                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2013-CC-00682-SCT

MISSISSIPPI POWER COMPANY

v.

MISSISSIPPI PUBLIC SERVICE COMMISSION
AND BIGGER PIE FORUM, LLC.


DATE OF JUDGMENT:                         04/02/2013
TRIAL JUDGE:                              HON. J. DEWAYNE THOMAS
COURT FROM WHICH APPEALED:                HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  BEN HARRY STONE
                                          RICKY J. COX
                                          LEO ERNEST MANUEL
                                          MICHAEL BRANT PETTIS
                                          TIMOTHY ALAN FORD
ATTORNEYS FOR APPELLEES:                  OFFICE OF THE ATTORNEY GENERAL
                                          BY: WILLIAM JEFFREY JERNIGAN
                                              HAROLD EDWARD PIZZETTA, III
                                          ROBERT P. WISE
                                          DORSEY R. CARSON, JR.
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                              AFFIRMED IN PART; REVERSED IN PART
                                          AND REMANDED - 04/10/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Mississippi Power Company (“Mississippi Power”) filed documents asserting

confidentiality with the Mississippi Public Service Commission (“Commission”) related to

a certificate-of-public-convenience-and-necessity proceeding in January 2009. In July 2012,
Bigger Pie Forum (BPF) requested three of those documents from the Commission, and

Mississippi Power sought a protective order. Following a hearing, Hinds County Chancellor

Dewayne Thomas ordered that the documents be produced. Mississippi Power appealed.

                      FACTS AND PROCEDURAL HISTORY

¶2.   On January 16, 2009, Mississippi Power filed a “Petition for a Certificate of Public

Convenience and Necessity[,]” requesting authority to construct an electric generation

facility in Kemper County, Mississippi (“Kemper Project”).1 Associated with that filing,

Mississippi Power filed documents with the Commission, at least some of which were

marked “confidential.” Ultimately, the Commission approved the Final Certificate Order on

June 3, 2010.

¶3.   On July 3, 2012, Bigger Pie Forum (“Bigger Pie”)2 requested several documents from

the Commission marked confidential by Mississippi Power during the certificate proceeding

in January 2009. On August 6, 2012, the Hinds County Chancery Court granted Mississippi

Power a temporary protective order which prevented the Commission from releasing the

“confidential” documents pending a hearing on the matter. Following a hearing on September

18, 2012, Hinds County Chancellor Dewayne Thomas denied Mississippi Power’s “Petition

for Protective Order” and ordered that the documents be produced within ten days of his




      1
       The Commission filed a brief in this matter but took “no position whether the
requested documents are exempt from disclosure under the Mississippi Public Records Act.”
      2
       Bigger Pie is a media outlet which has covered the Kemper Project extensively and
has expressed disapproval of the project.

                                            2
April 2013 ruling. Subsequently, Mississippi Power filed a “Notice of Appeal” and an

accompanying motion to stay the order pending resolution of the appeal. The chancellor

granted Mississippi Power’s motion to stay.

¶4.    Although the chancery court granted Bigger Pie access to the requested documents,

in its brief to this Court, Bigger Pie “reviewed its requests for disclosure . . . and clarif[ied]

exactly what portions of the three withheld documents it . . . seeks disclosure.” Bigger Pie

narrowed the information at issue to “the long term natural gas price forecast and a

forecast of the economic impact of pending federal legislation of greenhouse gas

emissions.” Bigger Pie seeks the forecast information Mississippi Power presented to the

Commission in support of its choice of the Kemper plant as opposed to the other alternatives

considered, i.e., natural gas and nuclear. Bigger Pie argues, inter alia, that Mississippi

Power’s choice of alternatives directly affects the “rates” that customers will be charged;

therefore, under Mississippi Code Section 79-23-1(1),3 the information should be made

available.

¶5.    Mississippi Power argues that the information does not affect “rates” as contemplated

by statute, and, even if it does affect rates, the information is nonetheless protected as “trade



       3
        See Miss. Code Ann § 79-23-1(1) (Rev. 2013) (“Commercial and financial
information of a proprietary nature required to be submitted to a public body, as defined by
paragraph (a) of Section 25-61-3, by a firm, business, partnership, association, corporation,
individual or other like entity, shall be exempt from the provisions of the Mississippi Public
Records Act of 1983; provided, however, that nothing herein shall be construed to deny
access to such information submitted to a regulatory agency by a public utility that is related
to the establishment of, or changes in, rates regulated by such agency.”)

                                                3
secrets or confidential commercial or financial information,” under Section 79-23-1(2).4

Mississippi Power also argues that the information was presented in a certificate-of-need

(CON) proceeding – not a rate proceeding. Mississippi Power presented the documents under

seal and requested that this Court conduct an in camera inspection, arguing that this case

“involve[s] a straightforward matter of statutory interpretation as applied to the documentary

evidence submitted by the parties.”

¶6.    After the parties had fully briefed the issues before this Court, on October 21, 2013,

Bigger Pie filed a “Motion . . . to Dismiss [Mississippi Power’s] Appeal and Determine

Damages pursuant to Rule 38 MRAP.” Bigger Pie asserted that it had learned, after filing its

brief, that Mississippi Power had provided the same forecast information sought by Bigger

Pie to the Wall Street Journal (WSJ) in July 2012. That information was published in an

article by the WSJ regarding the Kemper project. Bigger Pie further asserted:

       It is apparent that the table[5] of long term natural gas prices and CO2 cost
       assumptions that the WSJ obtained from Southern/MPC . . . is the
       information that BPF sought in its public records request . . . . Further, it is
       apparent that the natural gas price forecast and CO2 cost assumption data
       revealed . . . by Southern/MPC to the WSJ regarding the Kemper IGCC
       constitutes the data BPF sought in un-redacted form . . . .”




       4
        See Miss. Code Ann. § 79-23-1(2) (Rev. 2013) (“Nothing in this section shall be
construed to deny a public utility the right to protect trade secrets or confidential commercial
or financial information, as provided in subsection (1) of Section 25-61-9.”)
       5
       In the WSJ article, the “table” was entitled “Fuel Prices Used in 2009 Kemper
Business Case (Certification Filing).”

                                               4
Bigger Pie sought a damages sanction, arguing that Mississippi Power’s claim of

“confidentiality” was fraudulent in light of the fact that it had released the same information

to the WSJ.

¶7.    Then, the very next day, Bigger Pie filed a motion withdrawing its October 21 motion,

stating that it had conducted a search of its own records and discovered that Bigger Pie had

“received the fuel price data [from Mississippi Power] . . . that the Wall Street Journal has

now published.” As a result of Bigger Pie’s request to narrow the scope of the appeal and

[Bigger Pie’s post-brief revelations[,] it appeared that this appeal may be moot. Thus, on

December 13, 2013, this Court ordered “that the parties shall show cause why this

proceeding should not be dismissed as moot and vacate the order of the chancery court.”

¶8.    In its “Response to the Court’s En Banc Order,” Bigger Pie clarified:

       The long term natural gas price forecast with CO2 cost assumptions that
       [Mississippi Power] emailed to [Bigger Pie] in 2012 is a filing [Mississippi
       Power] made with the [commission] eleven months later dated December 7,
       2009. [Bigger Pie] seeks the earlier January 19, 2009 long term natural gas
       forecast and CO2 cost assumptions . . . .

Bigger Pie submitted that this Court should “compare the sealed . . . documents” with the

forecast chart given to the WSJ and Bigger Pie in August 2012. If “the two forecasts are

different[,]” Bigger Pie contends “this case is not moot.”

¶9.    In its “Response to Order to Show Cause[,]” Mississippi Power submitted that “the

documents [it] filed confidentially with the . . . Commission and that are the subject of this

appeal are distinctively different than the information [Mississippi Power] provided to Bigger

Pie and the Wall Street Journal.” Mississippi Power reiterated its argument that the

                                              5
documents “contain confidential, proprietary and/or trade secret information[,]” and are not

subject to disclosure.

                                        ANALYSIS

¶10.   A review of the documents under seal and the forecast chart published by the WSJ

reveals that the sealed documents contain information that is similar in kind, yet

“distinctively different” from that published by the WSJ. The sealed documents contain

various charts and graphs which pertain to natural gas price forecasting and CO2 cost

assumptions. The documents also contain information that does not relate to natural gas price

forecasting and CO2 cost assumptions.

¶11.   First, we will address the latter information. Bigger Pie voluntarily narrowed the scope

of the information that it sought on appeal to “the long term natural gas price forecast and

CO2 cost assumptions.” Bigger Pie is not seeking information which is outside its stated

scope. Thus, this Court need not reach the issue of whether information not related to natural

gas price forecasts and CO2 cost assumptions is protected as “confidential, proprietary and/or

trade secret information.”

¶12.   Addressing the information that is within Bigger Pie’s stated scope, Bigger Pie argues,

“[i]f the two forecasts are of the same kind of information, although using different gas price

numbers, it follows that the earlier January 19, 2009 filing [Bigger Pie] seeks is no more a

‘secret’ or ‘trade secret’ than the later December 7, 2009 filing.” We agree. Mississippi

Power’s revelation of natural gas price forecasts and CO2 cost assumptions provided to the




                                              6
Commission in December 2009 militates against the argument that a similar forecast

submitted in January 2009 would be entitled to confidential, secret status.

¶13.   Finally, we will address the information which Bigger Pie is entitled to have produced.

Most of the charts and graphs in the sealed documents are not in the same format as that

published by the WSJ. The chart(s) that are in similar forms reveal numbers that are different

from those published by the WSJ, but it is beyond our expertise to assess whether the various

charts take into account the same considerations. Bigger Pie has argued that if “the two

forecasts are different . . . this case is not moot.” Simply put, we are unable to answer that

question, for there is not a chart under seal that is identical to the published chart by which

a side-by-side comparison can be made. However, whether the numbers are “different” is not

the controlling issue. As discussed supra, Bigger Pie is entitled to the January 2009 natural

gas price forecasts and CO2 cost assumptions similar in kind to those published by the WSJ.

This information cannot be argued to be confidential, regardless of whether the numbers

related to long-term natural gas forecasts and CO2 cost assumptions are the same or different.

¶14.   We affirm the judgment of the Hinds County Chancery Court to the extent that it

ordered disclosure of the January 2009 gas price forecasts and CO2 cost assumptions that are

similar in kind to those published by the WSJ. However, we remand this case to the

Chancery Court of Hinds County to consider the documents under seal and order that

information pertaining to natural gas price forecasts and CO2 costs assumptions be produced

by Mississippi Power. Mississippi Power should not be compelled to produce portions of the

documents which do not relate to natural gas price forecasts or CO2 cost assumptions.

                                              7
¶15.   Such a determination may prove difficult, if not impossible, for the chancellor, based

on the format of the sealed documents compared to the information published by the WSJ.

A special master may be required. This Court “recognize[s] that reference to a special master

without the consent of the parties is the exception and not the rule.” Lewis v. Lewis, 54 So.

3d 216, 218 (Miss. 2011) (citing Miss. R. Civ. P. 53(c)). Such “reference without the consent

of the parties would require a finding by the chancellor of exceptional conditions.” Id. at 219.

An exceptional condition would be the inability of the chancellor to discern what we likewise

cannot. “The chancellor[,]” not this Court, “is in the best position to make the determination

of whether” the complexities of the documents under consideration “are sufficiently

exceptional to warrant the appointment of a special master.” Id.

¶16.   AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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