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Case: 25CH1:15-cv-001262

Document #: 4

Filed: 09/17/2015

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IN THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT


HINDS COUNTY, MISSISSIPPI

IN RE:

PETITION OF RENAISSANCE AT COLONY PARK, LLC FOR


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

MOTION TO INTERVENE AND VACATE PROTECTIVE ORDER

Gannett River States Publishing Corp. d/b/a The Clarion-Ledger (The Clarion-Ledger)
respectfully requests the Courts permission to intervene pursuant to Miss. R. Civ. P. 24 and for
the Court to vacate the Protective Order it issued on September 3, 2015. The Protective Order
should be vacated because Miss. Code Ann. 57-1-14(1) does not protect from disclosure the
records of the Renaissance at Colony Park, LLC (Renaissance) that it submitted to the
Mississippi Development Authority (MDA). In support of this Motion, The Clarion-Ledger
states the following:
1.

This case concerns the taxpayers right to know how their tax dollars are spent as

reflected in public records.


2.

The Renaissance is a private development in Ridgeland, Mississippi. Through the

Tourism Project Incentive Program, Miss. Code Ann. 57-26-1 et seq., taxpayer dollars finance
part of the construction costs for the private development. How this works is that the developer
receives a portion of the sales tax revenues generated by sales at the development. Id. at 57-263. The developer then uses these sales tax revenues pay for part of the construction costs. Id.
3.

Significant taxpayer dollars are involved. Under the program, taxpayer dollars can

finance up to 30% of approved construction costs for a private development. Id. In the case of

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Case: 25CH1:15-cv-001262

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Filed: 09/17/2015

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the Renaissance, it appears from a redacted copy of a portion of its application to the MDA that
$29,594,938 in taxpayer dollars will help finance its construction costs. (Redacted Application,
Ex. A) As significant taxpayer dollars are involved in this private development, information
about the development is important to the public and the readership of The Clarion-Ledger. In
short, they have a right to know how their monies are being spent.
4.

Accordingly, on August 19, 2015, The Clarion-Ledger submitted a public records

request to the MDA for any and all information relating to the Renaissance (Phase II and phase
III), including, but not limited to, the cultural tax rebate[]. (Request, Ex. B) On August 28,
2015, the MDA responded to The Clarion-Ledger to advise that it had found 3650 pages of
public records responsive to the request, but that some of the documents might contain
confidential information and need to be redacted in accordance with Miss. Code Ann. 25-615(2) 1 and that some of the pages might need to be separated in accordance with Miss. Code Ann.
25-61-9(2) 2. (MDA Response, Ex. C) (emphasis added) The MDA also stated that [p]ursuant
to Section 25-61-9(1), MDA is required to notify the [Renaissance] that, unless a protective order
is obtained before October 1, 2015, said separated documents shall be made available along with
unredacted copies. Id. The MDA never cited Section 57-1-14(1) for the proposition that the

That provision reads:


(2) If any public record contains material which is not exempted under this chapter, the public
agency shall redact the exempted and make the nonexempted material available for examination.
Such public agency shall be entitled to charge a reasonable fee for the redaction of any exempted
material, not to exceed the agency's actual cost.

That provision reads:


(2) If any public record which is held to be exempt from disclosure pursuant to this chapter
contains material which is not exempt pursuant to this chapter, the public body shall separate the
exempt material and make the nonexempt material available for examination and/or copying as
provided for in this chapter.

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Case: 25CH1:15-cv-001262

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documents could not be produced in their entirety, and its response even states that some of the
documents are public records that are capable of production after separation and redaction.
5.

On September 3, 2015, the Renaissance filed its Petition for Protective Order,

relying primarily on Section 57-1-14(1). (Petition, Ex. D) That same day, with no notice to The
Clarion-Ledger whose public records request was pending, (Hall Affidavit, Ex. E), the
Renaissance also had the matter heard before Court and obtained the Protective Order at issue.
(Protective Order, Ex. F) The Clarion-Ledger has a right to now intervene pursuant to Miss. R.
Civ. P. 24 because the Protective Order prevents it from obtaining the information it sought it its
Request.
6.

The Court should vacate the Protective Order solely on the basis that the

Renaissance did not provide The Clarion-Ledger with notice of the Petition and hearing.
Although a protective order is a different form of legal relief than a preliminary injunction or a
temporary restraining order, it is similar in that it prevents parties from taking certain actions,
and Miss. R. Civ. P. 65 requires notice to adverse parties for preliminary injunctions. Rule 65
also requires notice for temporary restraining orders unless one of two exceptions, not applicable
here, are met. 3 Miss. R. Civ. P. 26(d) and the Mississippi Public Records Act of 1983 do not
address whether notice to an adverse party is required before obtaining a protective order, but
The Clarion-Ledger submits that the Court should hold that such a requirement is implied to
exist under Rule 65 and the public records statutes, just as it exists when obtaining other forms of

Miss. R. Civ. P. 65(b) states :


A temporary restraining order may be granted, without notice to the adverse party or his attorney
if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will result to the applicant before the adverse
party or his attorney can be heard in opposition, and (2) the applicants attorney certifies to the
court in writing the efforts, if any, which have been made to give the notice and reasons
supporting his claim that notice should not be required.

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Case: 25CH1:15-cv-001262

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legal relief such as preliminary injunctions or temporary restraining orders. Concerns of


constitutional due process and judicial efficiency weigh in favor of holding there is a notice
requirement.
7.

Without the benefit of The Clarion-Ledgers presence at the hearing and the

opportunity to oppose the Renaissances Petition, as well as others who also had pending public
records requests for the Renaissances information, (Requests, Ex. G), the Renaissance glossed
over the actual words of the statute and attributed to it a meaning that is broader than what the
Legislature intended.
8.

Miss. Code Ann. 57-1-14(1) states:

Any records of the Department of Economic and Community Development 4 which


contain client information concerning development projects shall be exempt from
the provisions of the Mississippi Public Records Act of 1983 for a period of two
(2) years after receipt of the information by the department.
The statutory provision only states that records of the MDA are exempt from public records
disclosure. It does not state that records of other parties submitted to the MDA are exempt from
public records disclosure. The provision is meant to exempt from public records disclosure
internally created MDA documents, and not the documents of other parties submitted to the
MDA.
9.

This reading of the statute should be apparent from the MDAs Response to The

Clarion-Ledgers request. The MDA never even cited Section 57-1-14(1) when asked for the
Renaissances records. (MDA Response at p. 1) Likely the Renaissances broad reading of
Section 57-1-14(1) had never occurred to the MDA because the Renaissances reading of that
statutory provision renders meaningless Section 57-1-14(2). Section 57-1-14(2) reads:

The MDA was formerly known as the Department of Economic and Community Development.

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Case: 25CH1:15-cv-001262

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Confidential client information in public records held by the department shall be


exempt from the provisions of the Mississippi Public Records Act of 1983 during
the period of review and negotiation on a project proposal and for a period of
thirty (30) days after approval, disapproval or abandonment of the proposal not to
exceed one (1) year by the department in writing.
10.

It is Section 57-1-14(2) that protects a developers ability to negotiate with the

State and the States ability to attract economic development, and not Section 57-1-14(1) as
argued by the Renaissance. Section 57-1-14(2) is entirely unnecessary if any records of the
MDA in Section 57-1-14(1) is interpreted so broadly as to mean it includes the records of other
parties submitted to the MDA, and that they are to remain confidential for a period of two years.
There would simply be no need for parties to seek confidentiality of records under Section 57-114(2) for a period of time not to exceed one year. Ascribing this broad meaning to Section 57-114(1), which would render meaningless Section 57-1-14(2), would violate the well-established
rule of statutory construction that Courts are not at liberty to ascribe to any statute a
construction which would make a part of it, in some cases, meaningless and ineffective if another
reasonable construction can be found which would give it meaning and effectiveness in all cases
within its purview. Davis v. Miller, 32 So. 2d 871, 873 (Miss. 1947). [T]his Court is obliged,
whenever reasonable, to reach an interpretation which gives effect to all the statutory language,
Gilmer v. State, 955 So. 2d 829, 835 (Miss. 2007), which applied here means that only the
records of the MDA, and not the records of other parties submitted to the MDA, are exempt from
disclosure under Section 57-1-14(1).
11.

Employing this well-established rule of statutory construction in favor of

disclosure also achieves two principles set forth by the Mississippi Supreme Court: (1) there is
to be a liberal construction of the general disclosure provisions of a public records act, whereas a
standard of strict construction is to be applied to the exceptions to disclosure; [and] (2) any doubt

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Case: 25CH1:15-cv-001262

Document #: 4

Filed: 09/17/2015

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concerning disclosure should be resolved in favor of disclosure. Miss. Dep't of Wildlife v. Miss.
Wildlife Enforcement Officers' Assoc., Inc., 740 So.2d 925, 936 (Miss. 1999).
12.

Finally, the Renaissance has made no showing that any of the requested

information contains trade secrets or confidential commercial or financial information as set


forth in Miss. Code Ann. 25-61-9(1) or 79-23-1(1), nor has The Clarion-Ledger even been
provided access to redacted copies of the 3650 pages of public records found by the MDA to
be responsive to the Request. For all of the reasons set forth above, the Protective Order should
be vacated.
13.

In the alternative, even if the Court adopts the Renaissances broad reading of

Section 57-1-14(1), the requested records become public under the statute on December 24,
2015. 5 On its tax rebate application to the MDA, the Renaissance stated it applied on December
23, 2013. (Redacted Application at p. 1) Section 57-1-14(1) states that the records addressed by
the statute shall remain protected for a period of two (2) years after receipt of the information
by the department. Presumably, the MDA received the application on or about December 23,
2013, the date affixed to the application. Accordingly, even if the Court adopts the Renaissances
interpretation of Section 57-1-14(1), The Clarion-Ledger respectfully requests the Court modify
the Protective Order so as to remain in effect only until December 24, 2015.
ACCORDINGLY, The Clarion-Ledger respectfully requests the Court issue an Order
vacating the September 3, 2015 Protective Order of this Court. In the alternative, The ClarionLedger respectfully requests the Court modify the Protective Order so as to remain in effect only

Should the Court adopt this reading Section 57-1-14(1), then 57-1-14(2) becomes meaningless. Accordingly,
Section 57-1-14(2)s shorter timetable during which some information can be exempt from disclosure need not be
discussed. The two year window in Section 57-1-14(1) would trump the one year maximum window in Section 571-14(2) which, on information and belief, expired in June of 2015, i.e., one year after the applications approval in
June of 2014.
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until December 24, 2015. The Clarion-Ledger further request such other relief as the Court
deems appropriate.
THIS, the 17th day of September, 2015.
Respectfully submitted,
GANNETT RIVER STATES PUBLISHING
CORP. D/B/A THE CLARION-LEDGER

By:

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

02154862

/s/ Leonard D. Van Slyke


One of Its Attorneys

Case: 25CH1:15-cv-001262

Document #: 4

Filed: 09/17/2015

Page 8 of 8

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

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

Charles Bush, M.D.


454 Greenwood Lane
Ridgeland, MS 39157

cbushmd@aol.com

Jimmy Hendrix
5106 Old Canton Road
Jackson, MS 39211

kingfish1935@gmail.com

Pursuant to Miss. Code Ann. 25-61-13, the Mississippi Ethics Commission is also
being served via first class mail, U.S. postage prepaid, a true and correct copy of the foregoing
document for informational purposes at the following address:
Mississippi Ethics Commission
Attn: Tom Hood, Executive Director
660 North Street, Suite 100-C
Jackson, MS 39202
THIS, the 17th day of September, 2015
/s/ Leonard D. Van Slyke
LEONARD D. VAN SLYKE

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