker is also named in a separate federal indictment along with Michael Janus, age 47, of Biloxi, charging conspiracy to commit program fraud, program fraud, bribery in connection with a federal program and money laundering. Tue indictment alleges that Walker and Janus caused a false invoice in the amount of $180,000 to be submitted to the city of D1berville for payment of consulting services. A Harrison County grand jury returned indictments this week against Sheila Tina Shumate, Leslie Young Gollott, Susan Perkins, J ere Grant Larsen, Jr., and Kerwin Cuevas for multiple counts offraud and embezzlement that allegedly occurred during their employment with the Department of Marine Resources. In addition, the Mississippi State Auditor's Office issued demands against 10 individuals as part of this investigation totaling $1,022, The indh~dual demands are listed below: William Walker: $362, J oseph Ziegler: $258,268.7!5 Sheila Shumate: $127, Leslie Gollott: $117, Susan Perkins: $30, Grant Larson: $1, Kerwin Cuevas: $108, Walter Chataginer: $1, Kerry Endris: $13, Samantha Hebert: $1, "The indictments and demands announced today are one step toward restoring the trust of taxpayers, but they do not close the investigation," State Auditor Stacey Pickering said. As alleged in the indictments, these men and women abused their positions, stole from the taxpayers of Mississippi, and they will be held accountable for their actions. l appreciate the hard work and cooperation from the local, state, and federal agencies involved including our special agents; District Attorneys Joel Smith and Tony Lawrence; Gregory Davis, U.S. Attorney for the Southern District; and Daniel McMullen, Special Agent in Charge for the Federal Bureau of Investigation." The public is reminded that an indictment is an allegation that a defendant has committed a crime. All defendants are presumed innocent until and unless pro\ en guilty. This content has been reproduced from its original source. Accessibility erulemaking I Freedom of Information Act Legal l'otices Legal Policies and Disclaimers Un ks Privacy Policy USA.gov White House rm...,.,oil l11c1ul l' o th- t ~ ~11\::tmncn1 U.S.Depanmento(Justic:e Clos APPENDIX "1" 04/21 /1 5

62 E-Filed Document Dec :18: M SCT Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI MISSISSIPPI DEPARTMENT OF AUDIT; STACEY PICKERING, STATE AUDITOR, et al. VERSUS GULF PUBLISHING COMPANY, INC. PETITIONERS NO.: 2013-M RESPONDENT STATEMENT OF THE TRIAL JUDGE ON PETIT JON FOR INTERLOCUTORY APPEAL AND MOTION TO STAY PURSUANT TO RULE 5(b) OF THE MISSISSIPPI RULES OF APPELLATE PROCEDURE Interlocutory Appeal Sought From The Chancery Court of Harrison County, Mississippi Second Judicial District In The Eighth Chancery Court District St ate of Mississippi Cause No. 24CH2:13-cv consolidated with Cause No. 24CH2:i3-cv THE HONORABLE JENNIFER T. SCHLOEGEL CHANCELLOR EIGHTH CHANCERY COURT DISTRICT POST OFFICE Box 986 GULFPORT, MISSISSIPPI TELEPHONE: Jschloegel@co.harrison.ms. us TONI Ross, COURT ADMINISTRATOR TELEPHONE: FACSIMILE: Tross@co.harrison.ms. us APPENDIX "2"

63 respectively. The state subpoenas 5ought certified copies of the documents which are in excess of 22,000 in number and contained within 38 boxes. A week after the state subpoenas were issued and served upon DMR; the Stale Auditor seized all the documents on January i5, In an effort lo comply with both the records requests and the subpoenas, the Attorney General on behalf of both the State Auditor and DM R prepared and provided an agreed order to Senior Circuit Judge of Harrison County, Roger Clark, rhereby waiving any copying and confidentiality restrictions of the state subpoenas. See Exhibit "E" attached hereto. However, although the Respondent's newspaper was provided copies of 22,000 documents, there are certain documents, described in the records requests, which were not produced. It would later come to light that scattered randomly throughout the thousands of documents and 38 boxes, there exist original records which DMR never copied 2 ; and therefore, DMR was unable to fully comply with the records requests once the Auditor seized the original set of all the documents. 4. Those original documents were in the possession of the Auditor at the time of trial on October 30 and 31, Thus, one issue presented for consideration by lhe Chancery Court is whether the DMR or the Auditor or both knowingly and in bad faith sought to deprive the Respondent of the records. The Chancery Court ultimately found that the DMR did not violate the statute but has not ruled on whether the Auditor acted in bad faith. 2 At an earlier hearing on April 23, the Auditor's investigator, Chris Lott, testified that the original un-copied records would fill approximate 2-3 boxes should they be separately compiled together, which they are not. 5

64 CERTIFICATE OF SERVICE I hereby certify that on the 2 nd day of December, 2013 a true and correct copy of the foregoing STATEMENT OF TRIAL JUD GF has been filed with the Clerk of the Supreme Court using the MEC system and a copy served upon the following persons by electronic mail only: Jim Hood, Attorney General Melissa C. Patterson Harold E. Pizzetta, III Douglas T. Miracle Alison E. O'Neal Special Assistant Attorneys Generul OFFICE or THE A'ITORNEY GENERAL jhood@ago.state.ms.us Melissa.Patterson@osa.ms.gov hpizz@ago.state.ms.us Dmira@ago.state.ms. us Aonea@ago.state.ms. us Joseph A. Runnels, Jr. Sandra R. Chesnut Special Assistant Attorneys General MISSlSSlPPI DEPARTMENT OF MARI NF. RESOURCES )oscph.runnels@dmr.ms.gov Sandy.Chesnut@dmr.Ms.Gov John G. Corlew CORLEW MUNFORD & SMITH PLLC COUNSEL FOR STATE AUDITOR jcorlew@cmslawyers.com Henry Laird, Esq. JONES WALKER, LLP COUNSEL FOR GULF PUBLISHING COMPANY hlaird@joneswalker.com

65 BEN H. SrONE, Chairman Gulfpon W AllEY R. NAYLOR, Vice Chairman Madison Bil.LY R. POWEU., Secretary Madison WlllJAM R. WHEELER, JR. Tupelo MISSISSIPPI ETHICS COMMISSION Post Office Box Jackson, Mississippi Telephone: Telecopier: TOM HOOD Executive Director and Chief Counsel ROBERT G. CLARlC Pickens SUE H. STEDMAN Natchez PAUL V. BREAZEALE Jackson BRENDA T. REDFERN Richland II PUBLIC RECORDS OPINIO~ NO. R October I 1, 2013 The Mississippi Ethics Commission issued this opinion on the date shown above in accordance with Section (1 )(b), Mississippi Code of 1972, as reflected upon its minutes of even date. 1. FACTS/PROCEDURAL HISTORY 1. I Mr. Steven Allen DeLoge filed this public records opinion request with the Commission. DeLoge on December , sent a formal demand for return of property and evidence (the "items") to the Desoto County Sheriff's Office ("DCSO''). These items apparently belong to DeLoge and were obtained by DCSO in the course of a crim inal investigation. On February I 5, 2013, DCSO advised Mr. DeLoge that the items he requested were provided to DCSO's Criminal Investigation Division in September 2000 by law enforcement authorities in Wyoming and that DCSO kept those items as evidence in an open case regarding a missing person. DCSO refused to release the items claiming the items were related to the ongoing DCSO investigation concerning the missing person. 1.2 On April 5, DeLoge, subm itted a public records request to DCSO. ln the request, DeLoge sought the following records: Physical location of, itemized inventory of, chain of custody of, and current condition/status of all property/evidence which was obtained in the state action... and FBI Case o. 7C-JN262 I and which property/evidence was transferred into the custody of your agency from ovember of I to - March of This request includes all facts pertaining to this matter. including persons who provided items to your agency, dates and inventory: which persons in your agency or supplying agencies were involved and previously had or no\v have possession of any items; names. dates. and details of who received the items; chain-of-custody documentation from ovember 3, to date; and current status of all items in the possession of your agency. APPENDIX "3"

66 Opinion No. R M ISSISSIPPI ETHI CS COMMISSION October I I Page 2of3 On April 13, DCSO responded to DeLoge s request and provided an inventory sheet DCSO received from the Federal Bureau of Investigation. when that agency delivered the items from Wyoming to DCSO, and further advised that the items were stored in the evidence room of DCSO. DSCO fu1ther advised Deloge that pursuant to Sections (t) and (2), the other requested items were investigatory in nature and related to an open investigation, and were not subject to production under the Mississippi Public Records Act. 1.3 Deloge filed this public records opinion request arguing DCSO should produce "an itemized list of the items in possession, chain-of-custody and current status information, copies of papers, documents or photographic records that can be redacted to protect vital information from disclosure, and return of items non-essential to the [DCSO] investigation." Mr. DeLoge's professed reason for filing the public records opinion request is to require DCSO to present the "Commission with a detailed review of seized items that are retained, determining which items should be returned'' to DeLoge. In response, DCSO submitted an affidavit explaining DCSO has an open investigation concerning a missing person, and the items retained by DCSO "are believed to be directly or indirectly connected with this open investigation." II. A ALYSIS 2.1 The Mississippi Public Records Act of 1983 (the ' Act") declares that public records shall be available for inspection or copying by any person unless otherwise provided by law. Section , Miss. Code of 'Pub! ic records" are defined as all documents or records "having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body." Section (b). The term ' public body'' includes "any department. bureau. division, council, commission, committee, subcommittee. board. agency and any other entity of the state or a political subdivision thereof, and any municipal corporation.., Section (a). 2.2 DCSO is a 'public body" subject to the Act. Generally, the term "public records" under the Act includes records obtained from a third party and possessed or retained by a law enforcement agency in the course of investigation of criminal matters under the agency's jurisdiction. While those records may not belong to the law enforcement agency, those records. while in possession of the law enforcement agency. are subject to the Act. Additionally, the term "public records'' includes any records created by a law enforcement agency while investigating criminal matters under the agency s jurisdiction. 2.3 As a preliminary matter, nothing in the Act requires a public body such as DCSO to return records to a citizen or the Commission to facilitate the return of records to DeLoge. Accordingly, those requests will not be addressed by the Commission. The only issue in this matter is whether any of the records sought by DeLoge are wholly or partiall) exempt from inspection or disclosure under the Act. 2.4 DCSO is a ''law enforcement agency,'' as defined in Section 25-6 I -3(g). Section 25-6 l-12(2)(a) specifies.. investigative reports shall be exempt from'' the Public Records Act. Section 25-6 I -3(t) defines an.. investigative report.. as a record of a law enforcement agency containing information beyond the scope of the matters contained in an incident report. which will generally include the following: