dissenting.
I respectfully dissent. Section 536.010(6)(k)1 exempts from rulemaking any agency statement “concerning only inmates.” The undisputed facts of this case show that the execution protocol is carried out by individuals who are not inmates. The execution protocol, therefore, is not an agency statement “concerning only inmates” and is not exempt from rulemaking on that basis.
The primary rule of statutory construction is to ascertain the intent of the legislature by giving the language used its plain and ordinary meaning. United Pharmacal Co. of Missouri, Inc. v. Missouri Bd. of Pharmacy, 208 S.W.3d 907, 909 (Mo. banc 2006). “Where the language is clear and unambiguous, there is no room for construction.” Hyde Park Housing Partnership v. Director of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993).
The principal opinion avoids the plain language of section 536.010(6)(k) by asserting that the statute is ambiguous. There is no ambiguity. The word “concerning” means “relating to.” WebsteR’s 3rd New International Dictionary (1993). The word “only” means “a single solitary fact or instance or occurrence; solely; exclusively.” Id. Consequently, the phrase “concerning only inmates” means an agency statement or protocol relating exclusively to inmates.
The undisputed facts of this case show that the execution protocol does not relate exclusively to inmates. The execution protocol directs the actions of the medical professionals who carry out the execution. Without the participation of medical professionals performing their duties pursuant to the dictates of the execution protocol, there would be no execution. This reality eliminates any basis for concluding that the execution protocol is a matter “concerning only inmates.” To conclude otherwise would read the phrase “concerning only inmates” out of the statute.
In contrast to this straightforward analysis, the principal opinion concludes that “this is not a protocol that is concerned with directing the behavior of medical professionals, whose role is incidental.” The word “incidental” means “non-essential” or “occurring merely by chance or without intention or calculation.” Webster’s 3rd *199NEW INTERNATIONAL DICTIONARY (1993). The actions of medical professionals are not a mere incident to an execution. The very purpose of the execution protocol is to direct medical professionals administering lethal chemicals with the purpose of ending the life of another human being. Medical professionals are strictly necessary to the process. It is, therefore, untenable to conclude that the protocol under which the professionals operate does not concern or relate to them.
The principal opinion also relies on section 546.720.2 as additional evidence of legislative intent to exempt the execution protocol from rulemaking procedures. Section 546.720.2 provides that the execution protocol is an open record insofar as the protocol directly relates to the administration of lethal gas or chemicals. In all other respects, the protocol is a closed record. The majority asserts that both the open record and closed record provisions indicate legislative intent to exempt the execution protocol from rule-making. In other words, the principal opinion asserts that “open and closed” both mean “closed.” It is at least equally plausible, however, to conclude that the open records provision in section 546.720.2 indicates that the legislature wished to emphasize that the lethal injection procedures in the execution protocol are subject to rulemaking. This interpretation would be consistent with the plain language meaning of the “concerning only inmates” rulemaking exemption, which, as previously established, does not apply to the execution protocol.
I would hold that the execution protocol is a rule and is not subject to a statutory exemption. Failure to promulgate a rule as required voids the decision that should have been promulgated as a rule. NME Hospitals, Inc. v. Department of Social Services, 850 S.W.2d 71, 74-75 (Mo. banc 1998)(an agency decision that should have been promulgated as a rule, but was not promulgated according to the rulemaking procedures set out in Missouri Administrative Procedure Act, will be invalidated). The judgment dismissing appellants’ lawsuit should be reversed.
. All statutory references are to RSMo Supp. 2007 unless otherwise noted.