Buckel v. Chaney
| Docket Number: | 2009-CA-01602-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-04-2010 Opinion Author: Carlson, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Public Records Act - Affidavit from interested witness - Section 25-61-3(b) - M.R.C.P. 56(e) - Response to summary judgment - Proper records request - Section 25-61-5 - Exemption - Section 25-61-11 - Section 83-5-209(7) Judge(s) Concurring: Waller, C.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 09-02-2009 Appealed from: Hinds County Chancery Court Judge: J. Dewayne Thomas Disposition: The trial court granted summary judgment in favor of the Miss. Commissioner of Insurance. Case Number: G2009-909-T1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kevin Buckel |
EDWARD GIBSON |
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| Appellee: | Mike Chaney, Commissioner of Insurance | OFFICE OF THE ATTORNEY GENERAL: LOWRY CHRISTOPHER LOMAX, LISA LOUISE COLONIAS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Public Records Act - Affidavit from interested witness - Section 25-61-3(b) - M.R.C.P. 56(e) - Response to summary judgment - Proper records request - Section 25-61-5 - Exemption - Section 25-61-11 - Section 83-5-209(7) |
| Summary of the Facts: | On January 4, 2009, Kevin Buckel submitted a public-records request under the Mississippi Public Records Act to the Mississippi Insurance Department, requesting any data in the possession of MID concerning homeowner insurance claims as a result of Hurricane Katrina, excluding Wind Pool and Flood Claims. 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 section 25-61-5), 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 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. Buckel filed 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. The Commissioner filed a motion for summary judgment which the court granted. Buckel appeals. |
| Summary of Opinion Analysis: | Issue 1: Interested witness Buckel argues for the first time on appeal that the chancellor incorrectly assigned evidentiary value to the affidavit of an interested witness. Under section 25-61-3(b), the Commissioner attempted to set forth facts showing that MID did not “possess” the public records Buckel had requested. The Commissioner provided an affidavit of MID employee Donna Cromeans 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. Buckel, however, failed to contest this affidavit in the trial court and, therefore, may not contest it for the first time on appeal. In addition, Buckel still would not be entitled to relief. M.R.C.P. 56(e) provides that supporting 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. 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. Here, the chancellor did not err in allowing and considering Cromeans’s affidavit. Her affidavit was based on personal knowledge and was not conclusory. Buckel has presented no evidence that the affidavit is self-serving, except for the fact that Cromeans worked at MID. Issue 2: Response to summary judgment Buckel argues that 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. 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. 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 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. 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. Buckel has not presented circumstantial evidence sufficient for a trier of fact to find that the Commissioner possessed the documents requested. Moreover, Buckel has cast no doubt on the affidavit in support of the Commissioner’s motion for summary judgment. Issue 3: Proper records request The chancellor determined that Buckel had improperly requested documents underlying the Market Conduct Report from MID under section 25-61-5. 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 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.” Buckel argues 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. As indicated in section 25-61-5, a public body may set forth standards by which the public requests such documents. By regulation, 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.” 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. Because Buckel sought such specific information and knew the desired record from which the information was derived, the chancellor did not err in finding that Buckel did not make a proper records request. Issue 4: Exemption The issue of statutory interpretation before the Court is whether the Mississippi Public Records Act exempts the examination materials Buckel requested. Pursuant to section 25-61-11, section 83-5-209(7) creates an exemption to the Act and grants the Commissioner discretion in determining whether to disclose examination documents. Buckel takes issue with the “shall be exempt” language in the Records Act and the discretionary language in Section 83-5-209(7). The two statutes, when read together, do conflict, but are not in irreconcilable conflict, and should be harmonized, giving effect to each. 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. Thus, 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. |
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