Mississippi Power Co. v. Mississippi Public Service Commission

135 So. 3d 887, 2014 WL 1395086, 2014 Miss. LEXIS 198
CourtMississippi Supreme Court
DecidedApril 10, 2014
DocketNo. 2013-CC-00682-SCT
StatusPublished
Cited by2 cases

This text of 135 So. 3d 887 (Mississippi Power Co. v. Mississippi Public Service Commission) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi Power Co. v. Mississippi Public Service Commission, 135 So. 3d 887, 2014 WL 1395086, 2014 Miss. LEXIS 198 (Mich. 2014).

Opinion

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Mississippi Power Company (“Mississippi Power”) filed documents asserting confidentiality with the Mississippi Public Service Commission (“Commission”) related to a certificate-of-public-convenience- and-necessity proceeding in January 2009. In July 2012, Bigger Pie Forum (BPF) requested three of those documents from the Commission, and Mississippi Power sought a protective order. Following a hearing, Hinds County Chancellor Dewayne Thomas ordered that the documents be produced. Mississippi Power appealed.

FACTS AND PROCEDURAL HISTORY

¶2. On January 16, 2009, Mississippi Power filed a “Petition for a Certificate of Public Convenience and Necessity!,]” requesting authority to construct an electric generation facility in Kemper County, Mississippi (“Kemper Project”).1 Associated with that filing, Mississippi Power filed documents with the Commission, at least some of which were marked “confidential.” Ultimately, the Commission approved the Final Certificate Order on June 3, 2010.

¶ 3. On July 3, 2012, Bigger Pie Forum (“Bigger Pie”)2 requested several documents from the Commission marked confidential by Mississippi Power during the certificate proceeding in January 2009. On August 6, 2012, the Hinds County Chancery Court granted Mississippi Power a temporary protective order which prevented the Commission from releasing the “confidential” documents pending a hear[889]*889ing on the matter. Following a hearing on September 18, 2012, Hinds County Chancellor Dewayne Thomas denied Mississippi Power’s “Petition for Protective Order” and ordered that the documents be produced within ten days of his April 2013 ruling. Subsequently, Mississippi Power filed a “Notice of Appeal” and an accompanying motion to stay the order pending resolution of the appeal. The chancellor granted Mississippi Power’s motion to stay.

¶ 4. Although the chancery court granted Bigger Pie access to the requested documents, in its brief to this Court, Bigger Pie “reviewed its requests for disclosure ... and clarif[ied] exactly what portions of the three withheld documents it ... seeks disclosure.” Bigger Pie narrowed the information at issue to “the long term natural gas price forecast and a forecast of the economic impact of pending federal legislation of greenhouse gas emissions.” Bigger Pie seeks the forecast information Mississippi Power presented to the Commission in support of its choice of the Kemper plant as opposed to the other alternatives considered, ie., natural gas and nuclear. Bigger Pie argues, inter alia, that Mississippi Power’s choice of alternatives directly affects the “rates” that customers will be charged; therefore, under Mississippi Code Section 79-23-1(1),3 the information should be made available.

¶ 5. Mississippi Power argues that the information does not affect “rates” as contemplated by statute, and, even if it does affect rates, the information is nonetheless protected as “trade secrets or confidential commercial or financial information,” under Section 79-23-l(2).4 Mississippi Power also argues that the information was presented in a certificate-of-need (CON) proceeding — not a rate proceeding. Mississippi Power presented the documents under seal and requested that this Court conduct an in camera inspection, arguing that this case “involve[s] a straightforward matter of statutory interpretation as applied to the documentary evidence submitted by the parties.”

¶ 6. After the parties had fully briefed the issues before this Court, on October 21, 2013, Bigger Pie filed a “Motion ... to Dismiss [Mississippi Power’s] Appeal and Determine Damages pursuant to Rule 38 MRAP.” Bigger Pie asserted that it had learned, after filing its brief, that Mississippi Power had provided the same forecast information sought by Bigger Pie to the Wall Street Journal (WSJ) in July 2012. That information was published in an article by the WSJ regarding the Kem-per project. Bigger Pie further asserted:

“It is apparent that the tablet5] of long term natural gas prices and C02 cost [890]*890assumptions that the WSJ obtained from Southern/MPC ... is the information that BPF sought in its public records request.... Further, it is apparent that the natural gas price forecast and C02 cost assumption data revealed ... by Southern/MPC to the WSJ regarding the Kemper IGCC constitutes the data BPF sought in un-redacted form.... ”

Bigger Pie sought a damages sanction, arguing that Mississippi Power’s claim of “confidentiality” was fraudulent in light of the fact that it had released the same information to the WSJ.

¶ 7. Then, the very next day, Bigger Pie filed a motion withdrawing its October 21 motion, stating that it had conducted a search of its own records and discovered that Bigger Pie had “received the fuel price data [from Mississippi Power] ... that the Wall Street Journal has now published.” As a result of Bigger Pie’s request to narrow the scope of the appeal and [Bigger Pie’s post-brief revelations[,] it appeared that this appeal may be moot]. Thus, on December 13, 2013, this Court ordered “that the parties shall show cause why this proceeding should not be dismissed as moot and vacate the order of the chancery court.”

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

The long term natural gas price forecast with C02 cost assumptions that [Mississippi Power] emailed to [Bigger Pie] in 2012 is a filing [Mississippi Power] made with the [commission] eleven months later dated December 7, 2009. [Bigger Pie] seeks the earlier January 19, 2009 long term natural gas forecast and C02 cost assumptions....

Bigger Pie submitted that this Court should “compare the sealed ... documents” with the forecast chart given to the WSJ and Bigger Pie in August 2012. If “the two forecasts are different,]” Bigger Pie contends “this case is not moot.”

¶ 9. In its “Response to Order to Show Cause[,]” Mississippi Power submitted that “the documents [it] filed confidentially with the ... Commission and that are the subject of this appeal are distinctively different than the information [Mississippi Power] provided to Bigger Pie and the Wall Street Journal.” Mississippi Power reiterated its argument that the documents “contain confidential, proprietary and/or trade secret information[,]” and are not subject to disclosure.

ANALYSIS

¶ 10. A review of the documents under seal and the forecast chart published by the WSJ reveals that the sealed documents contain information that is similar in kind, yet “distinctively different” from that published by the WSJ. The sealed documents contain various charts and graphs which pertain to natural gas price forecasting and C02 cost assumptions. The documents also contain information that does not relate to natural gas price forecasting and C02 cost assumptions.

¶ 11. First, we will address the latter information. Bigger Pie voluntarily narrowed the scope of the information that it sought on appeal to “the long term natural gas price forecast and C02 cost assumptions.” Bigger Pie is not seeking information which is outside its stated scope.

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Bluebook (online)
135 So. 3d 887, 2014 WL 1395086, 2014 Miss. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-power-co-v-mississippi-public-service-commission-miss-2014.