IN THE SUPREME COURT OF MISSISSIPPI
N O. 2013-CT-02002-SCT MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING, JIM HOOD, CHRIS LOTT, DAV ID HUGGINS, MELISSA C. PATTERSON, JOSEPH A. RUNNELS, JR., SANDRA R. CHESTNUT AND HAROLD E. PIZZETTA, III

v. GULF PUBLISHING COMPANY , INC.

DATE OF JUDGMENT: 11/04/2013 TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: MARGARET P. ELLIS JUDY T. MARTIN ARTHUR F. JERNIGAN, JR. JOHN G. CORLEW ROBERT V. GREENLEE ALAN M. PURDIE MELISSA C. PATTERSON RONALD G. PERESICH ROY MERRITT TIPTON W I LLIAM V. W E STBROOK, III SAMUEL E. L. ANDERSON LYNN CHAIN W ALL JOHN T. KITCHENS THOMAS EUGENE W HITFIELD, JR. DION JEFFERY SHANLEY ATTORNEY FOR APPELLEE: HENRY LAIRD NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; RENDERED IN PART; AND REMANDED IN PART - 11/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:C ONSOLIDATED WITH
N O. 2014-CT-00894-SCT

MELISSA C. PATTERSON, STACEY PICKERING, INDIV IDUALLY

, DAV ID HUGGINS, INDIV IDUALLY

, CHRIS LOTT, INDIV

IDUALLY

, MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING IN HIS OFFICIAL CAPACITY

AS STATE AUDITOR FOR THE STATE OF MISSISSIPPI, HAROLD E. PIZZETTA, III, MISSISSIPPI DEPARTMENT OF MARINE RESOURCES, JOSEPH A. RUNNELS, JR., SANDRA R. CHESNUT AND JIM HOOD

v. GULF PUBLISHING COMPANY , INC.

DATE OF JUDGMENT: 05/27/2014 TRIAL JUDGE: JENNIFER T. SCHLOEGEL COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: ARTHUR F. JERNIGAN RONALD G. PERESICH JOHN T. KITCHENS ALAN M. PURDIE MARGARET P. ELLIS JOHN G. CORLEW W I LLIAM V. W E STBROOK ROY MERRITT TIPTON DION JEFFERY SHANLEY MELISSA C. PATTERSON SAMUEL E. L. ANDERSON JUDY T. MARTIN LYNN CHAIN W ALL ROBERT V. GREENLEE THOMAS EUGENE W HITFIELD ATTORNEY FOR APPELLEE: HENRY LAIRD NATURE OF THE CASE: STATE BOARDS AND AGENCIES DISPOSITION: N/A MOTION FOR REHEARING FILED: MANDATE ISSUED:EN BANC.

BEAM, JUSTICE, FOR THE COURT: ¶1. The Court of A ppeals reversed and rendered a f inal j udgm ent entered by the Harrison County Chancery Court, in w hich the chancery court held that: (1) Gulf Publishing’s (GP) records request under the Mississippi Public Re c o r d s A c t ( MPRA) was not subject to any

exem ptions contained in the a ct; (2) the D epartm ent of Marine Research (DMR) acted in bad
f aith by asserting def

enses f or the purpose o f delay in violation of the Mississippi Litigation Accountability Act (MLAA); (3) DMR willf ully and wrongf

ully den i e d G P ’ s records requests; (4) the State A uditor a cted in bad f aith and willf

ully and wrongf

ully denied GP’s requests; (5) the State Auditor was in civil c ontem pt f rom Novem

ber 4, 2013, until it purged itself on Decem

b e r 5, 2 013, when it f

iled a m otion w ith the f

ederal district c o u r t , s eeking
perm ission to release the records r e q u ested by GP, w hich were then in the custody of a f ederal grand j ury ; theref

ore, t he State Auditor was l iable f or attorney ’ s f

ees and exp enses resulting f

rom the c ontem

pt; ( 6) GP was entitled to attorney ’s f ees under the MPRA, the MLAA, and relevant caselaw f o r contem pt and m onetary sanctions f or b ad f aith; (7) DMR and the S tate Auditor were jointly and severally liable f o r attorney ’s f

ees and other e xpenses; and (8) the f

ollowing i n dividuals were f ined $100 each pursuant to t he MPRA, f or their participation in t he willf

ul a nd wrongf

ul denial of GP’s p ublic-records request: State Auditor Stacey Pickering, A t torney General Jim Hood; Director o f Investigations David Huggins, Investigator Chris L ott, Special Assistant Attorney s G eneral Melissa Patterson, Joseph Runnels, Sandra Chestnut, and Harold Pizzetta.

3¶2. GP petitioned this Court f o r writ of certiorari, which was granted. Having reviewed the record and considered GP’s c laim (s), we f ind the Court of A ppeals should not have reached the q

uestion of whether t he investigative-report exem ption under the MPRA applied
in this instance. As will be explained, that claim was waived. Theref ore, that portion of the
Court o f A ppeals’ judgm ent holding that the public records sought by GP w ere exem pt under the MPRA’s investigative-report exem ption is overruled. ¶3. W e f

ind that the Departm ent of Audit, as a public body d ef ined by M ississippi Code Section 25-61-3(a), is liable to GP f or the civil penalty prescribed Mississippi Code Section 25-61-15, along with reasonable expenses and attorney ’s f ees a s f ound by the chancery court, f or deny ing GP access to public records not exem pt f r om the provisions of

the MPRA. 1 ¶4. Also, we f

ind no error in the chancery court’s decision to f ine Huggins $100 under the penalty provision contained in MPRA. See Miss. Code Ann. § 25-61-15 (Rev. 2010).

F ACTS AND PROCEDURAL HISTORY 2 ¶5. In 2012, a joint f ederal and s t a t e t a s k f o r c e b e g a n i n v e s t i g a t i n g D MR f or

m isappropriation of f

unds. T he investigation lead t o the indictm ents and convictions of several individuals, including f orm er DMR Director D r. Bill W alker; D M R Chief of Staf f

1 F o r p u r p o ses o f th is o p i n io n , th e D ep artm en t o f A u d it ref ers co llectiv ely to th e M ississip p i O f

f ice o f th e S t ate A u d ito r an d th e M i ssissip p i S tate A u d ito r, S tacey P ick erin g , u n less o th erw ise stated

.

2 M o st o f th e f

acts and procedural history are taken f r om the Court of A p peals’ opinion in Mississippi D epartm ent of Audit v. Gulf

Publishing Co. , Inc. , 2 016 W L 1212695 (Miss. Ct. App. March 29, 2016). 4Joe Ziegler; DMR of f icial Tina Shum ate; D’Iberville City Manager Michael Janus; and Dr.
W a lker’s son, Scott W a lker. ¶6. During the i n v e s t i g a t ion, on Novem b er 1 4, 2012, GP’s subsidiary newspaper, The Sun Herald , subm itted a written r ecords request 3 to DMR, in a ccordance with M ississippi Code Section 25-61-5 of the MPRA. Miss. Code A nn. § 25-61-5 (Rev. 20 1 0). DMR

com m unicated its willingness to c om ply with the n ewspaper’s req u e s t , b u t D M R and the newspaper could not agree on costs. ¶7. The newspaper s u b mi t t e d a second request on Decem ber 27, 2012, f

or additional records. 4 Bef

ore DMR’s com

pliance or response was due, the Harrison County grand jury subpoenaed the sam e records covered by the newspaper’s N ovem

ber 14 and Decem

ber 27 requests.

3 “1. All paperwork, docum ents and records of m o ney transf e r s, pay m ents, invoices, contracts, copies of checks, c heck stubs, an a ccount of all m oney spent, i ncluding copies of l eases, on boats leased by the DMR f rom the Mississippi Marine Resource Foundati o n o r Mar i ne R esource Foundation f rom 2006 to present. T his should i nclude r ecords of expenditures by the DMR f or repairs to the boats. 2. All docum ents related t o expenditures and f unding s ources f

or the DMR account l abel 6 01. T he f u n ding source f

or the 601 a c c o u n t, all deposits; and all of DMR’s New Sub-Grant Concurrence W orksheets that u s e the 601 account a s a f

unding source. 3. All MOUs, MOAs, docum en t s , paperwork and m oney exchanged between the DMR and the Institute f or M arine Mam m a l Studies. 4. An expanded, com

plete explanation, including project w ork sheet a n d a p plications, f or the Coastal Im

pact Assistance Program (CIAP) project listed on the Executive Sum m ary Final Mississippi Coastal Im

pact Assistance Plan (Revised), 2007- 2 0 1 0 Plan Update 1 (through August 31, 2 010), State of Missi s s i p p i

. M ississippi Departm ent of Marine Resources and Boards of Sup e r v i s o rs f

or Jackson, Hancock and Harrison counties as M S.R.747 – New Beginnings f

or Marine Education USM GCRl $8,000,000.”

4 “[ A]c c o u n t receipts, e xpenditures & balances f or Artif icial Reef Program Account–f

or f iscal y ears ending June 30 of 2008, 2009, 2010, 2011, 2012.” 5¶8. The subpoenas, issued at the behest of the Departm ent of Audit on January 6 and 9, 2013, r equired DMR’s records to “to be ‘retained in-place,’” t o “be accessible upon dem and by agents of the Mississippi Of f ice of State Auditor,” and t o “ be released to no entity other than [ the Departm ent o f Audit].” The subpoenas a l s o s tated, “This subpoena

. . . m ay be satisf i ed by m ailing or delivering a certif ied c opy o f said records[

. ]” Alleging the subpoenas prohibited DMR f

rom releasing its r e c o r d s t o any one other than the state auditor, DMR inf orm ed The Sun Herald in w riting that it could no l onger com p ly with t he public-records requests. ¶9. On January 15, 2013, the Departm ent o f A udit t ook possession of the records pursuant
to the subpoenas. Alm ost all of t he records had e lectronic copies. But a f ew r ecords existed as uncopied and unscanned originals. ¶10. The next day , o n January 16, 2013, GP sued DMR i n t he Harrison County Chancery
Court to com

pel production of

the records, without service upon the Attorney General, but instead upon DMR’s director. ¶11. A w eek later, on January 22, 2013, special assistant attorney s general assigned to both
DMR (Joseph Runnels) a nd the Departm ent o f Audit (Melissa P atterson), worked together

to subm i t a p rotective o rder to the Harrison County Circuit Court. 5 DMR f iled the m otion
f or protective order i n the circuit court, and t he Departm ent of Audit, thr o u g h Patterson, signed of f on the m otion. T he circuit court f ound “ the

. . . s ubpoena

. . . prohibit[ ed DMR] f rom com ply ing with the [ MPRA].” Theref ore, t he c ircuit c ourt m odif i ed the subpoena to

5 Runnels and Harold Pizzetta, both of the Attorney

General’s Of

f ice, presented the m otion and proposed order to the circuit court. 6perm it DMR t o release to G P public records in its possession, even if t hose records also were

subject to the subpoena. ¶12. On January 23, 2 0 1 3 , C o u n s e l f or GP Henry Laird and Counsel f or DMR Runnels appeared b ef

ore t he chancery court. Laird told t he chancery court that the parties were still working on a resolution a nd announced that h e did n ot see a ny r eason to g o f orward with the

ex pedited hearing set f

or that d ay . Laird said there were two categories of r ecords, one

com puterized, t he other c om

prised of hard copies, which w e r e volum i nous. 6 According to Laird, they were attem

pting to work out an arrangem ent f or G P t o h ave a ccess to the boxes containing the hard copies so G P could identif y what docum ents, if any , within those boxes they wanted, and then have DMR m ake copies f or GP. ¶13. Day s later, DMR downloaded 22,215 records to a “DVD+R” and hand e d i t o v e r to GP. The only records that were not released to GP were the uncopied a n d u n s c anned originals no longer in DMR’s possession, but in the Departm ent of Audit’s possession. ¶14. Another h earing was held o n April 23, 2013, at which the chancery court heard GP’s claim that it was still seeking t he records f or which no electronic copy was available. DMR

m oved t o dism i ss, c laim ing GP had f ailed t o prove that DMR wrongf ully had denied the requests. The chancery court said it could “ not f orce DMR to turn over records that they no l o n g e r p o s s e s s or have access to[ .]” Thus, t he c h ancery court d eem ed t he D epartm ent o f Audit a “necessary party since they are the ones i n phy sical custody and possession of all the

6 There were approxim ately three to f our boxes o f uncopied and u nscanned originals scattered t hroughout approxim ately thirty -eight boxes and two f iling cabinets–or sixty boxes total. 7docum ents that [ GP] now s eeks.” The court ended the hearing by giving G P perm ission to

join the Departm ent of

Audit as a necessary

party

. ¶15. GP f

i led a m otion to am end its f irst c om plaint f our m onths later, on August 16, 2013. And on August 2 6, 2 013, GP f iled a new, separate l awsuit, nam ing DMR a nd t he D epartm ent of Audit as def

endants, which was properly s erved on t he Attorney General. The m otion to

am end was granted on Septem ber 10, 2013. The two lawsuits were consolidated. ¶16. DMR answered the s econd com plaint by asserting that it had not wrongf ully denied
GP’s requests, and that GP’s claim already had been l itigated in the f irst lawsuit. As part of its a nswer, the Departm ent of A udit asserted the records in i ts possession w ere exem pt under the MPRA’s “ investigative report” exe mp t i o n. See Miss. Code A nn. § 25-61-3(f ) (Supp. 2016). ¶17. The chancery c ourt heard GP’s second c laim on October 3 0 and 31, 2013. During the hearing, the chancellor instructed the Departm ent of A udit to bring the records to the courthouse. Bef

ore the records arrived, the chancery court had ruled f rom t he bench that the records did not f

all under t he investigative-reports exem ption. T he chancery court allowed the docum e nts to be taken f rom the courthouse and instructed the D epartm ent of Audit to
copy the records or put DMR in a position to com ply with GP’s requests. ¶18. Though the chancery court later would rescind this statem ent, the court stated at the end o f the hearing that “there has b een no evidence presented to the [ c ]ourt that

. . . DMR has done any thing other than attem

pt to com ply with the records request, at least based upon the

8evidence the [ c]ourt has been presented.” T he chancery co u r t , h o w e v er, r eserved the right

to add, alter, am end, and/or revise her bench ruling when reduced to writing. ¶19. That sam e d a

y , on October 31, an Assistant United States Attorney (AUSA) attem pted

to contact the c hancellor. The chancellor did not speak with the AUSA or return his phone calls. Federal Subpoena ¶20. Bef

ore the chancery court’s bench ruling was reduced to writing, the Clerk of Court f or the United States District C ourt f or the S outhern D istrict of Mississippi, through the AUSA, issued a subpoena on Novem ber 4, 2013, com m anding the Departm ent o f Audit’s Director of Investigations, Huggins, to appear the n ext day , at 9 a.m ., at the f ederal building
i n Jackson, Mississippi, and to bring all the DMR records in the Departm ent o f A u d i t ’ s possession. ¶21. A r o u n d 2:40 p.m . on Novem ber 4, Huggins inf

orm ed the D e p a r t m e n t o f A u d i t attorney , Melissa Patterson, of the f ed e r al s ubpoena. A t around 5 p.m . that evening,
Patterson notif

ied the ch a n c ellor. Subsequently , at approxim ately 7:00 p .m . t hat evening,
Patterson and GP’s a ttorney , Laird, h a d a telephonic hearing with the chancellor. Laird suggested that Patterson s eek a m o tion to q uash or a protective order. But Patterson represented that she thought Huggins c ould, i nstead, appear b ef ore the grand jury and explain

9why he was unable to bring the records. 7 The chancery court ended t he hearing b y ordering

Patterson to produce the records to the chancery court by 9 a.m . on Novem

ber 5. ¶22. Shortly bef

ore m idnight on Novem ber 4, the c h a n c e l l o r e l e c t r o n i c a l l y f i l e d an

em ergency order im m ediately s ei z i n g the r ecords and ordering they be delivered to the chancery court so they could b e copied and B ates-stam ped b ef ore the Departm e n t of Audit

com plied with the f

ederal subpoena. ¶23. The next m orning, on Novem b er 5, Patterson contacted Investigator Chris Lott with the Departm ent of Audit t o arrange transportation of the records to the chancery court, but
l e arned t he records already had been transported to J a ckson. Patterson not i f i e d t h e chancellor, and another hearing was he l d t h a t d a y in w h ich the chancellor f ound the Departm ent of Audit in contem pt of h er October 31 bench ruling a nd subsequent em ergency order f iled by the court on t he Mississippi Electronic Courts (MEC) sy stem the night bef ore

on Novem

ber 4, directing t he D e p a r t me n t of A udit to deliver the DMR records to the Harrison County

Courthouse at 9 a.m

. ¶24. The chancery court issued a bench ruling on Novem b er 5, announcing:
I have no choice at this tim e but t o f ind that t he Auditor by acting in cooperation w ith the f

ederal prosecutor i s in direct contem pt of m y ruling and m y order of last w eek o n O ctober 31, and c ertainly in direct contem pt of m y protective order which I issued l a s t n i g h t. Now, even if the A uditor cooperated with the f

ederal pr o secutor pursuant to the subpoena p rior t o m y protecti ve order being issued last night, nevertheless, the Auditor was certainly aware and under this Court’s order to turn the docum ents over to the DMR.

7 A cco rd in g to th e reco r d , P atterso n d id n o t in f o rm th e ch an c ello r th at sh e (P atterso n ) w a s n o lo n g er “ callin g th e sh o ts” an d h ad b een rep laced b y P i z z e t t a f ro m th e A tto rn ey G e n e ral’s O f

f ice. 1 0¶25. That sam e d a y , on Novem ber 5, the state grand jury and the f ederal grand jury indicted several individuals in relation to the DMR investigation. Interlocutory Appeal ¶26. On Novem

ber 6, 20 1 3 , t h e A t t o r n e y General’s Of f i ce subm i tted a m otion in the chancery court to stay

all f urther proceedings pending appeal. And on Novem ber 8, 2013,

t h e D e p a r t m ent of Audit subm itted a com bined m otion to alter or am end the j udgm ent, to
vacate t he N ove mb e r 4 , 2 0 1 3, o rder, a nd t o stay all proceedings pending appeal. On
Novem ber 21, 2013, the D epartm ent of Audit petitioned this Court f or interlocutory appeal, along with a m otion to s tay the chancery court proceedings. On Decem ber 3, this C ourt denied both the petition f or interlocutory

appeal and the m otion to stay

. Contem pt ¶27. On Novem

ber 16, 2013, in an order f or direction, the chancellor i nvited GP to f ile a

m otion f or contem

pt because “the f

ederal grand jury subpoena itself did n o t prevent or

r e s t r i c t the c opy ing of the original records r equested by the subpoena.” GP subsequentl y f iled i ts m otion f

or civil contem

p t and a ttorney ’s f

ees against the Departm ent of Audit. GP did not allege that DMR or any other individuals were in contem pt. ¶28. The civil contem

pt hearing started o n D e c e mb e r 4 , 2013. At the beginning of the hearing, t he Departm ent of Audit m oved f or the chancellor to recuse herself , as she already had f o u n d t h e D epartm ent of Audit to be in contem pt and, thus, reasonably would be perceived as already having b i as in this m atter. T he chancellor held that the Departm ent of Audit had waived the issue and denied the m otion.

1 1¶29. To m ake its case f or contem pt, G P f irst called State Auditor Stacey Pickering to testif y as to why his of f ice chose to com

ply with the f

ederal subpoena. ¶30. Huggins was then called to testif y about the events leading up to the delivery of the records to the f

ederal grand jury , instead of the chancery court. According to Huggins, the AUSA, who was running the f ederal side o f the DMR investiga t i o n , contacted him on Novem ber 1, 2013. The AUSA asked Huggins to com e by the f ederal b uilding on Novem ber 4, causing Huggins to suspect that he m ight be issued a subpoena. Already concerned about

a f ederal subp o ena, Huggins had spoken with A ttorney General H ood, w ho advised, hy pothetically , should a f

ederal subpoena com e down, Huggins should com ply with it. ¶31. Huggins voluntarily went to the f

ederal courthouse on Novem b er 4 and was issued

a f ederal subpoena. Huggins said he initially thought he could com ply with both th e chancery court’s ruling and the f ederal subpoena. He had the records sealed and hoped that would be enough to appear b e f o r e t h e grand jury the next d ay and explain why he did not bring the records. ¶32. Unbeknownst to Patterson, around 6 p . m. o n Novem ber 4, Huggins decided he had

to show up at the f

ederal grand jury or f

ace f e deral p enalties. Huggins s aid his decision was based o n his conversation with Attorney General Hood a s well as a c onversation with the
AUSA. Huggins told the AUSA his plan to t ry t o com ply with both the chancery court’s ruling and the f

e deral s ubpoena, but the AUSA advised Huggins to com p ly w i t h the subpoena. H u g g in s testif ied th at h e called L o tt at ap p ro x im ately 6 :0 0 p .m . o n N o v em b er 4

. H u g g in s to ld L o t t th at h e (H u g g in s) h ad b een d irected b y t h e A U S A t o h av e th ese reco rd s

1 2in Jack so n b y 9 : 0 0 a . m. o n N o v e m b er 5

. H u g g in s s aid L o t t called h im a n h o u r later an d said , “We’v e d ecid ed to m o v e to n ig h t.” ¶33. The contem

p t hearing e n d e d w i t h the Departm ent of Audit i nf orm ing the chancery court that necessary

steps were being taken to release the records f rom the f ederal court.
Motion to Release ¶34. On Decem

ber 5, 2013, t he Departm ent of A udit f i led a m otion with the f

ederal district

court seeking perm ission to release the records to GP. On Decem ber 20, the f

ederal district

court ruled the records were n o t subject to f ederal grand-jury secrecy and, theref ore could be released. See United S

tates v. Walker , No. 1:13–CR–89–KS–MTP, 2013 W L 6805121, at *7 (S.D. Miss. Dec. 20, 2013). ¶35. Pursuant to the f

ederal district court order, on Decem ber 27, 2013, the AUSA released the records to the D epartm ent of Audit, w hich then delivered them to t h e c h a ncery court. Over the next two to three weeks, GP inspected and copied i n p a r t the r ecords under supervision of

the chancery court. Final Order ¶36. On M a y 2 7 , 2 0 1 4 , t h e chancellor entered a sixty -seven-page om nibus f i nal order. Ultim a tely , the chancellor concluded: (1) GP’s requests were not subject to any exem ptions; (2) GP’s requests were not subject to grand-jury secrecy ; (3) Any unadjudicated, posttrial m otions were denied; (4) DMR a cted in b a d f

aith, asserting def

enses f or the p urpose of delay in violation of the Mississippi Litigation Accountability Act (MLAA);

1 3(5) DMR willf ully and wrongf

ully denied GP’s requests; (6) The Departm ent of Audit also acted in bad f aith and willf

ully and wrongf ully denied GP’s requests; (7) The Departm ent of

Audit was in civil contem pt f rom Novem ber 4, 2013, until it purged itself on Decem ber 5, 2013. Theref

ore, the Departm ent of Audit was liable f

or attorney ’s f

e es and expenses resulting f rom the contem

p t; (8) GP was awarded attorney ’s f e es under the MPRA (Miss. Code Ann. § 2 5- 61-15 (Supp. 2016)), the M ississippi Litigation Accountability Act (MLAA) (Miss. Code Ann. § 11-55-5 (Rev. 2012)), a nd relevant caselaw f or contem pt and m onetary

sanctions f

or bad f aith; (9) DMR and the Departm ent of A u d i t w e r e jointly and severally liable f or $36,783.50 in attorney ’s f ees and $1,249.95 in expenses; and (10) The f

ollowing individuals were f ined $100 each “pursuant t o 2 5-61-15

.

. . f or their participation in the willf u l and wrongf

ul d enial of [ GP’s] p ublic record requests”: Auditor Stacey

Pickering Attorney General Jim

Hood Lead Investigator David Huggins Investigator Chris Lott Special Assistant Attorney General Melissa Patterson Special Assistant Attorney General Joseph Runnels Special Assistant Attorney General Sandra Chesnut Special Assistant Attorney General Harold Pizzetta
DISCUSSION

1 4¶37. As the Court of A ppeals correctly f ound, the Departm ent of Audit is considered a lawenf orcem ent agency . And as a l aw-enf orcem ent agency , investigative r eports in the agency ’s possession a re exem

pt f r om the MPRA. Miss. Code A n n . § 2 5

- 6 1

- 12(2)(a) (Supp. 2016). ¶38. B u t a s e vinced by the language of the subpoena s i s s u e d a t t h e b e h e s t o f t h e Departm ent of Audit, the docum ents sought f rom DMR were ori g i n al business records “having been used, being in use, o r prepared, possessed or r etained f or use in the conduct, transaction or perf

orm ance of

any business, transaction, work, duty or f unction of

[ DMR],

or required to be m a intained b y [ D MR].” Miss. Code Ann. § 25-61-3. Each subpoena was nearly identical to the records requests previously sought by The Sun Herald

. ¶39. On appeal, the appellants assert (as did the Departm ent o f Audit i n the chancery court) that these docum ents are exem pt under t he MPRA under g rand-jury secrecy principles. But as the chancery

court f o und, any such claim

was waived in this case. ¶40. A g a in, GP sued DMR in chancery court under the MPRA af ter DMR inf

o rme d G P it could no longer com

ply w ith GP’s record request due to the two grand jury subpoenas that

were issued to DMR. Af ter GP f iled suit against DMR, special assistant attorney s general

a s s i g n e d to both D MR and the D epartm ent o f Audit, a long w ith the Attorney Genera l ’ s Of f ice, d raf ted a nd subm itted a “ p r o t e c t i ve order” on behalf of DMR to the circuit court requesting that the circuit court m odif y the gra n d jury s u

bpoena(s) so as to allow DMR to release to GP copies of

the public records in DMR’s possession. 8

8 A s th e d issen t p o in t s o u t, th e p ro tectiv e o rd er w as su b m itted to th e circu it co u rt b y D M R

. B u t it w as “[ a] g reed to ” b y P a tterso n , S p e cial A ssistan t A tto rn e y G en eral assig n ed as co u n sel f

o r th e D ep artm en t o f

A u d it. 1 5¶41. The circuit court signed the order. But the order was lim ited to only t hose records that

rem ained in DMR’s possession, via electronic copies. The order did n ot provide f o r the unscanned and uncopied originals in the Departm ent of Audit’s possession. ¶42. Thereaf

ter, GP f iled a new lawsuit nam ing DMR and the S tate Auditor as def endants.
As part o f its answer, the Departm ent of Audit claim ed that the records in its possession were

exem pt under the MPRA’s i nvestigative-report exem ption. N o def

ense was asserted in the Departm ent of

Audit’s answer that these records were subject to grand-jury secrecy laws. ¶43. The c hancery court heard GP’s c laim s against DMR and the Departm e n t of Audit on October 3 0 and 31, 2013. Testim ony was provided a t t he hearings b y two investigators f or the Departm ent o f Audit in support of the Departm ent of Audit’s claim that the records in its possession f

ell under the MPRA’s investigative-report exem ption. The investiga t o r s s a i d these records would disclose t he identity of witnesses and im p ede the o n g o i n g DMR investigation. ¶44. But the investigators testif ied in general term s only

. And their testim o nies provided

no explanation or even i llustration as to how the u ncopied original records in the D epartm ent of Audit’s possession dif f ered in any way f

rom those r ecords also in the Departm ent of Audit’s possession but f

or which DMR retained electronic copies. ¶45. This, coupl e d w i t h the f act that a “protective order” draf ted by t he af

orem entioned special assistant attorney s g eneral only partly m o dif ied the g rand-jury subpoena(s), leads us
to no other conclusion than that reached b y t he c h a n c e r y court: the uncopied original

1 6docum ents i n the D epartm ent of Audit’s possession did not constitute “investigative reports”

exem pted by the MPRA. ¶46. W i th m

uch respect f

or the dissent, this is not the o nly reason why w e agree with the chancery court’s decision in this case. ¶47. As m entioned, each subpoena contained the f ollowing language: “This data is to be ‘retained i n-place’ a nd shall be accessible u pon dem and by agents o f the Mississippi Of f ice of the S tate Auditor and shall be released to no entity other than the Mississippi Office of the
State Auditor .” ( Em

phasis added.) This language e x tended bey ond a requirem ent to produce d o cum ents to the grand jury , a nd was akin to a w rit of m andam us or p rohibit i o n , t h a t prohibited a governm ental of f icial f rom perf o rm ing a specif

ic act. In other w o rds, it can be construed as requiring DMR n ot to honor a pending MPRA request. See e .g., Farson, Son
& Co. v. Bird , 248 U.S. 2 6 8, 270, 39 S. Ct. 111, 111, 63 L. E d. 233 (1919) (“[ T]he pray er

was tha t t h e c o u nty treasurer be m andam used to pay . . . .”). W e also recognize, as did the chancery court, t hat throughout all proceedings, a ll investigative agencies, state and f ederal, had access to these records. ¶48. Moreover, when the f ederal district court exam ined these docum ents f or purposes of Rule 6(e) of

the Federal Rules of

Crim inal Procedure, it f

o und as f ollows: [ T]he docum ents a re public records created by DMR and obtained by the State Auditor i ndependent of t h e g rand jury proceedings. T h e record contains no indication that disclosure would endanger the secrecy of the g rand j ury , which is the substantive purpose o f Rule 6(e)(2). T heref ore, based o n the inf

orm ation currently bef

ore the Court, the DMR records are not a “m atter occurring bef ore the grand jury , ” and they

are not subject to Rule 6(e)’s secrecy requirem ent.

. . .
1 7Accordi n g l y , the Court f inds that t he need f

or the DMR records to rem ain secret is outweighed by the State Auditor’s need to com p ly with the C hancery Court’s order, t he C hancery Court’s obligation to enf orce Mississippi’s Public Records Act, and the principle of com ity

. United States v. Walker , No. 1:13-CR-89-KS-MTP, 201 3 W L 6 8 05121, at **3, 6 (S.D. Miss. Dec. 20, 2013). ¶49. F o r t h e s e r e a sons, we f i nd that the chancery court did not abuse its discreti o n i n f inding that the Departm ent of Audit violated the MPRA by deny ing GP a ccess to the public records. 9 10 Even though t h e D e p a r t me n t of Audit was not an original party to these proceedings, the Departm ent of Audit delay e d and expanded this litigation with a series of actions that def

eated GP’s records request, beginning w i th the issuance of subpoenas

9 S ectio n 2 5 -6 1 -1 5 h as sin ce b een am en d ed an d states as f o llo w s: A n y p erso n w h o sh all d en y to an y p erso n access to an y p u b l ic reco rd w h ich is n o t ex em

p t f r o m th e p ro v isio n s o f th is ch a p ter o r w h o ch arg es an u n r easo n ab le f

ee f o r p ro v id in g a p u b lic reco rd m ay b e liab l e civ illy in h i s p erso n al cap acity in a su m n o t to ex ceed O n e H u n d red D o llars ($ 1 0 0

. 0 0 ) p er v io latio n , p lu s a ll reaso n ab le ex p en ses in cu rred b y su ch p erso n b rin g in g th e p ro ceed in g . M iss. C o d e A n n . § 2 5 -6 1 -1 5 (S u p p . 2 0 1 6 ).

10 T h e d issen t c o n ten d s th at M ississip p i O f f ice o f th e S tate A u d i to r, as a p u b lic b o d y , can n o t b e h eld l iab le u n d er S e ctio n 2 5 -6 1

- 1 5 b ecau se th e statu te clearly states th at o n ly a p erso n in h is in d iv id u al c ap acity can b e h e l d liab le, n o t a p u b lic b o d y . T h e c h a n cery co u rt’s o rd er f in d in g th at o f

f ice liab le u n d er th e M P R A w as n o t ch allen g ed o n th at g ro u n d

. F u rth er, b o th th is C o u rt an d th e C o u r t o f A p p eals h av e af f irm ed san ctio n s a g a in st p u b lic b o d ies u n d er th is sectio n . S

e e M ississip p i D ep ’t o

f W ild life, F ish eries a n d P a r k

s v . M ississip p i W ild life E n fo rcem e n t O

fficers’ A ss’n , In c. 7 4 0 S o . 2 d 9 2 5 , 9 3 7 ( M iss. 1 9 9 9 ) ( f in d in g t h at th e ch an cery c o u r t d id n o t err in assessin g p en alties ag ain st th e D e p artm e n t o f Wild lif e u n d er S ectio n 2 5 -6 1

- 1 5 ); a n d H a rriso n C o u n t y D ev. C o m m ’n v. K

in n ey , 9 2 0 S o . 2 d 4 9 7 , 5 0 3 -0 4 (M iss. 2 0 0 6 ) (f

i n d in g sam e w ith p e n a lties assessed u n d er S ectio n 2 5 -6 1 -1 5 ag ain st th e C o m m issio n ). 1 8dem anding that no one else h ave access to t he public records sought by GP. And when the

chancery court u ltim a tely decided that these docum ents were not exem pt under the MPRA, the Departm ent of Audit c ontinued to f rustrate GP’s r ecords request. T he D e p a r t ment of Audit t heref

ore i s liable f

or expenses and attorney ’s f e es in the am o unts f

ound and calculated by the chancery court. 11 ¶50. W e disagr e e with the c hancery court’s f inding that DMR v iolated the M PRA. The record illustrates, as the chancery court initial l y f o u n d , that DMR acted in g ood f aith to resolve the public-records request. Accordingly , we f ind that DMR is not joint and severally liable f o r attorney ’s f

ees, costs, and expenses, and we vacate that portion of the judgm ent. ¶51. Additionally , w e f ind no error in t he chancery court’s decision to f i ne Huggins $ 100 under Section 25-61-15. The record illustrates that Huggins knew on Novem ber 1, the day af ter t he c hancery c ourt issued its bench ruling on October 31, that he m ight b e subpoenaed by the AUSA t o p roduce the DMR records i n t h e D e partm ent of Audit’s custody

. Instead of c ontacting Patterson, Huggins called Attorney General Hood, who advised him to f ollow the instructions of the AUSA. On Novem b er 4 , H u g g i n s went to the f ederal courthouse, where he received a f

ederal grand-jury subpoena, which m irrored the s tate grand-jury subpoenas, albeit without the added language contained in the state s ubpoenas requiring the

11 W e disag r e e w i t h the dissent that t he chancery court assessed the Departm ent of Audit attorney ’s f

ees and expenses solely on the basis that it f ound t he Departm ent of Audit to be in contem

pt Novem ber 5 to Decem

ber 5

. B ased on our reading o f t he chancery court’s order, the chancery court held both the Depar t me n t o f A u d it and DMR joint a n d severally liable f or $ 36,783.50 in attorney ’s f ees and $1,249.95 in expenses f or v iolation of either the MPRA, and/or the M L A A, and/or f or contem p t of court. Further, even w hen a party purges itself of civil contem

p t, it still can be assessed attorney ’s f e es and expenses f

or causing that contem pt order to have been issued. 1 9DMR doc u m ents to rem ain i n place and not b e r eleased to any entity o ther than the

Departm ent of A udit. The f e deral grand-jury subpoena instructed that Huggins d eliver the
DMR d ocum ents in the Departm ent of Audit’s possession in Biloxi t o the f ederal courthouse in Jackson by

9:00 a.m

. ¶52. Testim ony f

r om State Auditor Pickering at the Decem ber 4 and 6 h earings shows that all attorney s representing h im and the Departm ent of Audit were assigned by the Attorney General’s of

f ice. According to Pickering, his as signed attorney , Patterson, had agreed to bring t he DMR r ecords to the courthouse as ordered by the chancery cour t

. Af ter the chancery court issued its O ctober 3 1 ruling, Pickering told his staf f “the Court has r

uled these records are public and open and should be copied, and let’s m ove f orward to d o so.” W hen Pickering was inf

orm ed t hat H uggins had been subpoenaed, he also was told there was a way
to com ply with both the o r d er and the f ederal subpoena. Pickering testif ied that Huggins

m ade the decision to transport the records to Jackson and he (Pickering) was n ot inf orm ed of the decision until af

t er the docum ents had been d elivered to Jackson. Huggins testif ied that he had been ordered by Pickering to m ake the DMR docum ents available to GP and had been i nstructed to honor the chancery court’s order. Huggins also testif i ed h e was aware that
Patterson had agreed to ma k e t he docum ents available to GP and to set up a procedure whereby an agent could be present to m aintain the Departm ent o f A udit’s chain of custody

. ¶53. W e agree with the chancery court that Huggins knowingly denied GP a c cess to the public docum ents af

ter the October 31 r

uling. Accordingly , w e f

i nd n o abuse of discretion in the chancery court’s decision to f ine Huggins $100 under Section 25-61-15.

2 0¶54. No record evidence was presented that P ickering, Lott, or Patterson p articipated in the

wrongf ul denial of GP’s recor d r e q u e s t s. Attorney General Hood and Special Assistant Attorney s General R

unnels, Chestnut, and Pizzetta were neither noticed n or called to testif y
at the Decem

b er hearings

. T h e r e f

o r e , w e m u st vacate that p ortion of the chancery court’s judgm ent assessing each of them f ines under MPRA. ¶55. Lastly , we speak brief ly t o the f

ederal grand-jury subp o e n a s i s s u e d t h r o u g h t he AUSA, by

reiterating to all concerned what the United States Suprem e C o urt has stated:
W e live in the ju r isdiction of t wo sovereignties, [ the state and f ederal governm e nts] each having its own sy s tem of courts to d eclare and enf orce its law s i n c o m m on territory

. It would be im possible f or such courts to f

ulf ill their r e s p e ctive f

unctions without em

barrassing conf

lict u nless rules were adopted by them t o avoid it. T he people f or whose benef

i t t hese two sy stem s are m ai n tained are deeply interested that each sy stem shall be ef f ective and unhindered in its vindication of its laws. T he situation requires, therefore, not only d efinite rules fixing the powers of the courts in cases of jurisdiction over the same persons a n d things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure

. Ponzi v. Fessenden , 258 U .S. 254, 42 S. Ct. 309, 66 L. Ed. 607 (19 2 2 ) ( e m p h a s i s added). No person or thing “can[ ] be in two places at the sam e tim e[ ;]” thus: [ t]he chief rule which preserves our two sy stem s of c ourts f rom actual conf

lict of jurisdiction is that the court which f irst t akes t h e s ubject-m atter of the litigation into i ts control, whether this be person or property , m ust b e perm itted to exhaust its rem edy , to attain which it assum ed control, bef ore t he o ther court shall attem

pt to take it f

or its purpose.
Id . at 260. ¶56. In Covell v Heym an , 1 1 1 U.S. 176, 4 S. Ct. 355, 28 L. Ed. 390 (1884), the Court also explained: The f orbearance which courts of co-ordinate jurisdiction, adm inistered under

2 1a singl e s y stem , exercise towards each other, whereby conf licts are a voided, by avoiding interf

e rence with the process of each other, is a principle of com i ty with perh a p s n o h igher sanction than the u tility which com es f rom concord; but between state courts and those of the United States, it i s som ething m ore. It is a principle of right and of la w , a n d t h e ref ore o f necessity

. It l eaves nothing to discretion o r m ere conveni[ e]nce. T h ese courts do not belong to the sam e sy stem , so f

a r a s their jurisdiction i s concurrent; and a l though[ ] they co-exist in the sam e space, they are i ndependent[ , ] a n d h ave no com m on superior. T hey exercise jurisdicti o n , i t is true, within the s am e territory , but not in the sam e p lane; and w hen one takes into its jurisdiction a specif ic thing, that res is a s m

uch withdrawn f

rom the judicial power of the other a s if it had been carried phy sically into a dif f erent territorial sovereignty

. To attem p t to seize it by a f oreign process is f

utile and void.
Id

. at 182. Undoubtedly , m u c h o f this m atter could have been a voided had this been regarded.
CONCLUSION ¶57. For these reasons, we reverse a nd v acat e t h a t p o r t i o n o f t h e C o u r t of Appeals’ judgm ent holding that the records sought b y G P in t he D epartm ent of A udit’s p ossession constituted investigati v e r e p o r t s e xem pted by the MPRA. W e r everse that portion of the
C o u r t o f A p peals’ judgm ent t hat reversed and rendered the c hancery c ourt’s judg m e n t a g a i n s t the Departm ent of Audit f or violation of the M P RA. W e r everse that portion of the Court of Appea l s ’ j u d g m e nt f

i nding that Huggins was not liable f or the $100 penalty provision under Section 2 5-61-15. W e a f f irm the chancery c ourt’s ruling that the D epartm ent of Audit is liable f or $36,783.50 in a ttorney ’s f ees and $1,249.95 in expenses. W e reverse and render the chancery court’s r

uling t hat DMR is joint and severally l iable f or the sam e. W e reverse and v acate t hat p ortion of the chancery c ourt’s judgm e n t assessing, pursuant to the MPRA,

a $100 f ine to Pickering, Hood, Lott, Patterson, Runnels, Chestnut, and Pizzetta. This case

2 2is rem anded f or proceedings consistent with this opinion. ¶58. A F F I R MED IN PART; REVERSED IN PART; VACATED I N PART; RENDERED IN PART; AND REMANDED IN PART.
W A L L E R , C . J . , R

A N D O L P H , P . J . , K

I N G A N D C H A M B E R L I N , J J . , C O N C U R . COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION. KITCHENS, P.J., MAX WELL AND ISHEE, JJ., NOT PARTICIPATING. COLEMAN, JUSTICE, DISSENTING: ¶59. I would af

f irm the C ourt of Appeals’ decision holding that the public records sought by Gulf Publishing C om

pany , Inc., were exem

pt u nder the Mississippi Public R ecords Act’s investigative-reports exem ption and that reversed the c h a n c e llor’s f inding of c o ntem

pt by the Departm ent of

Audit. Theref

ore, I dissent.
I. The Departm ent o f A u d i t did not w aive the investigative r eports ex em p tion under the Mississippi Public Records Act. ¶60. The chancellor f

ound and t he m ajority holds that t he D epartm ent of Audit waived any claim that the records sought by Gulf Publishing constituted investigative r ecords and theref ore were exem

pt under the Public R ecords Act. The m ajority bases i ts holding that the Departm ent of Audit waived the exem ption on the f

act that two s pecial assi s t a n t attorney s general, assigned to both the Departm ent of M arine Resources and the Departm ent of Audit, respectively , draf

t ed a nd subm itted a protective order requesting that the circuit court m odif y the grand jury subpoena to allow the Departm ent of Marine R e s ources to release to Gulf Publishing copies of t he public records. However, the m ajority cites no case or statutory law

to support the prop o s i t i o n that the Departm ent of Audit, which was not y et a party to the lawsuit, c o uld have w aived the exem ption t o the Public Records Ac t by the draf ting of a

2 3protective order by two special assistant attorney s general.

¶61. Mississippi C ode Section 25-61-12(2)(a) p rovides t hat “[ w]hen in possession of a law enf orcem ent agency , investigat i v e r e p o r ts shall be exem pt f rom the provisions of this chapter; however, a law enforcement agency, in i t s discretion, may choose to make public all or any part of the investigative report .” Miss. C ode Ann. § 25-61-12(2)(a) ( Supp. 2016) (em phasis added). The statute d o e s n ot p rovide t hat, if the law enf orcem ent agency does

m ake public any part of the investigative report, it waives the right to withhold other, undisclosed parts. In f

act, it provides the exact o pposite: that a law enf o rcem ent agency can provide only part of the investigative report or all of the i nvestigative report if it so chooses.
As the m ajority points o ut, the circuit court’s protective order a pplied only to records in the possession of the D epartm ent of Marine R e s ources, and did not apply to the contested, original docum ents that were in the sole possession of the Departm ent of A udit. ( Maj. Op.

at ¶ 41). The Departm ent o f A udit did n ot w aive the exem p tion a s to records that the attorney f o r the Departm ent of Audit did n o t a r r a n g e t o be included in t he c ircuit court’s order. The chancellor m ade, and the m ajority m akes, the m istake o f a pply ing an event and order applicable only to the r ecords possessed by Marine Resources to docum ents possessed only by the Departm ent o f A udit. There exists no evidence i n the record that the D epartm ent of Audit waived the exem

ption as to the docum ents in its sole possession. ¶62. Further, the protective o r der was s ubm itted by t he Departm ent of Marine Resources, and it wholly excluded the Departm e n t o f A u d it. The protective order was entered on January 22, 2013. The Departm e nt of Audit d id not becom e a party u ntil August 2013. Prior

2 4to the Depart m e n t o f A udit becom ing a party , G ulf Publishing never subm i tted a written

records request to the Departm ent of Audit. Bef ore being m ade a party , t he Departm ent of Audit did every i dentif

iable thing in its power to help t he Departm ent of Marine Resources,

w h i c h c ould not claim an exem ption under the Public Records Act, to com ply with t h e records request. Af

t er being m ade a party , the Departm ent of A udit im m ediately claim ed the

exem ption.
II. The records w e re ex em pt f r o m d i s c l o s u r e under the Public Records Act. ¶63. The subpoena issued by t he Harrison County Grand Jury r equired the Departm ent o f Marine Resources’ records to be “to be ‘retained in-place,’” t o “be accessible upon dem and by agents of the Mississippi Of f ice of State Auditor,” and to “be released to no entity other than [ the Departm ent of Audit].” The g rand jury never relinquished control of the records. The subpoena designated the Departm ent o f Audit as the custodian of the r ecords. Neither the grand jury nor the Departm e nt of Audit in i ts custodial capacity ever r eceived a written request f or the records. ¶64. Mississippi Code Section 25-61-11 provides: The provisions of this chapter shall not be construed to conf lict with, am end, repeal, o r supersede any constitutional law, state or f ederal statutory law, or decision of a court o f t his state or the United States which at the tim e of this chapter is ef

f e ctive or t h e r e a f

t e r specif ically declares a p ublic record to be c o nf idential or privileged, or p rovides that a public record shall be exem pt f rom the provisions of this chapter. Miss. Code Ann. § 25-61-11 (Supp. 2016). ¶65. Proceedings bef

ore the grand jury are secret. See Addkison v. State , 6 08 So. 2d 304,

2 5312 (Miss. 1992) (“It is elem ental that g ra n d jury proceedings are cloaked with secrecy .”)

(citing Miss. Code Ann. §§ 97-9-53 (1972), 13-5-61 (Supp. 1991)).
If a grand juror, witness, district a ttorney , clerk, sherif f , or any other of

f icer of the court, disclose the f

act of an indictm e nt being f ound or returned into court against a def

endant, or disclose an

y a ction o r proceeding h ad in relation the r e t o , b e

fore the finding of the indictment , or in six m onths thereaf ter, or until af t er the d ef endant shall have been arrested or g iven bail or r ecognizance to answer thereto, he shall be f ined not m ore than two hundred dollars. Miss. Code Ann

. 9 7

- 9

- 5 3 (1972) (em phasis added); see also Miss. R. Crim

. P. 13.5(b)(3).
In State Farm Fire and Casualty Co. v. Hood , the United States District Court f or the Southern District of Mississippi considered whether por t i o n s o f a c ourt record should be sealed pursuant to Sections 13-5-61 and 97-9-53. The Court held: The only docum ent brought to this court’s attention that is arguably d eserving of protection i s the grand jury subpoena i ssued t o State Farm on August 23, 2007. However,

. . . the court is not convinced that disclosure o f this subpoena would in a ny way reveal to the public the specif ics o f this grand jury investigation. The subpoena does not reveal the t arget of any i nvestigation or the issues being investigated.
State Farm Fire & Cas. Co. v. Hood , No. 2:07CV188 KS-MTP, 2007 W L 4208288, at *1 (S.D. Miss. Nov. 2, 2007). In the p resent case, Investigator Chris L ott testif ied that he “used
every thing that’s listed in [ t he] subpoena a s p art o f the investigation” and that the undisclosed records related to the two accounts w ould disclose t he identity of witnesses and def endants and i m

pede the ongoing investigation. T he records would r eveal the targets and specif ic issues being investigated. ¶66. Further, H arrison County Circuit C ourt Judge Roger Clark issued a protective order
f inding that the subpoena duces t ecum prohibited the Departm e nt of Marine Resources f rom

2 6com

ply i ng w ith the Public Records Act and allowing the release of docum en t s i n the Departm ent o f M arine Resources’ possession. Theref ore, t he subpoena requiring that the requested records be released to no entity other than t h e D epartm ent of Audit c reated an

exem ption under law f

or the requested records. ¶67. The ma

j o r i t y f urther f i nds that the records a t issue did not constitute “investigative reports” exem

pted b y the Public Records Act. Section 2 5-61-3 def ines investigative reports as f o llows: (f ) “Investigative report” m eans record s o f a l aw enf orcem e nt agency containing inf

orm ation b e y o nd the s c ope of the m a tters contained in an incident r eport, and generally will include, but not be lim ited to, the f ollowing m atters if bey ond the scope of

the m atters contained in an incident report: (i) Records t h a t a r e com

piled in the process of detecting and investigating any u n lawf

ul activity o r alleged unlawf ul activity , the disclosure of which would harm the investigation which m ay include crim e scene reports and dem onstrative evidence; (ii) Records that would reveal the identity of inf orm ants and/or witnesses; ( i i i) R ecords that would prem aturely release inf orm ation t hat would im pede the p ublic bod y ’s e nf orcem e nt, investigative or detection ef

f orts; (iv) Records that would disclose investigatory techniques and/or results of investigative techniques; (v) R ecords that would deprive a person of a right to a f air trial or an im p artial adjudication; (vi) Records that would endanger t he lif e or saf ety of a p ublic of f icial or law e nf

orcem ent p ersonnel, or conf idential inf orm a nts or witnesses; (vii) Records pertaining to quality control or PEER rev i e w

2 7activities; or (viii) Records that w ould i m p ede o r j eopardize a prosecutor’s ability to prosecute the alleged of f e nse. Miss. Code Ann. § 25-61-3(f ) (Supp. 2016). W e explained earlier in the y ear that: [ s]ubsection (3 ) ( f

) i s m eant to be read in conjunction with subsection (3)(e). Subsection (3)(f

) distinguishes the m ore detailed “investigative report,” which contains m atters that are bey ond the sim ple inf orm ation f

ound in an incident report, and gives an illustrative list of ty pe of inf orm ation. W hile MDOC is correct that the list is nonexhaustive, it is nonetheless l im ited to the scope of subsection (3)(f

). Sub section (3)(f

) chief ly contem

plates the i nvestigatory stage(s) of crim inal m atters, and it allows law enf orcem ent agencies to determ i n e w h a t is public record and what is not at this s tage of the c rim i nal process, so as not to jeopardize the investigation and/or endanger those af f iliated.
Miss. Dep’t of Corr. v

. R oderick & Solange MacArthur Justice Ctr. , No. 2 015-CA-00431- SCT, 2017 W L 1370983 (Miss. Apr. 13, 2017). ¶68. Af ter the protective order was entered, G u l f P u b l i s h i n g r e c e i v ed all the records requested except f

or certain unscanned, original docum ents r elated to t wo accounts. As noted above, Investigator C h r i s L ott testif ied that every

thing in the subpoena was u sed during the investigation and that the records would disclose the identity of witnesses and def endants and f rustrate t he ongoing investigation if specif ics were printed in the n ewspaper. It is clear that the rem aining docum ents, at least, f ell within t he investigative reports exem ption to the Public Records Act. ¶69. I am wholly unconvinced by the logic of t he m a jority and the c h ancellor that, because the circuit c ourt’s protective order “only partly ” m odif ied the grand j ury s ubpoena, the original, uncopied docum ents were not truly considered by t he Departm e n t o f A u d i t t o be

2 8investigative reports. (Maj. O p . a t ¶ 45). T he m odif ication to which I think the m ajority ref ers, that docum ents within the possession of the Departm e n t of Marine Resources could be produced to Gulf Publishing, continued the protection af f o rded by grand jury secrecy and the investigative reports e xception to the uncopied, original docum ents at issue. The record shows not that the Departm ent of Audit a nd its attorney s considered the uncopied, original docum ents to b e no dif

f erent than those already in the possession of Marine Resources, but rather t hat the Departm ent of Audit and its attorney s continued to assert that they were protected f

rom disclosure. It cannot f ollow, as it m

ust f o r t he m ajority t o be correct, that the Departm ent of Audit’s atto r n e y , P a t t e r s o n , involved herself in the proceedings in circuit court and agreed to the protective order that continu e d t o a p p l y the exem ption to the uncopied, original docum e nts even though s he saw no distinctions between the copied and u n c o p i e d original and undisclosed investigative docum e n ts.
III. The chancellor erred in hol ding the Departm ent of Audit in crim inal c ontem pt w ithout recusing for the m atter to be h eard by another judge. ¶70. The cha n c e l l o r ’ s f i n a l o r der f

ound the Departm ent of Audit in civil contem pt f or f ailing to abide by t he c hancellor’s orders directing that the docum ents be produced to Gulf
P u b l i s h i n g . As a penalty f or the civil contem

pt, the chancellor o rdered the Departm ent o f Audit to pay court costs and reasonable attorney s’ f ees f or the contem

pt pe r i o d , which the chancellor f

ound to be f

rom Novem

ber 5, 2013, to Decem

ber 5, 2 013. However, by the t im e the chancellor ordered the sanctions, the Departm ent of Audit had p urged the contem pt. Accordingly , the sanctio n s were not i ssued in o rder to com pel com p liance with the

2 9chancellor’s earlier orders but, rather, to punish. Theref ore, the chancellor m ischaracterized the contem

pt as civil; it w as crim inal contem p t. Furtherm ore, because m uch of the alleged

contem ptuous behavior took place outside the personal k nowledge of the chancellor, it was
constru c t i v e c rim inal contem pt. The law o n contem

pt required the c hancellor to recuse herself , but s h e d i d not. Her f a ilure to f

ollow the law on the instant point c onstitutes reversible error. ¶71. The m a

jority justif

ies af f irm an c e o f t h e c o n t e mp t o r d e r b y characterizing the sanctions as im

p arted pursuant to Section 25-61-15, which provides: Any person who s hall d eny to any person access to any public record which is not exempt f

rom the provisions of this chapter or who charges an u nreasonable f ee f or providing a public record m ay b e liable c ivilly in h is personal capacity in a s um not to exceed One Hundred Dollars ( $100.00) per violation, plus all reasonable expenses incurred by such person bringing the proceeding. Miss. C ode Ann. § 25-61-15 (Supp. 2016) ( e mp h a s i s added). Contrary to the m ajority ’s characterization of t he chancellor’s decision, the chancellor did not sanction the D epartm ent of Audit pursuant to Section 25-61-15. Rather, the chancellor entered a detailed order that explained at l ength that t he sanctions were intended as a civil contem p t p e n a l t y . The chancellor m erely

f ootnoted Section 25-61-15. ¶72. Moreover, there a r e a t l e a s t t w o p r o b l e ms w i t h the m ajority ’ s holding that the chancellor did not err in m aking the Departm ent of Audit p ay court costs and one m onth of Gulf P ublishing’s attorney s’ f ees pursuant to S ection 25-61-1 5 a l o ne. (Maj. O p. at ¶ 49). First, the r ecords in question are exem pt f o rm disclosure under the Public Records Act, so the Departm ent of Audit could not violate the statute. Second, the statute clearly states that

3 0a p erson in his individual c apacity can be l iable under S ection 25-61-15, not a public body

.

Theref ore, the Departm ent of Audit, a s a public body , cannot be liable under Section 25-61-
15. ¶73. Turning t o the vehicle actually chosen by the chancellor, she f ound t he D epartm ent of A udit in civil contem

p t of her October 31, 2013, b ench ruling ordering the D epartm ent of Audit t o c opy and produ c e t h e disputed docum ents and her Novem ber 4, 2013, order directing the Departm ent of A udit

– h o u r s bef ore the f ederal subpoena directed him to produce the docum ents – to copy the docum ents under the Court’s supervision. ¶74. I n short, I agree with the Court of Appeals. T he chancellor ordered the sa n c t i o n i n her order dated May 27, 2014, but f ound therein that the Departm ent of Audit had purged the

contem pt on Decem

ber 5, 2013. The purpose of civil contem pt is to com

p el c o m pliance with

a court order. In r e McDonald , 98 S o. 3 d 1 0 4 0 , 1 0 4 3 ( ¶ 7) ( Miss. 2012). Because the Departm ent of Audit had c o mp l i e d w i th the c o urt’s order m onths b ef ore the court set the sanctions, it is im

possible that the sanctions w ere im posed to com

pel c om pliance. Rather, the sanctions m

ust be considered t o be i m posed f or punishm ent and were, theref ore, proper only i f the Departm ent of

Audit was guilty

of crim inal contem

p t. Id. ¶75. Moreover, i f c o n t e mp t i t w a s , t h e Departm ent of Audit’s f ailure to com

ply was constructive contem

pt rather than direct contem pt. Constructive crim inal contem pt applies when the contemp t u o u s behavior occurs – even in part – outside the p resence of the trial judge. Id. at 1044 ( ¶ 6). On t he other hand, direct crim inal c o ntem pt o ccurs when the acts in question occur “in the very presence of the judge m aking all the elem ents of the of f ense

3 1personal knowledge.” Id. (citing V arvaris v. State , 512 S o. 2d 886, 887–88 (Miss.1987)).
In the c ase sub judice , the c hancellor f ound the Departm ent of Audit in contem pt f or several

acts that o c c u r r e d outside her presence and as to which she lacked personal knowledge, including delivering t he contested docum e n ts to the f ederal grand jury and f

ailing to produce the contested records to the Departm ent of Marine Resources. Accordingly , the contem pt, if any , was constructive crim inal contem p t. ¶76. A t rial judge who institutes constructive crim inal contem p t proceedings m

ust recuse and let the hearing be conducted by another judge. McDonald , 9 8 So. 3d a t 1044 ( ¶ 9). The Court has repeatedly so held. Id. In the instant case, the chancellor did not recuse herself ; the Court of Appeals c orrectly held that the f inding of civil contem

pt against the D epartm ent

o f A u d it m

ust be reversed. T he chancellor f urther erred in f

inding that t he Depart me n t o f Audit had waived her recusal, as the recusal is som e thing the law requires directly of the judge. Id. The party n eed not request it at all, and theref o re cannot waive i t by f

ailing to request it.
Conclusion ¶77. The f

acts of the i nstant c ase do not bear o ut the m ajority ’s h olding t hat the Departm ent of A udit waived the investigatory records exem ption or grand jury secrecy as to t he uncopied, original docum e nts that at the r e levant tim e were in the sole possession of t he D epartm ent of A udit. The f

acts show t he opposite: although the Departm e nt o f Audit acted t o f acilitate the dissem ination of thos e r ecords that had been copied and rem ained in the possession of the D epartm e nt o f Marine R e s o u r c e s, it continued to protect the uncopied, original

3 2docum ents. Protection f rom disclosure not being waived, I would hold that the chancellor erred in ordering their production to Gulf Publishing pursuant to both. ¶78. M o r e o v e r , p u r s u a n t t o well-established law, the chancellor erred in f inding t h e Departm ent of Audit in c rim inal contem pt w ithout recusi n g h e r s e lf

. In af f irm ing the

contem pt award against t he Departm ent of A udit, the m ajority underm i nes f undam ental due
process p r otections that should be available to parties accused o f constructive crim inal

contem pt. ¶79. Finally , in af

f i rm ing the c hancellor and reversing the Court of Appeals, the m ajority leaves unaddressed other assignm ents of error raised by the appellants t hat could r esult in a reversal of t he chancellor. For exam ple , t h e C o u r t o f Appeals d eclined to consider the Departm ent of Marine Resources’ arg u m e n t t h a t the chancellor erred in r ecanting earlier rulings in its f

a vor because it f

ound t h e i n v e stigative records exem ption issue to be dispositive o f a ll i ssues. The m ajority today rem ains silent as t o t he i ssue and other issues raised in the f

ive appellants’ brief

s, even though, on t he m erits, one or m ore of them m ight well com m and a dif

f erent holding f

rom us. The choice of a m ajority of t h e M i s s i s s i p pi Suprem e Court to ignore issues raised by parties appearing bef ore it t r o ubles m e. If the

m ajority does not wish to address them , perhaps t he m ajority should rem and the case to the Court of Appeals to consider the rem aining, as y et unaddressed, issues.

3 3