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Cellular South, Inc. v. Bellsouth Telecommunications, LLC

Supreme Court of Mississippi, En Banc

March 2, 2017

CELLULAR SOUTH, INC.
v.
BELLSOUTH TELECOMMUNICATIONS, LLC, f/k/a BELLSOUTH TELECOMMUNICATIONS, INC. AND SUCCESSOR BY MERGER TO BELLSOUTH MNS, INC.

          DATE OF JUDGMENT: 12/10/2015

         HINDS COUNTY CHANCERY COURT, TRIAL JUDGE: HON. WILLIAM H. SINGLETARY

          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. CHARNES

          COLEMAN, JUSTICE.

         ¶1. 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.

         Introduction

         ¶2. 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.

         The 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.

         ¶3. 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 this chapter.

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.

         ¶4. 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.

         For the reasons given below, we hold that the trial court erred in interpreting Section 25-61-11 as it did.

         Analysis

         The Interpretation of Mississippi ...


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