OF JUDGMENT: 09/15/2016
CHANCERY COURT OF THE FIRST, JOHN DAVID SANFORD JUDGE.
COURT ATTORNEYS: JOHN DAVID SANFORD MARC E. BRAND GENE W.
GARDNER ROBERT MOAK.
ATTORNEYS FOR APPELLANT: GENE W. GARDNER ROBERT MOAK.
ATTORNEYS FOR APPELLEE: JOHN DAVID SANFORD BRETT R. KOEHN.
KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
KITCHENS, PRESIDING JUSTICE.
John Morgan submitted a public records request to the
Mississippi State Hospital ("MSH") after it had
awarded a contract for insurance plan administration to XLK
International, LLC (XLK). Morgan, whose bid for the insurance
plan administration contract had been unsuccessful, demanded
access to all documents XLK had submitted in response to the
state hospital's request for proposal (RFP). XLK sought
and obtained a protective order in the Chancery Court of the
First Judicial District of Hinds County. The chancery court
allowed Morgan to intervene and held a hearing on his Motion
to Set Aside Protective Order. The chancery court ruled that
the documents XLK had submitted in response to MSH's RFP
were not subject to disclosure under the Mississippi Public
Records Act, with the exception of the contract between MSH
and XLK. Because the chancery court correctly applied the
Mississippi Public Records Act, this Court affirms its
AND PROCEDURAL HISTORY
The Mississippi Department of Mental Health at the
Mississippi State Hospital published an RFP under Mississippi
Code Section 25-15-301 (Rev. 2010), in which it sought
proposals for administration of group insurance plans for
state employees. On July 24, 2014, XLK responded to the RFP
by submitting its proposal to MSH. Ultimately, MSH awarded
the contract for insurance plan administration to XLK.
On October 23, 2015, MSH notified XLK that a public records
request had been submitted by John Morgan. Morgan sought a
copy of the successful proposal. MSH informed XLK that,
without a protective order, it would turn over XLK's
proposal to Morgan. In response, on October 28, 2015, XLK
filed its Petition for a Protective Order in the Chancery
Court of the First Judicial District of Hinds County. XLK
argued that, "[w]ithin the Proposal and all other
submitted documents including, but not limited to, quotes,
complimentary product packages, and presentation handouts,
XLK included trade secrets and confidential commercial and
financial information of a proprietary nature."
According to XLK, "[i]f any of this information is
divulged to its competitors, XLK will lose its competitive
edge in an extremely competitive business." Attached to
the Petition for a Protective Order was an affidavit from
James M. Knox, XLK's president, attesting that disclosure
of the proprietary information belonging to XLK contained in
the documents submitted in response to the RFP "would
harm XLK International, LLC's ability to compete in the
insurance administration business."
On October 28, 2015, the chancery court entered a protective
order, holding that "[t]he Proposal and all other
documents submitted to the Mississippi State Hospital and
Department of Mental Heath, State of Mississippi, contain
trade secrets and financial information of a proprietary
nature, which are exempt from the Mississippi Public Records
Act" under Mississippi Code Section 25-61-9.
On January 13, 2016, Morgan filed a Motion to Intervene under
Mississippi Rule of Civil Procedure 24, arguing that he had a
right to examine what he claimed to be public records and
that the protective order deprived him of that right. Morgan
attached to his Motion to Intervene a Motion to Set Aside
Protective Order, in which he argued that "[r]outine
insurance quotes and a recitation of services to be provided
by an insurance agency are not confidential, nor proprietary,
and[, ] therefore, should be accessible [to] the public at
Following a hearing on February 24, 2016, the chancery court,
on February 29, 2016, entered an order granting Morgan's
Motion to Intervene. The chancery court continued
"Morgan's Motion to Set Aside Protective Order is
ordered filed and the parties are directed to set this matter
for full hearing on Morgan's Motion."
A hearing was held before the chancery court on August 9,
2016, on Morgan's Motion to Set Aside Protective Order.
The court entered a final order on September 15, 2016, in
which it held, on the basis of Mississippi Code Section
25-61-9(1), that documents submitted by XLK in response to
the RFP "contain trade secrets or confidential
commercial or financial information . . . ." The
chancery court recognized, however, the "exception set
forth in Miss. Code Ann. § 25-61-9(7)," and,
accordingly, amended the October 28, 2015, protective order
"to allow disclosure of the 'Agreement Between
Mississippi State Hospital of Whitfield Mississippi (MSH) and
XLK International, LLC[, ]' a seven (7) page document
signed by XLK on September 25, 2016." The court held
that "[t]his 'Agreement' constitutes a
'contract which contain[s] the commodities purchased or
the personal or professional services provided, the price to
be paid, and the term of the contract.'"
Accordingly, while "MSH and/or the Mississippi
Department of Mental Health shall be permitted to disclose
said 'Agreement' in its entirety of Morgan in
response to his Public Records Request, '" the
"other documents submitted by XLK shall remain protected
and exempt from disclosure under the October 28, 2015[, ]
Protective Order." Morgan filed a notice of appeal on
October 14, 2016.
Motion to Docket and Dismiss Appeal
XLK filed, on May 18, 2017, a Motion to Docket and Dismiss
Appeal and Motion to Stay Briefing Schedule Pending Ruling on
Instant Motion. XLK argued that, because Morgan's Motion
to Set Aside Protective Order had been filed only as an
attachment to his Motion to Intervene, XLK was deprived of
the opportunity to respond to the Motion to Set Aside
Protective Order. XLK acknowledges that it "is not
representing that it did not have notice of the underlying
Motion to Set Aside Protective Order." XLK also
represented that "the only issue on appeal, whether or
not Appellant is entitled to the pricing component of a
procurement contract pursuant to Miss. Code Ann. 25-61-9(7),
is moot since there was no price paid by the State of
Mississippi to Appellee."
Morgan responded that the trial court had ordered the Motion
to Set Aside Protective Order filed, so no reason existed for
his refiling "the Motion which had already been ordered
filed by the Chancellor." Moreover, Morgan averred that
XLK, following the February 29, 2016, order permitting Morgan
to intervene and ordering filed his Motion to Set Aside
Protective Order, had waived any procedural objection by not
raising the issue before the trial court. With regard to
XLK's mootness argument, Morgan responds that XLK