Appellants, the Arkansas Insurstice. Mike Pickens, Insurance Commissioner, appeal the denial of a motion for summary judgment and denial of a motion for a protective order based upon a finding that the correspondence in question was a public record. The trial court ordered that an unredacted copy of the public record be provided to appellee, Darryl Baker, the president of the Arkansas Trial Lawyers Association (“ATLA”). We hold that the appeal must be dismissed because the trial court has not entered a final order, because there is no Rule 54(b) certificate, and because this case does not fit within the exception in Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986).
During the 2003 legislative session, the General Assembly debated tort reform. Appellant Pickens, in his official capacity, took part in the debate through testimony to the General Assembly, as well as through public statements and interaction with the media.
ATLA was opposed to the proposed tort reforms while appellant Pickens supported them. ATLA, through the private e-mail of its members, maintained a listserv. On January 13, 2003, ATLA members discussed appellant Pickens and his actions in furtherance of the tort reform hills before the General Assembly as well as methods to oppose the tort-reform bills and proposals made by appellant Pickens. Appellant Pickens is not a member of ATLA, nor is he included in the ATLA listserv.
An unknown party having access to the ATLA listserv forwarded to appellant Pickens the e-mail discussion pertaining to appellant Pickens’s actions, the ways of opposing appellant Pickens, and the ways of opposing the tort-reform bills. Appellant Pickens printed a hard copy of the e-mail, and at some point during the day, the name of the person who sent the e-mail was redacted from the hard copy in preparation for releasing the hard copy to the press. Appellee Baker, president of ATLA, made a Freedom of Information Act (“FOIA”) request that same day. At some point during the day, the computer copy of the e-mail was deleted.
Appellants released a copy of the redacted correspondence to appellee and claimed to have met the FOIA requirements. Appellee then requested an unredacted copy of the e-mail, which was denied by appellants. They claimed that the unredacted correspondence did not exist as a public record at the time of the FOIA request.
- This lawsuit was filed. Appellee began discovery with interrogatories and a request for the production of documents, including an unredacted version of the e-mail forwarded to appellant Pickens. Appellants submitted a motion for a protective order to the trial court to prevent disclosure of an unredacted version of the e-mail before the conclusion of litigation on whether the e-mail was a public record subject to the FOIA. Appellants also moved for summary judgment, arguing that the e-mail was not a public record because it was not created by or affirmatively sought by appellant Pickens. In denying appellants’ motion for summary judgment, the trial court held that the correspondence was a public record. The trial court denied appellants’ motion for a protective order, and ordered an unredacted copy of the e-mail to be produced in accordance with discovery requests.
Appellants raise three points on appeal. First, appellants argue that the trial court erred in denying the motion for a protective order because the disclosure sought goes to the ultimate issue of the case. Secondly, appellants argue that the trial court erred in determining that the correspondence was a public record. Finally, appellants argue that if the correspondence was a public record, then they complied by releasing the version of the correspondence as it existed at the time of the FOIA request.
Appellee raises ajurisdictional challenge, asserting that this is an improper interlocutory appeal. Appellee notes, “Where no final or otherwise appealable order is entered, [an appellate court] lacks jurisdiction to hear the appeal.” Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003). Appellee further contends that there are issues yet to be determined by the trial court, including whether appellants redacted the information before or after the FOIA request, how, when, and by whom the computer copy was deleted, and whether either the redaction of the hard copy or the deletion of the computer copy constituted an intentional denial of access under FOIA.
Our Ark. R. App. Pro.—Civ. 2 articulates when an order-may be appealed. The rule allows for the appeal of final judgments, the grant or refusal of a new trial, an order striking part of an answer, an interlocutory order pertaining to an injunction, and orders certified by the trial court to be a final judgment under the provisions of Rule 54(b)(1) of the Arkansas Rules of Civil Procedure. Ark. R. App. Pro.—Civ. 2. A final order will dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. U.S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 673 (2003). We have previously held that the denial of a motion for a protective order to quash a subpoena is not a final and appealable order. In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992) (holding that in the event of a subsequent contempt citation, the case would likely be appealed to this court creating piecemeal litigation.). We have recognized an additional exception to the rules and allowed an appeal of an interlocutory order when it determined the ultimate issue of the case. Gipson, supra.
The threshold issue is whether the trial court’s order meets the criteria set out in Ark. R. App. Pro.—Civ. 2(a) or effectively disposes of the litigation as in Gipson, supra. The order in this case has not been certified as a final order pursuant to Ark. R. Civ. Pro. 54(b)(1), does not deal with an injunction, and does not meet other requirements for an interlocutory appeal. Appellants recognize that there is no basis for the review of a denial of a motion for summary judgment. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001); see also Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536, 20 S.W.3d 285 (2000); Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999); Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999); Liberty Mut. Ins. Co. v. Thomas, 333 Ark. 655, 971 S.W.2d 244 (1998).
We now turn our attention to appellants’ argument that the Gipson exception should apply in this case. Under this exception, an interlocutory order may be reviewed by an appellate court when it effectively disposes of the litigation and leaves the appellants in a position without an appropriate remedy by means of appeal. Gipson, supra. In Gipson, the plaintiffs sought to use discovery to require disclosure of the financial records of an incorporated church during litigation seeking to obtain inspection of those financial records. The trial court’s interlocutory order requiring the release of the information through discovery was held to effectively dispose of the litigation. Id. The ultimate goal of the lawsuit in Gipson was to require the church to produce the financial documents. When the trial court ordered the documents to be disclosed pursuant to a discovery request, the ultimate issue of the lawsuit was determined and there was no other avenue for appellate review. Id. We asserted our jurisdiction because of the dispositive nature of the order in accord with the Arkansas Rules of Appellate Procedure—Civil 2(a)(2) and entertained the appeal. Id.
Here, appellants claim that the only issue involved in the lawsuit is appellee’s attempt to discover the name of the individual who forwarded the ATLA listserv correspondence to appellant Pickens. Appellants argue that they will be left in the same untenable position of the church in Gipson. Appellants, however, are mistaken. Appellee correctly argues that there are issues yet to be resolved by the trial court in this case. In particular, the trial court has yet to determine whether there was an intentional impeding of access to the correspondence under the FOIA. Appellee, in his amended complaint, alleged that appellants intentionally violated the FOIA and that the correspondence was redacted after the FOIA request was made. Other issues remain to be decided, and we hold that this case does not fall within the narrow exception that we outlined in Gipson, supra.
In conclusion, we find that the trial court’s order is not a final and appealable order pursuant to the Ark. R. App. Pro.— Civ. 2. We do not review the denial of a motion for summary judgment. We do not review the denial of a protective order. Moreover, this case does not fall within the narrow exception outlined in Gipson, supra.
For these reasons, we hold that this appeal must be dismissed because of the lack of a final, appealable order, and, accordingly, we do not reach the remaining issues.
Appeal dismissed.
Dickey, C.J., and Corbin, J., dissent.