CELLULAR SOUTH, INC.
BELLSOUTH TELECOMMUNICATIONS, LLC, f/k/a BELLSOUTH TELECOMMUNICATIONS, INC. AND SUCCESSOR BY MERGER TO BELLSOUTH MNS, INC.
OF JUDGMENT: 12/10/2015
COUNTY CHANCERY COURT, TRIAL JUDGE: HON. WILLIAM H.
ATTORNEYS FOR APPELLANT: SHELDON G. ALSTON JOHN ERNEST WADE,
JR. JOSEPH ANTHONY SCLAFANI MATTHEW WADE ALLEN
ATTORNEYS FOR APPELLEE: GORDON URBAN SANFORD, III ADAM H.
In February 2006, BellSouth Telecommunications, Inc., and
BellSouth MNS, Inc., filed an ex parte motion for a
protective order in the Chancery Court for the First Judicial
District of Hinds County. The documents sought to be
protected fell into the following four categories: (1) an
August 2005 proposal submitted by BellSouth to the
Mississippi Department of Information Technology Services in
response to the Department's request for
telecommunications products and services, (2) the
Telecommunications Products and Service Agreement between
BellSouth and the Department dated November 2005, (3)
correspondence between BellSouth and the Department related
to the first two documents, and (4) related BellSouth
marketing materials. Following legislative amendments in 2015
to the Mississippi Public Records Act of 1983 and to
Mississippi Code Section 25-1-100, CellularSouth sought
production of the proposal and the contract between the
Department and BellSouth. As more fully detailed below, we
hold that the chancery court erred in its interpretation of
the amended Mississippi Code Section 25-61-11 when it entered
an order continuing to protect the contract from production.
We further hold that, because the rights in question in the
case sub judice are created by statute, the Public
Records Act, as amended, governs the instant dispute.
Accordingly, we reverse and remand for further proceedings
consistent with our opinion.
In July 2015, CellularSouth filed its Petition to Revoke
Protective Order in which it contended that two amendments to
the Public Records Act and to Mississippi Code Section
25-1-100, made after the 2006 entry of the protective order,
rendered the August 2005 proposal and resulting contract
subject to production pursuant to the Public Records Act.
House Bill Number 825, passed by the Legislature in 2015,
amended Section 25-61-9 to add a new Subsection 7. The new
subsection reads as follows:
For all procurement contracts awarded by state agencies, the
provisions of the contract which contain the commodities
purchased or the personal or professional services provided,
the price to be paid, and the term of the contract shall not
be deemed to be a trade secret or confidential commercial or
financial information under this section, and shall be
available for examination, copying or reproduction as
provided for in this chapter.
bill added a new Subsection 5 to Section 25-1-100, which
reads as follows:
Contracts for personal and professional services that are
awarded or executed by any state agency, including, but not
limited to, the Department of Information Technology Services
and the Department of Transportation, shall not be exempt
from the Mississippi Public Records Act of 1983. CeullarSouth
contends that the amended provisions operate to remove
protected status from the sought-after proposal and contract.
In order to stave off CellularSouth's attempt to force
production of the contract and proposal, BellSouth contended
below and contends on appeal that Mississippi Code Section
25-61-11 insulates the 2006 protective order against
subsequent amendments to the Public Records Act. Section
25-61-11 reads as follows:
The provisions of this chapter shall not be construed to
conflict with, amend, repeal or supersede any constitutional
law, state or federal statutory law, or decision of a court
of this state or the United States which at the time of this
chapter is effective or thereafter specifically declares a
public record to be confidential or privileged, or provides
that a public record shall be exempt from the provisions of
Of course, Section 25-1-100 is not found within "this
chapter, " or Title 25, Chapter 61, of the Mississippi
Code, so BellSouth's argument does not avail it there.
However, BellSouth contends that, as Section 25-61-9
is part of Chapter 61, the amendment to it cannot
"be construed to . . . repeal" it.
Below, the trial court agreed with BellSouth. In denying
CellularSouth's Petition to Revoke the 2006 protective
order, the trial court wrote:
The plain language of [Section 25-61-11] provides that the
subject amendments should "not be construed to conflict
with, amend, repeal or supersede" the 2006 Order of this
Court which specifically declared the documents sought herein
as "confidential and privileged" and "exempt
from the provisions of this chapter." Therefore, the
Court must find that the 2015 amendments do not act to remove
the exemption from disclosure granted by the 2006 Order.
reasons given below, we hold that the trial court erred in
interpreting Section 25-61-11 as it did.
Interpretation of Mississippi ...