                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-CA-01602-SCT

KEVIN BUCKEL

v.

MIKE CHANEY,           COMMISSIONER           OF
INSURANCE


DATE OF JUDGMENT:                          09/02/2009
TRIAL JUDGE:                               HON. J. DEWAYNE THOMAS
COURT FROM WHICH APPEALED:                 HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    EDWARD GIBSON
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: LOWRY CHRISTOPHER LOMAX
                                               LISA LOUISE COLONIAS
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               AFFIRMED - 11/04/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Kevin Buckel has appealed to this Court from an order granting summary judgment

entered by the Chancery Court for the First Judicial District of Hinds County. Buckel asserts

that the chancery court inappropriately assigned evidentiary value to an affidavit in support

of the motion for summary judgment filed by the Mississippi Commissioner of Insurance and

that the chancery court erred in its finding that Buckel’s rebuttal evidence was insufficient

to avoid a grant of summary judgment. Buckel further contends that the chancery court erred
by holding that his public-records request was improper under the Mississippi Public Records

Act and that Mississippi Code Section 83-5-209(7) (Rev. 1999) exempted from disclosure

the records Buckel had requested. Finding Buckel’s arguments to be unpersuasive and the

chancellor’s findings to be firmly rooted in the law, we affirm the chancery court judgment.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On January 4, 2009, Buckel submitted a public-records request under the Mississippi

Public Records Act to the Mississippi Insurance Department1 (“MID”):

       This is to request any data in the possession of MID concerning homeowner
       insurance claims as a result of Hurricane Katrina, excluding Wind Pool and
       Flood Claims. Specifically, I would like to know the (1) total number of
       homeowner claims filed after the storm; (2) the total “insured amount claimed”
       filed by homeowners after the storm; (3) the total amount paid out on those
       homeowner claims after the storm; (4) the total amount “not paid” on the
       homeowner claims after the storm. If this information is not available, I
       respectfully request your office compile this information for public
       consumption from the insurance companies that received homeowner claims
       regulated by MID as a result of Hurricane Katrina.

Having not received a response to this request by January 16, 2009, Buckel again wrote to

MID, expressing his desire to appeal MID’s alleged failure to respond to his earlier request.

However, MID did timely respond by letter on January 26, 2009, under the provisions of

Mississippi Code Section 25-61-5 (Rev. 2010), and informed Buckel that MID had searched

for the requested documents but did not possess them. MID expressed further to Buckel that

the Mississippi Public Records Act required only the production of existing records in its



       1
       The Mississippi Insurance Department (MID) is sometimes referred to herein as the
Mississippi Department of Insurance.

                                             2
possession and did not require a department to compile information. MID added that these

documents, in any event, were not viewable under an exemption to the Public Records Act.

¶3.    Buckel subsequently filed pro se for judicial review in the Harrison County Chancery

Court, and the parties agreed to transfer venue to the Hinds County Chancery Court. In his

complaint, Buckel sought information not specifically set forth in his original records

request. For instance, Buckel requested information relating to MID’s release on October 29,

2008, of its findings on the State Farm Conduct Exam. 2 Buckel specifically requested “a

copy of [the] claim information used by the examination team” in compiling the State Farm

Conduct Exam. He also requested “any documentation used by former Commissioner

[George] Dale that resulted in the information published” in press releases occurring on

January 30, 2006, and November 21, 2005, as well as in a news story in which Commissioner

Dale was quoted on June 22, 2006. The press releases 3 and news story 4 contained detailed


       2
         On October 19, 2006, as a result of controversy concerning the handling of claims
by State Farm Insurance Company, MID advised State Farm that MID was assembling an
examination team “to commence immediately to investigate how State Farm treated its
policyholders who had filed claims as a result of Hurricane Katrina.” The examination was
“to investigate the handling of homeowner claims in the lower six counties of Mississippi
. . . .”
       3
         The January 30, 2006, press release stated in part: “Some 187,473 claims have been
filed in Jackson, Harrison, Hancock, Stone, George, and Pearl River Counties. In Jackson
County there have been over 45,000 claims filed and over $485 million in claims paid . . .
.” The November 21, 2005, press release contained a similar report, updated by the 2006
press release.
       4
       The news story appeared in the Stone County newspaper on June 22, 2006: “There
have been 5,244 property insurance claims filed in Stone County because of Hurricanes
Katrina and Rita, and as of June 6, $62,852,544 have been paid out by insurance companies

                                             3
information regarding the number of claims filed in specific counties and total amounts in

claims paid.

¶4.    After the Commissioner had answered and pleaded his affirmative defenses, the

Commissioner filed a motion for summary judgment. Buckel timely responded, and the

chancellor conducted a summary judgment hearing. The Commissioner put forth two

arguments in support of his motion: (1) that MID did not possess the public records initially

requested; and (2) that the public-records request failed to include documents underlying the

State Farm Market Conduct Report and that these documents were exempt under Mississippi

Code Section 83-5-209(7) (Rev. 1999).

¶5.    In support of his first argument, the Commissioner provided an affidavit of MID

employee Donna Cromeans in which she swore based on personal knowledge that she

“undertook and supervised a diligent search of the files and records held by MID” and that

the records requested by Buckel “are not in the possession, custody or control of” MID.

Buckel, however, has argued for the first time on appeal that the chancellor erred by finding

evidentiary value in this affidavit, because Cromeans was an interested witness.

¶6.    In response to the Commissioner’s denial of having possession of the records

requested, Buckel presented two arguments at the summary judgment hearing: (1) that the

two press releases and single news story, relating to homeowners’ claims filed and paid after




in settlements, according to the Mississippi Department of Insurance . . . .”

                                             4
Katrina, contained “exact detailed information,” 5 evidencing that MID was “compiling” this

information, and, therefore, was in possession of the information requested and (2) that the

State Farm Market Conduct Report indicated that MID was in possession of Buckel’s

requested documents because the Report stated that Commissioner Dale had subpoenaed

43,000 files from State Farm.6 Buckel also contended that his initial records request did

include the information underlying the Market Conduct Report, although not specifically

identified, and that the Mississippi Public Records Act did not exempt this underlying

statistical information.

¶7.    On September 2, 2009, the chancellor entered an order granting summary judgment,

holding that (1) no genuine issue of material fact existed to support Buckel’s claims; (2)

neither the Commissioner nor MID possessed the records requested by Buckel; and (3) the

documents demanded by Buckel in his complaint were not properly requested and were

nonetheless protected by Mississippi Code Section 83-5-209(7) (Rev. 1999), as further

interpreted in pari materia by Mississippi Department of Insurance (MDOI) Regulation 83-

1.6(b)(2).




       5
        With regard to the origin of these exact numbers, Commissioner Chaney contended
that former Commissioner Dale, not a party, and MID were probably “simply translating
numbers provided by the National Association of Insurance Commissioners.”
       6
      The Commissioner argued that the Report written by the examination team, which
MID hired as contractors to perform the examination of State Farm, did not indicate that the
examiners presented this underlying data to the Commissioner.

                                             5
¶8.    On appeal, Buckel seeks to reverse this judgment and have his case remanded to the

chancery court for further proceedings. For the sake of today’s discussion, we combine and

restate the critical issues before us.

                                         DISCUSSION

¶9.    The standard of review of a trial court’s grant of a motion for summary judgment is

de novo. Whitaker v. Limeco Corp., 32 So. 3d 429, 433-34 (Miss. 2010) (citing Burleson

v. Lathem, 968 So. 2d 930, 932 (Miss. 2007) (citations omitted)). Accordingly, this Court

must employ “a factual review tantamount to that of the trial court when considering

evidentiary matters in the record.” Moss v. Batesville Casket Co., 935 So. 2d 393, 397 (Miss.

2006) (quoting Williams v. Bennett, 921 So. 2d 1269, 1272 (Miss. 2006)).

       I.      WHETHER THE TRIAL COURT ERRED IN GRANTING THE
               COMMISSIONER’S MOTION FOR SUMMARY JUDGMENT.

¶10.   The party requesting summary judgment bears the burden of demonstrating that no

genuine issue of material fact exists. Watson Quality Ford, Inc. v. Casanova, 999 So. 2d

830, 833 (Miss. 2008) (citing Estate of Johnson v. Chatelain, 943 So. 2d 684, 686 (Miss.

2006)). When the moving party has supported its motion in accordance with Mississippi

Rule of Civil Procedure 56, “an adverse party may not rest upon the mere allegations or

denials of his pleadings; his response . . . must set forth specific facts showing there is a

genuine issue for trial.”     Miss. R. Civ. P. 56(e).     Moreover, summary judgment “is

appropriate when the non-moving party has failed to ‘make a showing sufficient to establish

the existence of an element essential to the party’s case, and on which that party will bear the


                                               6
burden of proof at trial.’” Watson Quality Ford, Inc., 999 So. 2d at 832 (quoting Bullard v.

Guardian Life Ins. Co., 941 So. 2d 812, 814 (Miss. 2006)). “Mere general allegations which

do not reveal detailed and precise facts will not prevent the award of summary judgment.”

Brown v. Credit Ctr., Inc., 444 So. 2d 358, 362 (Miss. 1983) (citations omitted). “Pro se

parties should be held to the same rules of procedure and substantive law as represented

parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d 112, 118 (Miss. 1987).

¶11.   Buckel contends that the chancellor erred in granting summary judgment for two

reasons. First, the chancellor incorrectly assigned evidentiary value to the affidavit of an

interested witness. Second, the two press releases, the news story, and the Market Conduct

Report presented in response to the Commissioner’s motion for summary judgment created

a genuine issue of material fact as to whether the Commissioner possessed the documents

Buckel had requested.

       A. Buckel’s Argument against Donna Cromeans’s Affidavit.

¶12.   To satisfy his burden as the movant for summary judgment, the Commissioner had

“the burden of demonstrating there is no genuine issue of material fact . . . .” Buchanan v.

Ameristar Casino Vicksburg, Inc., 957 So. 2d 969, 975 (Miss. 2007) (citations omitted).

The Commissioner sought to establish the nonexistence of an element essential to Buckel’s

case. Watson Quality Ford, Inc., 999 So. 2d at 833 (citing Bullard, 941 So. 2d at 814).

Specifically, under Mississippi Code Section 25-61-3(b) (Rev. 2010), the Commissioner

attempted to set forth facts showing that MID did not “possess” the public records Buckel

had requested.

                                             7
       “Public records” shall mean all books, records, papers, accounts, letters, maps,
       photographs, films, cards, tapes, recordings or reproductions thereof, and any
       other documentary materials, regardless of physical form or characteristics,
       having been used, being in use, or prepared, possessed or retained for use in
       the conduct, transaction or performance of any business, transaction, work,
       duty or function of any public body, or required to be maintained by any public
       body.

Miss. Code Ann. § 25-61-3(b) (Rev. 2010) (emphasis added). The Commissioner provided

Cromeans’s affidavit in support of the motion for summary judgment. Cromeans’s affidavit

stated that she had searched diligently, but MID did not possess the documents Buckel had

requested.

¶13.   Buckel argues for the first time on appeal that Cromeans’s affidavit in support of the

Commissioner’s motion for summary judgment should not have been assigned evidentiary

value. He states in his brief that “the Chancellor clearly awarded some credence to the

affidavit of the commissioner, finding that MID was not in possession of the information

which Buckel sought.” Citing this alleged error by the chancellor, Buckel argues that the

Commissioner failed to prove that no genuine issue of material fact existed.

¶14.   Buckel, however, failed to contest this affidavit in the trial court and, therefore, may

not contest it for the first time on appeal. Bd. of Educ. of Calhoun County v. Warner, 853

So. 2d 1159, 1164 (Miss. 2003) (citing Brown, 444 So. 2d at 365 (Miss 1983)). In Warner,

this Court refused to allow a party to attack an affidavit for the first time on appeal: “Where

the party against whom a motion for summary judgment is made wishes to attack one or

more of the affidavits upon which the motion is based, he must file in the trial court a

motion to strike the affidavit.” Id. Failing to attack the affidavit constitutes waiver of any

                                              8
objection to the affidavit. Cont’l Ins. Co. v. Transamerica Rental Fin. Corp., 748 So. 2d

725, 731 (Miss. 1999).

¶15.     Assuming arguendo that this Court were to allow Buckel to contest this affidavit on

appeal, Buckel still would not be entitled to relief. This Court has articulated its standard for

the admissibility of affidavits in accordance with Mississippi Rule of Civil Procedure 56(e):

“[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that the affiant

is competent to testify to the matter stated therein.” Stuckey v. The Provident Bank, 912 So.

2d 859, 868 (¶20) (Miss. 2005). However, “[a] conclusory, self-serving affidavit,

unsupported by material facts relevant to the proposition at issue, is insufficient as a basis

to grant summary judgment.” Dalton v. Cellular S., Inc., 20 So. 3d 1227, 1233-34 (Miss.

2009).

¶16.     Here, the chancellor did not err in allowing and considering Cromeans’s affidavit. Her

affidavit was based on personal knowledge and was not conclusory. She did not simply

suppose that MID did not possess the records. The affidavit clearly stated she had conducted

a search at MID for the records requested and had supervised others in the search as well.

This testimony as to the absence of the records at MID was material to this case, and Buckel

has presented no evidence that the affidavit is self-serving, except for the fact that Cromeans

worked at MID.

¶17.     Nonetheless, Buckel argues that an interested witness’s affidavit should not be

considered under United States Supreme Court precedent. Reeves v. Sanderson Plumbing

                                               9
Prods., Inc., 530 U.S. 133, 150-51, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (citations

omitted). In Reeves, the Supreme Court stated that when making determinations regarding

summary judgment, courts “should give credence to the evidence favoring the nonmovant

as well as that ‘evidence supporting the moving party that is uncontradicted and

unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’”

Id. Based on Reeves, Buckel asserts that Cromeans was an interested witness, and thus her

affidavit should not have been considered by the chancellor in determining the issue of

whether to grant summary judgment.

¶18.   This Court has not specifically adopted the Reeves test, instead relying on its own

well-articulated standards for determining the admissibility of affidavits. Dalton, 20 So. 3d

at 1233-34. Reeves dealt with employment discrimination, not the dissemination of public

records. Moreover, as the Commissioner correctly argues, without the testimony of his

employees, the other avenues by which to prove the existence or nonexistence of documents

would be costly and perhaps also subject to this same interested-party analysis.

¶19.   In light of these problems, when following the Reeves disinterested-witness

requirement, the Fifth Circuit, among other courts, has not strictly applied this requirement:

       [T]he definition of an interested witness cannot be so broad as to require us to
       disregard testimony from a company’s agents regarding the company’s reasons
       for discharging an employee. As the Seventh Circuit noted in Traylor v.
       Brown, et al., 295 F.3d 783 (7th Cir. 2002), to so hold would foreclose the
       possibility of summary judgment for employers, who almost invariably must
       rely on testimony of their agents to explain why the disputed action was taken.




                                             10
Sanstad v. CB Richard Ellis, Inc., 309 F. 3d 893, 898 (5th Cir. 2002). The Fifth Circuit has

also held that a “decision-maker” does not constitute an interested person “without further

evidence” of the witness’s interest. Wiley v. Am. Elec. Power Serv. Corp., 287 Fed. Appx.

335, 339 (5th Cir. 2008).

¶20.   This Court refuses to apply Reeves in the context of today’s case. Buckel has not

provided “further evidence” of Cromeans’s interest. She is a regular employee, not a

decision-maker. Thus, we find the chancellor did not err in assigning evidentiary value to

Cromeans’s affidavit and in finding that the Commissioner had satisfied his burden as the

party moving for summary judgment.

       B. Buckel’s Evidence in Response to the Commissioner’s Motion.

¶21.   In response to the Commissioner’s motion for summary judgment, supported by

Cromeans’s affidavit, Buckel argues that MID’s Market Conduct Report created a reasonable

inference that MID was in possession of the public records he had requested relating to

claims paid and filed. He also points to Commissioner Dale’s press releases and news story.

              1. Market Conduct Report

¶22.   Buckel asserts the State Farm Market Conduct Report indicated that MID was in

possession of the requested documents because the Report stated that Commissioner Dale

had subpoenaed 43,000 files from State Farm. Buckel, however, overstates the limited

evidentiary value of the Market Conduct Report.

¶23.   Buckel contends that the Report stated that MID had “requested” the claims

information he sought and had in fact received this information “provided” by State Farm.

                                            11
Yet, nowhere in the Report did it specifically state that MID had requested this information.

The Report stated that the examiners, whom MID had contracted to gather data and to

complete the Report, had requested and received this information and that “[t]his

examination was performed by examiners, adjusters, and attorneys appointed by the

Commissioner of Insurance [ . . . ] in accordance with his statutory authority.” While Buckel

also argues that a MID employee, Jimmy Blissett, was the examiner in charge, Buckel offers

no proof that Blissett was an actual employee of MID, rather than an independent contractor.

¶24.   While there is no doubt that the contractors/examiners had this data relating to claims

filed and paid, there is no evidence that MID possessed the information sought in Buckel’s

records request. The Market Conduct Report does not indicate with any certainty that MID

possessed the data underlying this Report. Nowhere does the Report state that MID was, at

any time, in possession of this underlying data or storing this information. MID did not

compile information for the Report. At best, the Report creates an inference that because

MID contracted to have the Report completed, then MID also had/stored the information

underlying the Report. However, this inference, without more, fails to create a genuine issue

of material fact as to whether the Commissioner has ever possessed the documents. Buckel

has not brought forth “probative evidence” legally sufficient to make apparent “the existence

of a triable issue of fact.” Smith v. First Fed. Sav. & Loan Assoc. of Grenada, 460 So. 2d

786, 792 (Miss. 1984) (quoting Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117,

119 (5th Cir. 1982)). To create a genuine issue of material fact as to whether MID had

possession of the requested information, Buckel certainly could have conducted more

                                             12
discovery via the examiners, former Commissioner Dale, and other persons, but failed to do

so.

              2. Press Releases & News Story

¶25.   Buckel also points to the press releases and the news story in which former

Commissioner Dale updated the public on the number of claims filed and paid. Buckel

argues that “it is simply not credible to believe that the former Commissioner either guesses

at the [exact] figures or recalled the figures from memory based on the data provided from

a third party source.” Viewing this evidence in the light most favorable to Buckel, this

evidence does create an inference that Commissioner Dale had access to the data Buckel

seeks, because the press releases do provide exact numbers of claims filed and paid. This

evidence, however, does not create a reasonable inference that, years later, MID, under a new

Commissioner, currently possesses the data underlying these press releases or news story.

In fact, to draw the conclusion that MID possesses the data, one would have to pile inference

upon inference. Specifically, one has to infer that Commissioner Dale possessed the data and

then infer through Commissioner Dale’s possession that MID must have possessed and

currently possesses the information sought. Importantly, at the summary judgment hearing,

Buckel even appreciated that MID might not have this material he had requested and

conceded that MID had no responsibility to compile this information on claims.

¶26.   Nonetheless, in support of his argument that the Report, the press releases, and the

news story create circumstantially a reasonable inference sufficient to withstand a summary

judgment motion, Buckel argues, “[S]ummary judgment is improper when the plaintiff has

                                             13
advanced enough circumstantial evidence to take [his] claims out of the realm of ‘mere

conjecture’ and plant them in the solid ground of ‘reasonable inference.’” Thomas v. The

Great Atl. & Pac. Tea Co., Inc., 233 F.3d 326, 330 (5th Cir. 2000) (citing Snapp v.

Harrison, 699 So. 2d 567, 570 (Miss. 1997)).

¶27.   From the record before us, this Court is constrained to find that Buckel has not

presented circumstantial evidence sufficient for a trier of fact to find that the Commissioner

possessed the documents requested. Commissioner Dale made these referenced statements

more than two years before MID issued the Market Conduct Report in October of 2008 and

almost three years before Buckel’s request. These documents do not state that MID possessed

this information and only create attenuated inferences that MID currently possesses the

information compiled by the examination team. Moreover, Buckel has cast no doubt on the

affidavit in support of the Commissioner’s motion for summary judgment.

¶28.   The law is clear that the party opposing the motion is required to bring forward

significant probative evidence demonstrating the existence of a triable issue of fact. Brown,

444 So. 2d at 364 (citing Woods, 687 F.2d at 119). Without more supporting evidence,

Buckel’s theory remains merely “possible,” not “probable.” Thomas, 233 F.3d at 330.

Buckel’s evidence consists of “mere general allegations” and unsupported conclusions, not

“detailed and precise facts,” and is not sufficient to withstand entry of summary judgment

in light of Cromeans’s uncontroverted affidavit. Brown, 444 So. 2d at 362 (citing Liberty

Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir. 1967)).



                                             14
¶29.   In sum, we find no error in the chancellor’s entry of summary judgment in favor of

the Commissioner, because Buckel did not put forth sufficient evidence to create a

reasonable inference to satisfy this element of his claim, namely that the Commissioner

“possessed” the records requested under Mississippi Code Section 25-61-3(b) (Rev.2006).

       II.     WHETHER THE CHANCERY COURT ERRED IN FINDING
               THAT BUCKEL FAILED TO MAKE A PROPER RECORDS
               REQUEST.

¶30.   The chancellor determined that Buckel had improperly requested documents

underlying the Market Conduct Report from MID under Mississippi Code Section 25-61-5,

which states in part that

       [e]xcept as otherwise provided by Sections 25-61-9 and 25-61-11, all public
       records are hereby declared to be public property, and any person shall have
       the right to inspect, copy or mechanically reproduce or obtain a reproduction
       of any public record of a public body in accordance with reasonable written
       procedures adopted by the public body concerning the cost, time, place and
       method of access . . . .

Miss. Code Ann. § 25-61-5 (1)(a) (Rev. 2010) (emphasis added). Based on this provision

in the Mississippi Public Records Act, the Commissioner has adopted Regulation 83-1.4(b),

which states, “A request should reasonably describe the desired record. Where possible,

specific information regarding dates, files, titles, file designation, etc.[,] should be supplied.”

MDOI Regulation 83-1.4(b), available at http://www.mid.state.ms.us/regulations/831reg.pdf

(last visited Nov. 2, 2010).

¶31.   The issue is whether Buckel’s initial request for public records was sufficient to

include the information relating to the Market Conduct Report, which he first mentioned in


                                                15
his complaint. Buckel’s initial request to MID was “for any records relevant to his inquiry

which sought information regarding the claims made, the claims paid and the portion of

claims unpaid.” (Emphasis added). Buckel contends that the information in the complaint

is a “subset of the records requested” and that the public policy supporting his right to view

the documents should prevent his request from being refused as a matter of form. Id.

¶32.   By the Public Records Act, Mississippi has declared as its public policy that public

records generally be made available for viewing by any member of the public. Miss. Code

Ann. § 25-61-1 (Rev. 2010). Allowing access to public records is a duty of the public bodies

of Mississippi. Id. Nonetheless, as indicated in Section 25-61-5, a public body may set forth

standards by which the public requests such documents. MID requires a request to

“reasonably describe the desired record” and if “possible, specific information regarding

dates, files, titles, file designation, etc.[,] should be supplied.” MDOI Regulation 83-1.4(b).

The record indicates that Buckel did not specifically request the information underlying the

Market Conduct Report until he had filed his complaint in chancery court.

¶33.   Because Buckel sought such specific information and knew the “desired record” from

which the information was derived, we cannot say that the chancellor erred in finding that

Buckel did not make a proper records request. Buckel easily could have described the Market

Conduct Report; instead, he made a general request accompanied by an instruction for MID

to compile the information he wanted. If we were to find that Buckel did make a proper

request, this Court would undermine the obvious purpose of MDOI Regulation 83-1.4(b): to



                                              16
promote the efficient production of documents by requiring persons to describe the

documents requested. Id.

¶34.   Accordingly, for the reasons stated, we find no error in the chancellor’s finding that

Buckel failed to make a proper records request.

       III.   WHETHER THE CHANCERY COURT ERRED IN FINDING
              THAT THE EXAMINATION DOCUMENTS WERE EXEMPTED
              BY STATUTE.

¶35.   This Court has clearly articulated its standards for interpreting a statute. “The most

fundamental rule of statutory construction is the plain meaning rule, which provides that if

a statute is not ambiguous, then this Court must apply the statute according to its terms.”

State ex rel. Hood v. Madison County Bd. of Supervisors, 873 So. 2d 85, 90 (Miss. 2004)

(citing City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992)). Likewise, “[i]t is

a well-settled rule of statutory construction that ‘when two statutes pertain to the same

subject, they must be read together in light of legislative intent.’” Tunica County v.

Hampton Co. Nat’l Sur., 27 So. 3d 1128, 1133 (Miss. 2009) (citing Lenoir v. Madison

County, 641 So. 2d 1124, 1129 (Miss. 1994)).

¶36.   Furthermore, under the rules of statutory construction, “repeal of statutes by

implication is not favored.” Id. at 1133 (citing Roberts v. Miss. Republican Party State

Executive Comm., 465 So. 2d 1050, 1051 (Miss. 1985)). Statutes “on the same subject,

although in apparent conflict, should if possible be construed in harmony with each other to

give effect to each.” Id. at 1134 (citing Miss. Gaming Comm’n v. Imperial Palace of Miss.,

751 So. 2d 1025, 1029 (Miss. 1999) (citations omitted). Moreover, “all statutes in pari

                                             17
materia are taken into consideration, and a legislative intent [is] deduced from a

consideration as a whole.” Id.

¶37.   The issue of statutory interpretation before this Court is whether the Mississippi

Public Records Act exempts the examination materials Buckel requested. The answer

depends on this Court’s interpretation of two statutes. The Mississippi Public Records Act

creates an exemption for public records via subsequently enacted statutes:

       The provisions of this chapter shall not be construed to conflict with, amend,
       repeal or supersede any constitutional or 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.

Miss. Code Ann. § 25-61-11 (Rev. 2010) (emphasis added). Pursuant to this section of the

Act, Mississippi Code Section 83-5-209(7) creates an exemption to the Act and grants the

Commissioner discretion in determining whether to disclose examination documents:

       All working papers, recorded information, documents and copies thereof
       produced by, obtained by or disclosed to the commissioner or any other person
       in the course of an examination made under Sections 83-5-201 through 83-5-
       217 may be held by the commissioner as a record not required to be made
       public under the Mississippi Public Records Act.

Miss. Code Ann. § 83-5-209(7) (Rev. 1999) (emphasis added). Buckel argues that the Public

Records Act creates two exceptions to its otherwise broad policy of allowing persons to

inspect public records. He contends that the Commissioner did not raise one exception

pertaining to trade secrets or proprietary information and that the second exception, cited

above, is inapplicable because it only “provides a ground for withholding what is otherwise


                                              18
a public record where such disclosure is mandatorily prohibited by another statute.”

(Emphasis added). Buckel contends that the exception created in Section 83-5-209(7)

“describes a discretionary function” that is “clearly not envisioned . . . or permitted by the

Public Records Act.” In essence, Buckel takes issue with the “shall be exempt” language in

the Records Act and the discretionary language in Section 83-5-209(7).

¶38.   This Court finds that the two statutes, when read together, do conflict, but are not in

irreconcilable conflict, and should be harmonized, giving effect to each. “Statutes on the

same subject, although in apparent conflict, should if possible be construed in harmony with

each other to give effect to each.” Roberts, 465 So. 2d at 1052. First, the two statutes

conflict. The Public Records Act provides only for mandatory exemptions based on its plain

language (“shall be exempt”) and does not specifically provide for discretionary exemptions.

Miss. Code Ann. § 25-61-11 (Rev. 2010). Second, although in apparent conflict, this Court

can construe them to be harmonious and give effect to the Legislature’s intent. Section 25-

61-11 reserves for the Legislature a broad general right to create a new statutory exception

to the Public Records Act, and Section 83-5-209(7) creates a new exception in positive

words. The Legislature clearly had knowledge of the language in the Public Records Act

when it drafted Section 83-5-209(7), because it specifically references the Public Records

Act in that section when it grants the Commissioner discretion in determining which records

to exempt. Importantly, if this Court found that the mandatory language of the Public

Records Act controlled, then Section 83-5-209(7) would be repealed by implication, and



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under the rules of statutory construction, “repeal of statutes by implication is not favored.”

Tunica County, 27 So. 3d at 1133 (citing Roberts, 465 So. 2d at 1051).

¶39.   For the foregoing reasons, this Court holds that the chancellor did not err in finding

that Section 83-5-209(7), as interpreted in pari materia, does create an exemption to the

Public Records Act. The manner in which the Legislature determines the exemptions to the

Public Records Act is strictly within the power of the Legislature: “[t]he preferred policy of

disclosing public records must cede to the legislatively-mandated exemptions thereto as ‘the

wisdom or folly of the pertinent legislation is strictly within the constitutional power of the

Legislature[.]’ Any disagreements with those directives are best aimed toward the

Legislature.” Miss. State Univ. v. People for Ethical Treatment of Animals, 992 So. 2d 595,

610 (Miss. 2008) (quoting Gannett River States Publ’g Co. v. Entergy Miss., Inc., 940 So.

2d 221, 226 (Miss. 2006)).

                                       CONCLUSION

¶40.   Based on today’s discussion, we affirm the chancery court’s entry of summary

judgment in favor of the Commissioner, as Buckel has failed to present evidence indicative

of a genuine issue of material fact. We also find that the chancellor did not err in finding that

Buckel had made an improper records request and that the Mississippi Public Records Act

exempted the documents requested by Buckel. For these reasons, the judgment of the

Chancery Court for the First Judicial District of Hinds County is affirmed.

¶41.   AFFIRMED.



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    WALLER, C.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT
ONLY.




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