DOCUMENT 56

ELECTRONICALLY FILED
5/6/2021 2:50 PM
31-CV-2021-900081.00
CIRCUIT COURT OF
ETOWAH COUNTY, ALABAMA
CASSANDRA JOHNSON, CLERK
IN THE CIRCUIT COURT OF ETOWAH COUNTY, ALABAMA

CHOICE FABRICATORS, INC, )

ADVANCE ETOWAH, )
Plaintiffs, )
)
V. ) Case No.: CV-2021-900081.00
)
ROBERTS, CITY ATTORNEY LEE, )
HARE, GENERAL MANAGER CHAD, )
HOOKS, EXECUTIVE DIRECTOR
)
DAVID,
Defendants. )

ORDER DENYING MOTIONS TO DISMISS

This case was commenced on February 10, 2021, with the filing by Choice Fabricators,
Inc., and Advance Etowah of a Petition for a Writ of Mandamus and Complaint for Declaratory
Judgment against Lee Roberts, in his official capacity as City Attorney for the City of Gadsden
[“the City”]; Chad Hare, in his official capacity as the General Manager of the Gadsden Water
Works and Sewer Board [“GWWSB”]; and David Hooks, in his official capacity as Executive
Director of the Gadsden-Etowah Industrial Development Authority [“IDA”]. The Petition
alleges that the Plaintiffs oppose what they characterize as the Defendants’ intent and desire to
locate a rendering plant on Steele Station Road, in Gadsden, Alabama, and that they seek to
promote governmental transparency and accountability for the betterment of Etowah County.
Toward that end, they allege, they sought public records from the Defendants.

The Plaintiffs contend that the Defendants, as custodians of the records for public entities, are
required to maintain and make available public writings and records in conformity with
Alabama’s Open Records Act. They allege that the Defendants have failed or refused to provide
the records requested, and seek a judgment declaring that the documents sought are public
writings under the Act, and that the withholding of the requested public writings is unlawful.
They ask that a writ of mandamus issue from the Court directing the Defendants to make the
requested records promptly available to the Plaintiffs.

The City filed a Motion to Dismiss and a Motion for Protective Order, GWWSB filed a Motion
to Dismiss, and IDA filed a Motion to Dismiss Pursuant to Rule 12(b)(6). Hearing on the
motions was held before the Court on April 8, 2021. Present for the hearing were Christie D.
Knowles, Attorney for the Plaintiff; Bradley W. Cornett and Jack Lee Roberts, Jr., Attorneys for
the City; F. Michael Haney, Attorney for GWWSB; and Jonathan M. Welch, Attorney for IDA.
Upon due consideration by the Court of the pending motions, oral arguments presented in
support of and in opposition thereto, and briefs filed with respect thereto, it is found and ordered
as hereinafter provided.
 DOCUMENT 56

Arguments were presented on all of the Defendants’ motions, and certain of the Defendants
adopted arguments raised by the other Defendants. One argument was applicable only to the
IDA. The Court will address each argument presented, without regard to which of the
Defendants first presented such argument. The Court thereafter will address the argument
applicable to the IDA only.

Alabama’s Open Record Act. Section 36-12-40, Alabama Code (1975), as amended, provides in
relevant part as follows:

Every citizen has a right to inspect and take a copy of any public writing [emphasis
added] of this state, except as otherwise expressly [emphasis added] provided by statute.

The records sought from the City pursuant to the Open Records Act, by the request of November
20, 2020, were those regarding:

1. All transactions, negotiations, emails, conversations, contracts, ADEM permits,

FAA permits or requests for permit or any document of any nature whatsoever regarding
the proposed Pilgrim’s Pride/JBS USA, Inc., animal feed ingredient production plant the
subject of ADEM Facility No 307-0051. (the “Proposed Project”);

2. Any travel, food, gifts or site visits by employees, council members, agents or
contractors of the City of Gadsden Industrial Development Authority, Gadsden Airport
Authority, or others relating to Pilgrim’s Pride (or any of its parents, subsidiaries or
affiliates) of the Proposed Project;

3. All solicitations, recruitment or invitation by the City, The Gadsden Airport

Authority, the Gadsden Industrial Development Authority, or others, directed to or from
Pilgrim’s Pride (or its parent, affiliate or subsidiary companies) relating to the Proposed
Project; and

4. All tax abatements, zoning applications, permits, licenses or other documents

related to Pilgrim’s Pride, JBS USA, Inc. and the Proposed Project.

The records sought from GWWSB by the request of December 14, 2020, were those
regarding:

1. All transactions, documents, emails, studies, reports, conversations, contracts,

ADEM permits, FAA permits or requests for permit or any document of any nature
whatsoever regarding the proposed Pilgrim’s Pride/JBS USA, Inc., animal feed
ingredient production plant. (the “Proposed Project”). This request is not limited to the
project on Steele Station Road and should include all documents related to the Proposed
Project regardless of its intended or proposed location(s).

2. Any travel, food, gifts or site visits by employees, council members, agents or
contractors of the City of Gadsden, Gadsden Industrial Development Authority, Gadsden
 DOCUMENT 56

Airport Authority, or others relating to Pilgrim’s Pride (or any of its parents, subsidiaries
or affiliates) of the Proposed Project;

3. All solicitations, recruitment or invitation by the Authority, City of Gadsden,

Gadsden Airport Authority, or others, directed to or from Pilgrim’s Pride (or its parent,
affiliate or subsidiary companies) relating to the Proposed Project.

The records sought from IDA by the request of November 20, 2020, were those
regarding:

1. All transactions, negotiations, emails, conversations, contracts, ADEM permits,

FAA permits or requests for permit or any document of any nature whatsoever regarding
the proposed Pilgrim’s Pride/JBS USA, Inc., animal feed ingredient production plant the
subject of ADEM Facility No 307-0051. (the “Proposed Project”);

2. Any travel, food, gifts or site visits by employees, council members, agents or
contractors of the City of Gadsden, Gadsden Industrial Development Authority, Gadsden
Airport Authority, or others relating to Pilgrim’s Pride (or any of its parents, subsidiaries
or affiliates) of the Proposed Project;

3. All solicitations, recruitment or invitation by the Authority, City of Gadsden,

Gadsden Airport Authority, or others, directed to or from Pilgrim’s Pride (or its parent,
affiliate or subsidiary companies) relating to the Proposed Project;

4. Minutes, resolutions, meeting notices and agendas for all meetings related to
Pilgrim’s Pride and the Project.

The arguments presented in support of the Motions to Dismiss are as follows:

1. Lack of Standing. The Defendants argue that one or more of the Plaintiffs failed to
plead the prerequisites necessary to prosecute a claim pursuant to Alabama’s Open Records Act.
They contend that the Plaintiffs lack standing to maintain this action, as the requests for records
they received came from Christie D. Knowles, Attorney for the Plaintiffs, not from either of the
Plaintiffs. They also argue that Plaintiff Advance Etowah was not formed until on or about
December 15, 2020, nearly a month after the November 20, 2020 request, and a day after the
request to GWWSB. Such Plaintiff responds that while it may not have been formed by that
date, further requests on its behalf have been made since its formation.

With respect to the contention that the request was made by Christie D. Knowles, individually,
the context of the letters of request reviewed by the Court clarifies as follows that the request
was being made on behalf of Ms. Knowles’ client, Choice Fabricators, Inc.:

As you know, I have expressed concerns on behalf of my client, Choice Fabricators,

Inc., regarding Pilgrim’s Pride ADEM permit application for the Proposed Project. The
Proposed Project will impact public health, local residents and business owners as well
as my client. It is for this purpose that I am requesting the information.

The Court finds that the Plaintiffs had standing to file its Petition in this case.
 DOCUMENT 56

2. Confidentiality of Records Sought. The Defendants argue that the requests for records
made as set out above are overly broad and encompasses documents that are confidential and
prohibited form disclosure pursuant to Sections 40-9B-6, 41-29-285, and 41-29-3, Alabama
Code (1975), as amended, and certain additional language in Section 36-12-40 (from the Open
Records Act) itself. The City argues that disclosure of confidential economic development
records jeopardizes not only the Pilgrim’s Pride project, but also, future economic development
projects in Etowah County. It argues that companies considering significant economic
investment in Etowah County could not proceed with economic development activities without
fear of public disclosure.

The City asks that the Court enter a protective order prohibiting disclosure of confidential
economic development records, and providing that upon provision of documents to the Plaintiffs
in response to the request, they be required to return any privileged documents inadvertently or
mistakenly produced.

The Court begins its analysis of confidentiality of records sought under the Open Records Act
with the following observation by the Alabama Supreme Court, quoting with approval a trial
court’s judgment in a decision rendered several decades ago:

. . . the public has a right to know not only the information these public officials desire to
make public, but also all other information which is neither sensitive nor confidential.
Without this right, the public is forced into receiving just that information that public
officials allow to be discussed at open public meetings - - a practice that is contrary to the
fundamental and essential principles of democracy and of established public policy.
Public information may not be sifted through by public officials and trickled down to the
citizens of this state at the whim of those officials.

Chambers v. Birmingham News Company, 552 So.2d 854, 855 (Ala. 1989). The Court
proceeded to find that it was clear from the wording of Section 36-12-40 (from the Open
Records Act) that the legislature intended that the statute be liberally construed. Id. at 856. It
noted the following three exceptions to the disclosure obligation, recognized in a decision some
years earlier: (1). recorded information received by a public officer in confidence; (2). sensitive
personnel records; and (3). records the disclosure of which would be detrimental to the public’s
best interest. Id. at 856, citing Stone v. Consolidated Publishing Company, 404 So.2d 678 (Ala.
1981).

The Court proceeded in Chambers to caution that the exceptions to the liberal disclosure called
for by Section 36-12-40 should be “strictly construed”, and applied only in the following cases:

. . . where it is readily apparent that disclosure will result in undue harm or

embarrassment to an individual, or where the public interest will clearly be adversely
affected, when weighed against the public policy considerations suggesting disclosure.
These questions, of course, are factual in nature and are for the trial judge to resolve.
Moreover, the Stone exceptions should not come into play merely because of some
perceived necessity on the part of a public official or established office policy.
Furthermore, because there is a presumption of required disclosure, the party refusing
disclosure shall have the burden of proving that the writings or records sought are within
 DOCUMENT 56

an exception and warrant nondisclosure of them. [emphasis added].

Doubtless, exceptions to the broad language of Section 36-12-40 are needed and should
be applied under appropriate circumstances. But, we emphasize that these exceptions
must be narrowly construed and their application limited to the circumstances stated
herein, for it is the general rule, and has been the policy of this state for a number of
years, to advocate open government. The Stone exceptions were not intended, nor shall
they be used, as an avenue for public officials to pick and choose what they believe the
public should be aware of.

552 So.2d at 856-57.

Given the clear language of the Alabama Supreme Court from the Chambers decision, the next
step in the analysis is a determination as to whether the disclosures they challenge fall within one
of the narrow exceptions to the disclosure obligation. There is no issue before the Court of
sensitive personnel records being sought, and this Court finds that the disclosures sought would
be beneficial, rather than detrimental, to the public’s best interest. Accordingly, the mandamus
sought ultimately would appear due to be denied only to the extent that the records sought are
shielded from disclosure by a statutory confidentiality provision articulated by the Defendants,
discussed as follows.

3. Sections 40-9B-6, Alabama Code (1975), as amended. This is the first purported
statutory exception cited by the Defendants. It provides that a private user of industrial
development property or of a major addition shall file with the Alabama Department of
Revenue, a copy of any agreement entered into with a governmental entity with respect to tax
abatements. It further provides that the Department of Revenue shall keep such agreement
confidential unless consented to in writing by the private user. The statute imposes the obligation
to maintain such confidentiality only upon the Department of Revenue, however, not upon the
governmental entity or on the private user. This statute thus fails to provide the Defendants with
an exception from the disclosure obligation.

4. Sections 41-29-285, Alabama Code (1975), as amended. This statute provides that all
information concerning a proposed project which is provided to the director of the Alabama
Department of Commerce and AIDT (Alabama Industrial Development Training) shall be
confidential. A reading of the following quoted remainder of the statute, however, makes it clear
that the prohibition against disclosure is imposed only upon AIDT, its employees or contractors,
not upon local governmental entities:

AIDT, through the director, is authorized to enter into a confidentiality agreement or

other contract provision with a prospective entity considering locating or expanding
within the state which prohibits the disclosure by AIDT or any of its employees or
contractors [emphasis added] of the identity of the prospective entity and any information
obtained, whether orally or in writing, by such person about the entity’s proposed
project. Further, AIDT, through the director as approved by the Secretary of Commerce,
is authorized to enter into a confidentiality agreement or other contract provision with a
prospective entity who is considering locating or expanding or has relocated or expanded
within the state to reasonably protect trade secrets or other confidential business
 DOCUMENT 56

information of such entity. Such confidentiality agreement or other contract provisions

shall not otherwise limit the disclosure under applicable open records laws of public
documents which describe the nature, quantity, cost or other pertinent information related
to the activities of, or services performed by, AIDT.

This statute also fails to provide the Defendants with an exception from the disclosure
obligation.

5. 42 U.S.C. Section 5195c(e), as amended, and critical energy infrastructure

information (as defined at 18 C.F.R. Section 388.113(c)(1), as amended). The Defendants
further argue that the right to public records under Section 36-12-40, et seq., is not absolute, in
that there is specifically excluded from disclosure, industries protected by 42 U.S. Code Section
5195c – critical infrastructures protection, and that the nation’s food and agricultural systems
(including the proposed rendering plant) fall under such protection.
The portion of Section 36-12-40 in question is the following:

Notwithstanding the foregoing, records concerning security plans, procedures,

assessments, measures, or systems, and any other records relating to, or having an impact
upon, the security or safety of persons, structures, facilities, or other infrastructures,
including without limitation information concerning critical infrastructure (as defined at
42 U.S.C. Section 5195c(e) as amended) and critical energy infrastructure information
(as defined at 18 C.F.R. Section 388.113(c)(1) as amended) the public disclosure of
which could reasonably be expected to be detrimental to the public safety or welfare, and
records the disclosure of which would otherwise be detrimental to the best interests of the
public shall be exempted from this section. Any public officer who receives a request for
records that may appear to relate to critical infrastructure or critical energy infrastructure
information, shall notify the owner of such infrastructure in writing of the request and
provide the owner an opportunity to comment on the request and on the threats to public
safety or welfare that could reasonably be expected from public disclosure on the
records.

The Defendant’s reliance upon the foregoing as the basis for an exception from the disclosure
obligation would appear to be is misplaced. 42 U.S.C. Section 5195c(e) defines “critical
infrastructure” as follows: “In this section, the term “critical infrastructure” means systems and
assets, whether physical or virtual, so vital to the United States that the incapacity or destruction
of such systems and assets would have a debilitating impact on security, national economic
security, national public health or safety, or any combination of those matters”. 18 C.F.R.
Section 388.113(c)(1) defines “critical energy infrastructure information” as information related
to critical electric infrastructure, or proposed critical electrical infrastructure, generated or
provided to the Federal Energy Regulatory Commission or other federal agency other than
classified national security information.

So far as the Court understands, no part of the rendering plant which is the subject of this case
has been constructed, so there is no physical infrastructure at risk of being incapacitated or
destroyed as a result of the requested disclosures. Because the business sought to be located at
 DOCUMENT 56

the plant is not in operation, the Court fails to understand how virtual systems and assets with
respect thereto could presently be endangered by the disclosures. Finally, the Court fails to
understand how the challenged disclosures might conceivably be deemed to threaten national
security, public health or safety. In any event, under the holdings in Chambers, the burden is on
the Defendants to demonstrate that this exception has any relevance to the disclosures requested.
Without more, the Court cannot find that this exception to the Open Records Act disclosure
obligation applies in this case.

6. Sections 41-29-3, Alabama Code (1975), as amended. This statute provides as follows:

(a)(1) The Secretary of Commerce shall be notified in writing about the general
parameters of a project if an entity is considering locating or expanding a facility at a site
within this state and intends to claim any of the incentives provided by the State of
Alabama that are described in subdivision (2)) (the “required notification”). The required
notification should be made as soon as the project’s parameters are generally known or
when a site or sites have been identified by a project entity or a visit is made to the State
of Alabama by the project entity or its representative. The initial required notification
may be made on an anonymous basis (i.e., “Project Alpha”) in order to protect the
confidentiality of a proposed project. Upon timely notifying the secretary within the time
frame specified in this subdivision, the secretary shall transmit a letter to the project
entity or its representative acknowledging receipt of the required notification (the
“notification acknowledgment letter”).

(2) The required notification set forth in subdivision (1) applies to any of the following:

a. The jobs credit provided for by Section 40-18-375.

b. The investment credit provided for by Section 40-18-376.

c. Any action by a local government body pursuant to Amendment 772 of the

Constitution of Alabama of 1901, now appearing as Section 94.01 of the Official
Recompilation of the Constitution of Alabama of 1901, as amended, or local amendment
of similar effect.

d. Any abatement of taxes pursuant to Chapters 9B or 9G of Title 40.

e. The port credit provided for by Section 40-18-413.

g. Site preparation grants pursuant to Article 5 of Chapter 29 of this title.

h. Funding for access roads and bridges through the Alabama Industrial Access Road
and Bridge Corporation pursuant to Chapter 6 of Title 23.

i. Training or other assistance from the Alabama Industrial Development Training

Program.

j. Any grant of federal funds administered or otherwise involving any state or local
government, agency, department, body, or other entity, related to the location or
 DOCUMENT 56

expansion of a facility at a site within this state.

k. Any direct or indirect cash payment for a project from the State of Alabama related
to the location or expansion of a facility within this state, whether in the form of an in-
kind contribution of a site, building, or equipment, or otherwise.

(3) Unless the secretary should specially determine to the contrary, the notification set
forth in subdivision (1) shall be available for public inspection two years after a project
entity publicly commits to a site for development, whether the publicly-committed site is
in this state or elsewhere.

(b) Except as provided in Chapter 25A of Title 36 [Alabama’s Open Meetings Act] and
any constitutional or statutory disclosure requirements for obtaining the economic
development incentives listed in subdivision (2) of subsection (a), all information
concerning a proposed project seeking an economic development incentive which is
provided to any state or local government, agency, department, or other entity seeking an
economic development incentive shall be confidential. Any state or local government,
agency, department, or other entity, or the secretary on their behalf is authorized to enter
into a confidentiality agreement with a project entity which prohibits the disclosure of the
identity of the project entity and any information obtained, whether orally or in writing,
about the entity’s proposed project. Unless the secretary should specially determine to the
contrary, such confidentiality agreements shall terminate two years after a project entity
publicly commits to a site for development in this state.

Provided, however, such confidentiality agreements shall not supercede or conflict with
statutory provisions requiring either of the following:

(1) Notice to the entities for which a governmental body or board intends to abate taxes.

(2) Public disclosure of information for applications for governmental approvals such as
permits.

(c) The secretary may adopt rules to implement this section.

7. Narrow Field of Operation for Statutory Exception from Disclosure Obligation.

Based upon the foregoing discussion of the three statutes cited by the Defendants as
affording exceptions to the disclosure obligation, only the last one discussed, Section 41-
29-3, Alabama Code (1975), as amended, appears to provide an applicable exception.
Even that exception, however, has a narrow field of operation, available to the
Defendants only under the following circumstances:

1. The information concerning a proposed project seeking an economic development

incentive, otherwise due to be disclosed, is incorporated into a confidentiality agreement
between the project entity and the local governmental, agency, department, or other
entity to which the request for disclosure is directed, prohibiting the disclosure of the
identity of the project entity and the information in question. While the first sentence in
Section 41-29-3(b) appears to impose confidentiality generally on information provided
 DOCUMENT 56

the local government, agency, department, or other entity, yet insofar as any ambiguity
exists, the strict construction prescribed by the Chambers decision would indicate from
the context of subsection (b) that no protection from the disclosure obligation exists as
to information not incorporated into a confidentiality agreement containing such a
prohibition.

2. Even the confidentiality agreement exception to disclosure does not exist with
regard to: (a). Chapter 25A of Title 36 [Alabama’s Open Meetings Act]; (b). any
constitutional or statutory disclosure requirements for obtaining the economic
development incentives listed in subdivision (2) of subsection (a); (c). statutory
provisions requiring notice to the entities for which a governmental body or board
intends to abate taxes; and (d). statutory provisions requiring public disclosure of
information for applications for governmental approvals such as permits.

8. Applicability of Open Records Act to IDA. IDA makes an argument, not included
among those asserted by (and obviously not applicable to) the other Defendants, that the
IDA is not subject to the Open Records Act because the IDA is not a government entity,
and its records are not “public writings.” The Supreme Court of Alabama previously has
defined the term public writing as “ . . . such record as is reasonably necessary to record
the business and activities required to be done or carried on by a public officer so that the
status and condition of such business and activities can be known by our citizens.” Stone
v. Consolidated Publishing Company, 404 So.2d 678 (Ala. 1981).

A 1989 act of the Alabama Legislature provided for the formation of industrial
development authorities in this state as public corporations, authorized by the governing
body of each county within the operational area of the authority. See Section 11-92A-1,
et seq., Alabama Code (1975), as amended. In a 2019 decision of the Supreme Court of
Alabama, an issue was presented as to whether the Health Care Authority for Baptist
Health, an affiliate of UAB Health Systems, was subject to the Open Records Act. The
trial court had held that a health care authority is designated as an instrumentality of its
authorizing subdivision, and thus subject to the Act. Health Care Authority for Baptist
Health v. Central Alabama Radiation Oncology, LLC, 292 So.3d 623, 628-629 (Ala.
2019). The Supreme Court affirmed the decision, finding that the Authority’s authorizing
subdivision was the University of Alabama Board of Trustees, which is unquestionably a
state educational institution. Id. at 631.

Clearly, had the IDA been formed pursuant to the 1989 Act or otherwise authorized by a
governmental subdivision, there is no question that it would be subject to the Open
Records provisions, acting as an agency or instrumentality of the county that authorized
it. The Gadsden-Etowah Industrial Development Authority, however, was formed in
1984, prior to adoption of the Act providing for formation of industrial development
authorities as public corporations. The Court finds that a questions nonetheless exists as
to whether the IDA may nonetheless be held subject to the Open Records Act by reason
of the fact that despite the legal circumstances of its formation, its sole reason for
existence is to serve a function (industrial recruitment and development) which otherwise
would be performed by a governmental entity, or in the case of an industrial authority
formed under the 1989 Act, by a public corporation.
 DOCUMENT 56

Plaintiffs argue that the City of Gadsden partners with the IDA and has delegated its
public governmental functions industrial development to the IDA, making it a public
entity. They argue that a review of a public filing for IDA for the year 2018 reveals total
revenue of $372,000.00, which is the exact amount that the 2018 City budget shows was
allocated to the IDA. They contend that IDA operates on property owned by the City,
located across from City Hall. The Plaintiffs request that they be allowed to engage in
discovery with respect to whether the IDA is de facto an arm of the City. Once such
discovery is concluded, a final determination can be made as to whether or not the IDA
should be deemed an instrumentality of the City so as to make it subject to the Open
Records Act. Otherwise, the Plaintiffs would be limited to obtaining IDA records through
subpoenas for production or inspection issued pursuant to Rule 45 of the Alabama Rules
of Civil Procedure.

9. Legal Standard for Granting Motions to Dismiss. The Supreme Court of Alabama
has articulated the following heavy standard to be met before this Court may properly dismiss a
claim for failure to state a claim under Rule 12(b)(6), Alabama Rules of Civil Procedure: “ . . .
[u]nless it appears beyond a reasonable doubt [emphasis added] that the plaintiff can prove no
[emphasis added] set of facts in support of his claim that would entitle him to relief under some
cognizable theory of law, the court should not grant a motion to dismiss a complaint.” Rice v.
United Ins. Co., 465 So.2d 1100, 1101 (Ala. 1984). This Court, when reviewing a motion to
dismiss for failure to state a claim, must resolve all doubts in favor of the plaintiff. See
Whitehead v. Hester, 512 So.2d 1297, 1299 (Ala. 1987). The Court need not determine at this
stage of the litigation whether the plaintiff will ultimately prevail, only whether he has stated a
claim on which he may possibly [emphasis added] prevail. Fontenot v. Bramlett, 470 So.2d 669
(Ala. 1985).

10. Protection Order. The City also has filed a Motion for Protective Order. If the City
asserts any requested documents to be confidential under the narrow field of operation of Section
41-29-3, as set out above, it shall create and file with the Court within ten (10) days after the
date of entry of this Order, a disclosure production log, identifying by date or otherwise, each
document as to which the statutory confidentiality is being asserted. All documents identified on
the log shall be provided to the Court in camera within the same time frame for a review by the
Court to determine whether such documents do or do not fall within the statutory confidentiality
provision set out above. Any which do shall not be disclosed, and any which do not shall be
ordered by the Court to be disclosed to the Plaintiff, through its counsel of record. Any
documents provided by the City to Plaintiff’s counsel, which are determined by the latter to have
been mistakenly or inadvertently provided (due to their falling within the statutory
confidentiality provision set out above) shall be returned, together with any and all copies
thereof, to the City.

11. Conclusion. The ultimate outcome of this case remains to be seen; however, in light of
all the foregoing, it certainly cannot be said at this early stage of the litigation that it appears
beyond a reasonable doubt that the Plaintiffs can prove no set of facts in support of their claim
that would entitle them to relief under some cognizable theory of law. Accordingly, the Court
finds that the Motions to Dismiss filed by the City, the GWWSB, and the IDA are due to be,
 DOCUMENT 56

they hereby are denied. The Defendants shall file Answers to the Plaintiff’s Complaint within
ten (10) days after the date of entry of this Order.

DONE this 6th day of May, 2021.

/s/ GEORGE C. DAY, JR.

CIRCUIT JUDGE