Case: 25CH1:15-cv-001262

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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

RESPONSE IN OPPOSITION TO MOTION TO

INTERVENE AND VACATE PROTECTIVE ORDER

COMES NOW, Renaissance at Colony Park, LLC (Renaissance and Petitioner), by

and through counsel, and opposes the Motion to Intervene and Vacate Protective Order filed by
Gannett River States Publishing Corp. d/b/a The Clarion-Ledger (Motion to Intervene)[Doc.
No. 4]. Renaissance prays that the Court will deny The Clarion-Ledgers Motion and in support
of this prayer for relief, would show the following:
FACTUAL BACKGROUND
1.

On or about December 23, 2013, Renaissance submitted an application for a

proposed development, the Renaissance Mississippi Retail and Art Development (Renaissance
Application), pursuant to the Mississippi Tourism Tax Rebate Program (Rebate Program).
The Rebate Program provides a tax rebate to qualified applicants of new tourism-oriented
enterprises to be paid to the applicant to reimburse the applicant for certain eligible costs
incurred during the construction of the project. See Miss. Code Ann. 57-26-1, et seq.; see also
Tourism

Rebate

Program

(available

at

http://www2.mississippi.org/mda-library-

resources/finance-tax-info/tax-exemptions-incentives-and-credits/tourism-rebate-program.html )
(last accessed October 5, 2015).

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2.

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On August 21, 2015, MDA sent notice to an agent for Renaissance that the

agency had received a public records request from James Hendrix, requesting all applications
for sales tax rebates or sales and use tax rebates for tourism projects submitted since January 1,
2013. Letter from R.Cole to C.Gouras, August 21, 2015 (Ex. A). MDA gave Petitioner until
September 21, 2015, to obtain a court order to protect the Renaissance Application. Id.
3.

The August 21 letter did not mention that, by this time, MDA had received other

requests related to the Renaissance Application, including one from The Clarion-Ledger. The
Clarion-Ledgers request came in the form of a letter to MDA from Sarah Fowler, requesting
any and all information relating to the Renaissance (Phase II and phase III), including, but not
limited to, the cultural retail tax rebate. See Letter from S. Fowler to J. Rent, August 19, 2015
(Ex. B).
4.

On August 22, 2015, Mr. Hendrix posted a redacted copy of the Renaissance

Application, without attachments, on his blog without any notice to Renaissance.

See

Renaissance Applied for Sales Tax Rebates, Jackson Jambalaya, August 22, 2015 (Ex. C).
5.

MDA responded to The Clarion-Ledgers request on August 28, 2015, reporting

that it had located approximately 3650 pages of public records responsive to your request.
Letter from J. Rent to S. Fowler, August 28, 2015 (Ex. D). Pursuant to Miss. Code Ann. 2561-5(2),1 the agency estimated the total cost to provide these documents to be $1,162.50
($.25/page plus the expense for 5 hours of attorney review time). Id. MDA further informed The
Clarion-Ledger that upon payment of the requested amount copies of the 3,650 pages would be

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. Miss. Code Ann. 25-61-5(2).
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provided. Id. Renaissance was not copied on this letter and did not obtain a copy until much
later (discussed, infra).
6.

The Clarion-Ledger, apparently, chose not to pay the MDA fee. Instead, the

newspapers reporter revised her previous public records request, as follows: As we talked
about Friday, I would like a copy of the application(s) relating to Mattaice [sic] and the cultural
retail tax. Also, I would like to personally inspect the documents. Email from S. Fowler to J.
Rent, September 1, 2015 (Ex. E).
7.

MDA did not provide a copy of the Clarion-Ledgers original public records

request to Renaissance until September 2, 2015. On that date MDA notified Renaissances
counsel by phone that it had received additional requests for information regarding the
Renaissance Application, including one from The Clarion-Ledger. See Petition, Ex. B.
8.

Renaissance filed its Petition for Protective Order in this cause on September 3,

2015 [Doc. No. 2], citing three statutory exemptions from the Mississippi Public Records Act
Miss. Code Ann. 57-1-14, 25-6-19 and 79-23-1 all of which are provided for in MDAs
public records procedures. See 2006 MS Regulation Text 10691 (Ex. F). An order granting
relief was presented that same day by Renaissances counsel ex parte to Chancellor William
Singletary for consideration and the Court entered the proposed Protective Order [Doc. No. 3].2
9.

On September 4, 2015, MDA responded to the Clarion-Ledgers revised request,

releasing seven (7) pages of the Renaissance Application. See Exhibit A to Clarion-Ledger
Motion. MDA released the application without giving notice to Renaissance, with minimal

The Court entered an Amended Protective Order on October 5, 2015 [Doc. No. 7].

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redactions, and before the September 21st deadline it gave to Renaissance to obtain a protective
order.
10.

On September 10, 2015, The Clarion-Ledger reported that it had made a public

records request to MDA to obtain certain Renaissance documents.

See Sarah Fowler,

Renaissance Developer Gets Public Records Sealed, The Clarion-Ledger, September 10, 2015
(Ex. G). The article further stated: On September 1, MDA responded and said approximately
3650 pages of public records were responsive to the request.

Id.

Prior to this time

Renaissance was unaware that MDA was in possession of approximately 3,650 pages of
potentially responsive documents. To date, MDA, Renaissance and the Clarion-Ledger have not
reviewed the 3,650 pages referenced in the agencys August 28, 2015, letter.3
11.

Subsequent to the publication of The Clarion-Ledgers article, MDA provided

Renaissance with a copy of the newspapers revised request (Ex. E) and the agencys August 28,
2015 letter (Ex. D).
12.

The Clarion-Ledger has published various articles concerning the Renaissance

public records dispute, including a news report in which the Executive Editor called the entry of
the Protective Order asinine, absurd and ludicrous. Fowler, supra (Ex. G). Two days later the
editor further opined that Renaissance had sought to circumvent open records laws and found a
Hinds County judge willing to help them do it. Sam R. Hall, Hall: Transparency Clearly Not
Valued at Renaissance, The Clarion-Ledger, September 12, 2015 (Ex. H).

Upon information and belief, the MDAs estimate was obtained by using search terms queried
to an electronic database. MDA has represented to the parties and the Court at a status
conference held on September 24, 2015, that it has not reviewed the actual documents to
determine if they are responsive.
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13.

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The redacted information and the attachments to the Renaissance Application (not

produced to requestors by MDA, to-date) concern not only a development project[] as

contemplated by Miss. Code Ann. 57-1-14, but also include confidential and financial
information of a proprietary nature and records containing trade secrets or confidential
commercial or financial information, which are exempt from the Mississippi Public Records law.
See Miss. Code Ann. 25-61-9, 57-1-14 and 79-23-1.
ARGUMENTS
Renaissance Was Not Required to Give Notice to the Clarion-Ledger.
14.

The Clarion-Ledger argues that the Protective Order should be vacated because it

was not provided notice of the Renaissance Petition and hearing. See Motion to Intervene at pp.
3-4. However, the Clarion-Ledger is also forced to admit, as it must, that the Mississippi Public
Records Act of 1983 (Public Records Act) does not require prior notice to a requesting party.
Id.; see also Miss. Code Ann. 25-61-9(1). The same is true with regard to the economic
development confidentiality statute. See Miss. Code Ann. 57-1-14.
15.

Further, The Clarion-Ledger has suffered no prejudice because the Protective

Order (and Amended Protective Order) are not final judgments. Both orders state quite plainly
that they are to remain in force only until revoked or replaced by another order. Protective
Order [Doc. No. 3] and Amended Protective Order [Doc. No. 7].
16.

The newspaper also argues that Miss. R. Civ. P. 65 requires notice. However,

Rule 65 only applies to injunctions, not protective orders. Moreover, Rule 65 is a rule of
procedure that cannot overrule the Public Records Act, substantive law enacted by the
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Mississippi Legislature and signed into law by the Governor. McDonald v. McDonald, 683 So.
2d 929, 934 (Miss. 1996) (holding that it was improper for judge to utilize the rules of procedure
to circumvent substantive law). Therefore, the failure to provide notice to a requestor under the
Public Records Act, notice that is not required by statute, cannot be a basis to vacate this Courts
Protective Order.
Section 57-1-14 Supersedes the Public Records Act.
17.

Renaissance petitioned this Court for a Protective Order based on the exemptions

from the Public Records Act found in Miss. Code Ann. 57-1-14, 25-61-9 and 79-23-1, as well
as MDAs Public Records Procedures, which cite to all three statutory exemptions. See 2006
MS Regulation Text 10691 (Ex. F).4 Renaissance submitted its application and supporting
attachments for the Rebate Program upon the reasonable belief that the proprietary information
in the project proposal it submitted to MDA would be subject to the protections afforded to
development projects and confidential financial and commercial information.
18.

Section 57-1-14(1) is a broad exemption for any agency records that contain client

information concerning development projects:

Any records of the Department of Economic and Community Development which
contain client information concerning development projects shall be exempt from
the provisions of the Mississippi Public Records Act of 1983 for a period of two
(2) years after receipt of the information by the department.

Some documents exempted from public records requests include, but are not limited to,
personnel records, trade secrets, confidential commercial and financial information of a
proprietary nature as set out in Section 25-61-9, Section 79-23-1, Miss. Code Ann. and records
containing confidential client information and project proposals as set out in Section 57-1-14,
Miss. Code Ann. MDA Public Records Policy (available at https://www.mississippi.org/homepage/about-mda/privacylegal/ ) (last accessed October 5, 2015).
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Miss. Code Ann. 57-1-14(1) (emphasis supplied). Under this exemption Renaissance is not
required to show that the records are confidential, only that they concern a development project.
Further, the exemption automatically applies for a period of two (2) years after receipt by the
agency.
19.

Section 57-1-14(2), on the other hand, protects confidential client information

in MDAs records:
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.
Miss. Code Ann. 57-1-14(2) (emphasis supplied). It is important to note that the period of
exemption in this statute is not tied to receipt of records, unlike the previous section. Rather, it
applies during the entirety of the consideration of the project, and up to one year afterwards.
Any other reading would render the meaning of the statute nonsensical, in that confidential
information could be released after one year, while non-confidential information would be
automatically protected for two years. If unambiguous, the court applies the plain meaning of
the statute and refrains from the use of statutory construction principles. Tillis v. State, 43 So.
3d 1127, 1131 ( 9) (Miss. 2010); see also Lawson v. Honeywell Int'l., Inc., 75 So. 3d 1024, 1030
( 17) (Miss. 2011) ("This Court 'cannot . . . add to the plain meaning of the statute or presume
that the legislature failed to state something other than what was plainly stated.'") (quoting His
Way Homes, Inc. v. Miss. Gaming Commn., 733 So. 2d 764, 769 ( 20) (Miss. 1999)). If the
court considers the time period ambiguous, construction requires that it be construed to make all
its parts harmonize with each other, and render them consistent with its scope and object. Legis.
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of the State of Miss. v. Shipman, 170 So. 3d 1211, 2015 Miss. LEXIS 416 (P18) (Miss. 2015)
(We must give statutes the construction that effectuate their purposes rather than . . . defeat
them.) (quoting Brady v. John Hancock Mut. Life Ins. Co., 342 So. 2d 295, 303 (Miss. 1977)).
Therefore, this provision applies, not for a period of two years from receipt of the materials, but
during the entire period MDA is considering the project and, potentially, for a period of one year
afterwards. Thus, the information that Petitioner included as part of the Renaissance Application
is exempt from the Public Records Act under both subsections of 57-1-14 until at least
December 23, 2015 (two years following submission) and, potentially, longer, depending on how
long it takes the agency to approve or disapprove the Development Project.
20.

Both provisions clearly supersede the Public Records Act. See Miss. Code Ann.

25-61-11 (The provisions of this chapter shall not be construed to conflict with, amend, repeal
or supersede any statutory law which at the time of this chapter is effective or provides
that a public record shall be exempt from the provisions of this chapter.); see also Buckel v.
Chaney, 47 So. 3d 148, 159 (Miss. 2010) (holding that the Public Records Act reserved for the
Legislature a broad general right to create statutory exceptions).
21.

Although, the Clarion-Ledgers request may not have been submitted by a

potential competitor of Renaissance, the law makes no distinction. Section 57-1-14 must be read
as requestor-neutral, as requests can be made directly or indirectly by competitors or others who
seek confidential information associated with economic development projects. Once published,
such information could be accessed by a developers competitors.

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Commercial and Financial Information of a Proprietary Nature and

Records Containing Trade Secrets or Confidential Commercial or
Financial Information Are Also Protected From Disclosure
22.

The Clarion-Ledger argues that because Renaissance has made no showing that

any of the requested information contains trade secrets or confidential commercial or financial
information. . . . However, The Clarion-Ledgers argument completely overlooks the fact that
Renaissance not only cited two additional exceptions to the Public Records Act, Miss. Code
Ann. 25-61-9 and 79-23-1, but also supported them with an affidavit supplied by the
Managing Member of Renaissance, Andrew Mattiace. See Petition at 10-14 [Doc. No. 2].
23.

Miss. Code Ann. 25-61-9 protects trade secrets or confidential commercial or

financial information from inspection, examination, copying or reproduction . . . . Miss. Code

Ann. 79-23-1 provides that [c]ommercial and financial information of a proprietary nature is
exempt from provisions of the Mississippi Public Records Act of 1983 . . . . Exemptions under
these statutes are not time-limited in duration.
24.

The Clarion-Ledgers revised request seeks a copy of the Renaissance

Application. See email from S. Fowler (Ex. E). Renaissance has this day filed a Motion for In
Camera Review, to allow for the Chancery Courts inspection of the complete Renaissance
Application.

If the Court determines that documents should be protected from disclosure

pursuant to Sections 57-1-14, 25-61-9, or 79-23-1 the documents and the information they
contain will be exempt from the Public Records Act.
25.

Should The Clarion-Ledger renew its original request to MDA and pay the

required fee, Renaissance will be entitled to notice and an opportunity to inspect the requested
documents to determine whether they fall within the parameters of the existing Protective Order
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and Amended Protective Order and a reasonable period of time to obtain another protective
order, should it decide to do so. Miss. Code Ann. 25-61-9(1). Renaissance will submit those
documents it contends fall within the previously recited exceptions to the Public Records Act for
in camera review and decision by the Chancery Court.
WHEREFORE, PREMISES CONSIDERED, Renaissance at Colony Park, LLC
respectfully prays that The Clarion-Ledgers Motion to Intervene and Vacate Protective Order be
denied in its entirety and that the Protective Order and Amended Protective Order remain in full
force and effect pending the Chancery Courts in camera review of the documents in question;
PETITIONER FURTHER PRAYS that the Court to grant any and all further relief to
which it may be entitled.
Respectfully submitted, this the 6th day of October, 2015.
RENAISSANCE AT COLONY PARK, LLC

s/ Amanda J. Tollison
Mark W. Garriga (MB #4762)
Amanda Jones Tollison (MB #10313)
ITS ATTORNEYS
OF COUNSEL:
BUTLER SNOW, LLP
1020 Highland Colony Parkway, 14th Floor
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
(T) (601) 948-5711
(F) (601) 985-4500
(E)
mark.garriga@butlersnow.com
amanda.tollison@butlersnow.com

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CERTIFICATE OF SERVICE
I, Mark W. Garriga, do hereby certify that I have this date electronically filed the above
and foregoing document with the Clerk of the Court using the ECF system, which sent
notification of such filing to those who have entered appearances in this matter and registered for
ECF filing.

This the 6th day of October, 2015.

/s Amanda J. Tollison______________
Amanda J. Tollison

ButlerSnow 27861722v5

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