IN THE SUPREME COURT OF MISSISSIPPI NO: 2014-CA-00894

E-Filed Document Nov 18 2016 14:30:53 2013-CT-02002-SCT Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI NO: 2014-CA-00894 MELISSA C. PATTERSON, STACY PICKERING, INDIVIDUALLY, DAVID HUGGINS, INDIVIDUALLY, CHRIS LOTT, INDIVIDUALLY, MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING IN HIS OFFICIAL CAPACITY AS STATE AUDITOR FOR THE STATE OF MISSISSIPPI, HAROLD E. PIZZETTA, III, MISSISSIPPI DEPARTMENT OF MARINE RESOURCES, JOSEPH A. RUNNELS, JR., SANDRA CHESNUT AND JIM HOOD APPELLANTS VERSUS GULF PUBLISHING COMPANY, INC. APPELLEE CONSOLIDATED WITH NO: 2013-CA-02002 MISSISSIPPI DEPARTMENT OF AUDIT APPELLANT VERSUS GULF PUBLISHING COMPANY, INC. APPELLEE ON APPEAL FROM THE CHANCERY COURT FOR THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, MISSISSIPPI MISSISSIPPI RULE OF APPELLATE PROCEDURE 17(h) SUPPLEMENTAL BRIEF OF GULF PUBLISHING COMPANY, INC. Henry Laird, MB #1774 JONES WALKER LLP 2510 14 th Street, Suite 1125 (39501) Post Office Box 160 Gulfport, MS 39502 228/864-3094 Email: hlaird@joneswalker.com {GP094935.1}

Introduction. This is a case of first impression for Mississippi. If the Court of Appeals decision is not reversed and rendered by the Supreme Court, Mississippi will move away from well settled law that the openness requirement of the Mississippi Public Records Act of 1983 must be construed liberally and any exemptions must be construed strictly and narrowly. Since the legislature passed the Public Records Act of 1983, this Court has construed exemptions to protect the right of Mississippians to know about and participate in their state government. The same is true about this Court s strict and narrow interpretations of exemptions to Mississippi s open meetings law the legislature passed in 1976. If the decision of the Court of Appeals finding the records are exempt criminal investigative reports is allowed to stand, we start to travel down a road leading to more secrecy in state government and away from openness. This Court now has the opportunity to put the people of this state back on the road they have traveled so long to more openness in their state government, which is their right. Any doubt about whether these public records are subject to exemption should be resolved in favor of disclosure to Gulf Publishing and all Mississippians. With one exception, pursuant to Mississippi Rule of Appellate Procedure 17(h), Gulf Publishing Company, Inc. ( Gulf Publishing ) will rely on its Reply Brief of Appellee filed June 24, 2015, Motion for Rehearing filed April 11, 2016, and Petition for Writ of Certiorari filed September 2, 2016. The one exception is the elaboration on our argument that had the Court of Appeals construed the question whether the records in issue were exempt as being criminal investigative reports liberally in favor of openness and strictly and narrowly against exemption pursuant to the clear purpose of the Mississippi Public Records Act and interpretive case law, the {GP094935.1}1

Court of Appeals would have found the public records at issue not to be exempt. On appeal this Court should employ a strict and narrow review of the criminal investigative reports exemption provided by 25-61-12 and 25-61-3(f) Mississippi Code and find that there is no exemption. After Gulf Publishing had made its public records requests to the Mississippi Department of Marine Resources ( DMR ) on Noveber 14, 2012 and December 27, 2012 for the records at issue, the Mississippi Department of Audit and the State Auditor (collectively Auditor ) subpoenaed DMR for almost the exact same public records on November 5, 2013. On its face that subpoena clearly explained that DMR could comply with the subpoena by furnishing the Auditor copies of the public records. Instead, DMR in wholesale fashion turned over originals of all of the subpoenaed records to the Auditor, leaving DMR with no records at all to operate the agency or comply with Gulf Publishing s public records request. 1 Because the Auditor then had possession and control of DMR s public records, the Chancery Court ordered that the Auditor be added as a party pursuant to Mississippi Rule of Civil Procedure 19, which was done September 12, 2013. [R. 88.] Thereafter on November 4, 2013 the Auditor was subpoenaed by a federal grand jury sitting in Jackson, Mississippi for the same records the Auditor had subpoenaed from DMR and the same records that Gulf Publishing had previously requested from DMR in its public records request. Ignoring one bench opinion entered October 31, 2013, and another order entered November 4, 2013 by the Chancery Court requiring thousands of pages of records DMR complied in the ordinary course of business and having nothing to do with any criminal investigation to be turned over to the Chancery Court and DMR, under cover of night and with 1 See Brief of Appellee Gulf Publishing, pp. 28-29 for the proposition that DMR s failure to maintain custody of its public records violates 25-61-2 Mississippi Code and Mississippi Public Records Act of 1983 (. public records shall be available for any person ) and 25-59-15(b) Mississippi Code and the Mississippi Archives and Records Management Law of 1981 (public records to be preserved ). {GP094935.1}2

no notice to the Chancery Court, Gulf Publishing, or even the Auditor s own trial attorney, the Auditor transported the public records away from the Chancery Court in Biloxi to the federal grand jury where they were never used. [Tr. 283-306, 313, 316, 317.] Thereafter on motion of the Auditor the federal district court in Jackson returned the public records to the Auditor, who returned them to the Chancery Court for inspection by Gulf Publishing. United States v. Walker, 2013 WL 6805121 (S.D. Miss.). Openness Under the Mississippi Public Records Act. Miss. Dep t of Wildlife v. Miss. Wildlife Enforcement Officers Assoc., Inc. 740 So. 2d 925 (Miss. 1999) involved a set of facts where the Mississippi Wildlife Enforcement Officer s Association, Inc. ( Association ) obtained a judgment in the Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks ( Department ) for inspection of public records concerning compensation of Department employees. The Department objected to producing the public records claiming they were exempt from disclosure as personnel records under 25-1-100 Mississippi Code. On appeal the Mississippi Supreme Court held that the records were not exempt and affirmed the Chancery Court decision to the contrary. Construing the plain meaning of Mississippi Public Records Act at 25-61-5(1) this Court ruled that all public records are hereby declared to be public property and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures. Miss. Dep t of Wildlife Fisheries and Parks, 931. The intent of the Legislature is manifestly clear from these provisions: public records which do not fall into a carefully defined exception provided by law are entirely open to access {GP094935.1}3

by the general public. Miss. Dep t of Wildlife Fisheries and Parks, 931. [T]here is to be a liberal construction of the general disclosure provisions of a public records act whereas a standard of strict construction is to be applied to the exceptions. And any doubt concerning disclosure should be resolved in favor of disclosure. Miss. Dep t of Wildlife Fisheries and Parks, 936. Openness Under Mississippi Open Meetings Law. Seven years before it enacted the Mississippi Public Records Act of 1983 the Mississippi legislature in 1976 enacted Mississippi s Open Meetings Law. Section 25-41-1 et. seq. Mississippi Code. The purpose of this legislation is declared at 25-41-1 Mississippi Code: 25-41-1 Mississippi Code. It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein. As in the Mississippi Public Records Act, the Open Meeting Act legislated that the citizens of Mississippi are a part of their state government. Openness is fundamental to the operation of good state government, and to assure that openness the Mississippi Supreme Court has construed exemptions the Open Meetings Act allowance of closed executive session similarly to the way it has construed the Public Records Act by requiring any exemption to be strictly construed. We also hold that within the framework of the statutory language itself all statutory exceptions must, under the spirit and philosophy of the Act, be strictly construed {GP094935.1}4

against executive sessions. Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So. 2d 107, 125 (Miss. 1989). Openness Under the Federal Freedom of Information Act. As the exemptions to the Mississippi Public Records Act and the Mississippi Open Meetings Law have been strictly and narrowly construed, so have the exemptions to the Federal Freedom of Information Act ( FOIA ). Consistent with FOIA s goal of broad disclosure, its exemptions have been consistently given a narrow compass. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 2 (2001). In construing the Freedom of Information Act, the United States Supreme Court has held the statutory limited exemptions do not obscure the basic policy that disclosure, not secrecy, is a dominant objective of the Act.. [C]onsistent with the Act s goal of broad disclosure, these exemptions have been consistently given a narrow compass. Klamath Water Users Protective Association, 8. Attorneys Fees. Once this Court on appeal uses a strict and narrow construction of the criminal investigative report exemption to the Mississippi Public Records Act and determines that the records at issue were non-exempt public records, the Court should affirm the Chancery Court s award of $36,783.50 attorneys fees and $1,249.95 expenses against the Auditor and DMR pursuant to 25-61-15 Mississippi Code (Mississippi Public Records Act of 1983) as well fees and costs on appeal. {GP094935.1}5

Mississippi Public Records Act Civil Penalty. The Court should also affirm the Chancery Court s $100.00 civil penalty against the Auditor and DMR for their violation of the Mississippi Public Records Act in refusing to allow Gulf Publishing to inspect and copy the public records at issue claiming the existence of the criminal investigative report exemption of 25-61-12 and 25-61-3(f) Mississippi Code. Civil Contempt. Finally, the Court should affirm the Chancery Court s decision to hold the State Auditor in civil contempt for its admitted and willful disobedience of the Chancery Court s bench ruling and order requiring the Auditor to return the public records to DMR and the Chancery Court. The Chancery Court correctly found the Auditor to be in civil contempt of its bench opinion and subsequently entered order. Assuming arguendo the opinion and order were entered erroneously, the Auditor s disobedience of them nonetheless constitutes civil contempt. In the Matter of the Contraction, Exclusion and Deannexation of Certain Areas of the Corporate Boundaries of the City of Grenada, 876 S. 2d 995, 1005-06 (Miss. 2004). In that case this Court affirmed a Chancery Court decision holding City of Cleveland, Mississippi city councilmen in contempt of the Chancellor s deannexation order. The Chancellor was not manifestly in error in finding the councilmen in contempt. In addition, our finding that the Chancellor s directive to the City to proceed with voting rights litigation was improper is also not an excuse for failure to comply with the judgment. {GP094935.1}6

Conclusion. For these reasons Gulf Publishing requests the Court to reverse the Court of Appeals decision and to affirm the Chancery Court decision that the public records in issue are not subject to the criminal investigative report exemption, to award attorneys fees to Gulf Publishing, to impose the Public Records Act civil penalty of $100.00 against DMR and the Auditor, and to hold the Auditor in civil contempt. Respectfully submitted this the 18 th day of November, 2016. GULF PUBLISHING COMPANY, INC. By: S/ Henry Laird Henry Laird, Mississippi Bar No. 1774 {GP094935.1}7

CERTIFICATE OF SERVICE I Henry Laird, do hereby certify that I have electronically filed the foregoing by using the ECF-System which sent notification of same to all counsel of record: John T Kitchens, Esquire Kitchens Hardwick & Whitfield, PLLC 1000 Lake Village Circle Brandon, MS 39047 Email: john@kitchenshardwick.com Attorney for Melissa C. Patterson Arthur F. Jernigan, Jr., Esquire Jernigan Copeland & Anderson, PLLC Post Office Box 2598 Ridgeland, MS 39158 Email: ajernigan@jcalawfirm.com Attorney for Stacey Pickering, Individually; Chris Lott; and David Huggins Ronald G. Peresich, Esquire P. O. Drawer 289 Biloxi, MS 39533 Email: rgp@pmp.org Attorney for Mississippi Department of Marine Resources; Joseph A. Runnels, and Sandy Chesnut William V. Westbrook, III, Esquire Page, Mannino, Peresich & McDermott, P.L.L.C. 2408 14th Street Gulfport, MS 39501 228-868-8923 Email: cwestbrook@pmp.org Attorney for Mississippi Department of Marine Resources; Joseph A. Runnels, and Sandy Chesnut John G. Corlew, Esquire Corlew Munford & Smith, PLLC 4450 Old Canton Road Suite 111 Jackson, MS 39211 Email: jcorlew@cmwlawyers.com Attorney for Mississippi Department of Audit and Stacey Pickering, State Auditor {GP094935.1}8

This the 18 th day of November, 2016. Henry Laird (MSB No. 1774) Email: hlaird@joneswalker.com Jones Walker LLP 2510 14th Street, Suite 1125 (39501) Post Office Drawer 160 Gulfport, MS 39502 Telephone: (228) 864-3094 Facsimile: (228) 864-0516 Alan Mitchell Purdie, Esquire Email: apurdie@purdieandmetz.com Dion Jeffery Shanley, Esquire Email: dshanley@purdieandmetz.com Purdie & Metz, PLLC Post Office Box 2659 Ridgeland, MS 39158 Attorneys for Harold Pizzetta Margaret P. Ellis, Esquire Special Assistant Attorney General P.O. Box 1850 Jackson, MS 39215 Email: mellis@mdot.ms.gov Attorney for Attorney General Jim Hood Chancellor Jennifer T. Schloegel Post Office Box 986 Gulfport, MS 39502 S/ Henry Laird Henry Laird {GP094935.1}9