Fans of the Culpable Podcast will find today’s Mississippi Supreme Court opinion interesting. The podcast, according to the website, investigates the “February 26, 2014 death of Christian Andreacchio who was found dead in the upstairs bathroom of his apartment from a single gunshot wound to the head. After a mere 45-minute investigation, local police ruled his death a suicide, despite substantial evidence that points to homicide. Host Dennis Cooper investigates and shares the compelling story about Christian’s suspicious death, the questions surrounding it, and a grieving family’s ongoing fight for justice.”
Today, the Mississippi Supreme Court, interpreting the First Amendment, denied Todd and Rae Andreacchio suit again Joel Wagner for intentional infliction of emotional distress, gross negligence, invasion of privacy, and civil conspiracy in what they claimed was the wrongful publishing of on the internet portions of the investigative file of their son’s death.
The majority opinion holds that “[b]ecause the Andreacchios’ complaint against Wagner hinges on public information he obtained legally, [the lawsuit] fails as a matter of law.”
Here’s the full opinion:
N THE SUPREME COURT OF MISSISSIPPI
NO. 2021-IA-01199-SCT
JOEL WAGNER a/k/a FRANKIE WAGNER
v.
TODD ANDREACCHIO AND RAE ANDREACCHIO
EN BANC.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. Todd and Rae Andreacchio sued Joel Wagner for intentional infliction of emotional
distress, gross negligence, invasion of privacy, and civil conspiracy. The Andreacchios seek
to hold Wagner liable for publishing on the internet portions of the investigative file of their
son’s death. But the United States Supreme Court has held that the First Amendment
protects the publication of legally obtained public records.1
And the investigative file clearly was a public record that was furnished to Wagner by the Mississippi Attorney General’s Office. Thus, Wagner’s publication of portions of the file is constitutionally protected.
¶2. Because the Andreacchios based all their claims on Wagner’s publication of legally
obtained public information, their complaint against him fails as a matter of law. We
therefore reverse the trial court’s ruling denying Wagner’s motion to dismiss. And we render
judgment in Wagner’s favor, dismissing all claims against him.
Background Facts & Procedural History
¶3. The Andreacchios’ son Christian died in 2014. The Meridian Police Department ruled
his death a suicide. But the Andreacchios themselves disagreed. They have maintained the
circumstances surrounding Christian’s death point to homicide. Eventually, the Mississippi
Bureau of Investigations stepped in to investigate. And in 2018, the Mississippi Attorney
General’s Office presented the matter to a grand jury, which did not find probable cause to
return an indictment relating to Christian’s death.
¶4. In 2016, the Andreacchios had begun requesting the investigative file. But because
the investigation was ongoing, they were told the file could not be released. After the grand
jury presentation, the Andreacchios asked Special Assistant Attorney General Marvin
Sanders for a copy of the investigative file. According to their complaint, Sanders initially
rebuffed their request, citing the policy about not releasing records of ongoing investigations.
1 The Florida Star v. B.J.F., 491 U.S. 524, 541, 109 S. Ct. 2603, 105 L. Ed. 2d 443
(1989).
2
Frustrated, the Andreacchios filed a request through the procedures outlined in the
Mississippi Public Records Act.
¶5. Sanders called Rae Andreacchio on July 8, 2019, and stated that he had changed his
mind—the file was going to be released because the investigation was over. On July 17,
2019, Sanders mailed the Andreacchios a jump drive containing the investigative file, with
portions redacted. That same day, Sanders also mailed jump drives to three others who had
made similar public records requests.
¶6. Wagner, a Meridian resident and uncle of Christian’s girlfriend at the time of his
death, had also asked Sanders for a copy of the file. According to the complaint, Sanders
emailed Wagner portions of the investigative file on July 3, 2019. And Wagner began
posting this information, including Christian’s autopsy photos, on his website called Truth
in Justice.
¶7. The Andreacchios take issue with the fact Sanders sent Wagner the investigative file
before Sanders announced to Rae that his office would be releasing the file. Because of this,
they assert Wagner was able to publish embarrassing and upsetting information about
Christian and his family, which they assert were not matters of legitimate public concern.
¶8. Initially, the Andreacchios sued Wagner for intentional infliction of emotional
distress, gross negligence, and invasion of privacy. But later they amended their complaint
to add Sanders as a defendant and to add a claim of conspiracy to commit intentional
infliction of emotional distress.
3
¶9. Wagner responded with a motion to dismiss. In his motion, Wagner claimed the
investigative file was a public record furnished to him by the Attorney General’s Office.
Therefore, his publication of the information was protected by the First Amendment.
¶10. Sanders responded with a motion for judgment on the pleadings. In his motion,
Sanders asserted res judicata, based on the Mississippi Ethics Commission’s order that
Sanders’s release of the investigative file did not violate the Public Records Act.2
¶11. Following a hearing, the trial court denied both motions.
¶12. Wagner filed a petition with this Court requesting permission to file an interlocutory
appeal, which this Court granted.3
Discussion
¶13. We review the denial of a motion to dismiss de novo. Spiers v. Oak Grove Credit,
LLC, 328 So. 3d 645, 650 (Miss. 2021). “A Rule 12(b)(6) motion to dismiss tests the legal
sufficiency of a claim.” Child.’s Med. Grp., P.A. v. Phillips, 940 So. 2d 931, 933 (Miss.
2006). The allegations in the complaint must be taken as true. Spiers, 328 So. 3d at 650.
And the motion to dismiss “should not be granted unless it appears beyond reasonable doubt
that the plaintiff will be unable to prove any set of facts in support of her claim.” Howard
v. Est. of Harper ex rel. Harper, 947 So. 2d 854, 856 (Miss. 2006).
2
Sanders also asserted that he enjoyed prosecutorial immunity and that the
Andreacchios failed to comply with the notice provisions of the Mississippi Tort Claims Act.
3
Sanders did not petition for interlocutory appeal of the denial of his motion for
judgment on the pleadings. So the sufficiency of the allegations against him is not before
this Court.
4
¶14. Taking the Andreacchios’ allegations against Wagner as true, we find their complaint
against him fails as a matter of law. Wagner’s actions are protected by the First Amendment,
which protects the publication of legally obtained public records. The Florida Star v. B.J.F.,
491 U.S. 524, 541, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989).
I. The investigative file was a public record.
¶15. Each claim hinges on Wagner’s publication of information on his website from the
investigative file of Christian’s death. The investigative file was clearly a public record
when Wagner received it. The allegations in the Andreacchios’ complaint—that Special
Assistant Attorney General Sanders gave Wagner the investigative file—before Sanders
responded to Andreacchios’ public records requests—do not alter this truth.
¶16. The Andreacchios allege that this information was not yet a matter of public record
because Special Assistant Attorney General Sanders had not first announced to the
Andreacchios his office was releasing this information publicly. We disagree. Though
investigative reports are statutorily exempt from the Public Records Act—and need not have
been provided at all by the Attorney General’s Office—they are still by their very nature
public records. Miss. Code. Ann. § 25-61-12(2)(a) (Rev. 2018) (exempting investigative
reports from the provisions of the Mississippi Public Records Act of 1983); Miss. Code.
Ann. § 25-61-3(b) (Rev. 2018) (defining “public records” as “all . . . documentary materials
. . . having been used, being in use, or prepared, possessed or retained for use in the conduct,
transaction or performance of any business, transaction, work, duty or function of any public
body”). In other words, the investigative report of Christian’s death did not become a public
5
record when Sanders finally and fully responded to the multiple public record requests. The
file intrinsically was a public record, just not one the Attorney General’s Office was required
to disclose.
II. Wagner’s receipt of the investigative file was not unlawful.
¶17. Further, Wagner’s receipt of this public record was not unlawful on his part. Wagner
did not hack the Attorney General’s computer system. Nor is he alleged to have paid
someone in the Attorney General’s Office to leak him a copy. Instead, according to the
complaint, Wagner engaged in discussions with Sanders, a public official, for the file. And
Sanders for whatever reason decided to give it to him.
¶18. It is certainly understandable that the Andreacchios are upset that Wagner received
more information more quickly than they did. But that does not mean Wagner acted
unlawfully. In The Florida Star, the United States Supreme Court rejected the same
argument made here—that certain information in a police report was unlawfully obtained
because that information was statutorily protected from public disclosure. The Florida Star,
491 U.S. at 536. As the Supreme Court held, “the fact that state officials are not required
to disclose such reports does not make it unlawful for a newspaper to receive them when
furnished by the government.” Id. (emphasis added). “Nor does the fact that the
[government] apparently failed to fulfill its obligation . . . make the newspaper’s ensuing
receipt of this information unlawful.” Id.
¶19. Here, the complaint alleged Wagner received the investigative file from Sanders, a
special assistant attorney general authorized to furnish the information. While it seems
6
unusual for a prosecutor to disclose investigative reports to Wagner, the complaint, taken as
true, fails to allege any unlawful activity on Wagner’s part. Id.; see also Cox Broad. Corp.
v. Cohn, 420 U.S. 469, 496, 95 S. Ct. 1029, 1047, 43 L. Ed. 2d 328 (1975) (holding that
press cannot be sanctioned for disclosing information that a government institution has
decided to publish).
¶20. Neither does the assertion that Wagner failed to comply with a statutory public
records request allege illegal activity. The Public Records Act ensures citizens the right to
public records. Miss. Code Ann. § 25-61-2. But it does not follow that a request for a
public record that does not fully comply with the Public Records Act is an illegal act. Such
an interpretation would not only violate the express policy of the Public Records Act, which
is to ensure access to public records, and not to limit it, but it would also run afoul of the
First Amendment. Id.; see, e.g., Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646,
33 L. Ed. 2d 626 (1972) (acknowledging that news gathering is protected by the First
Amendment).
Conclusion
¶21. Because the Andreacchios’ complaint against Wagner hinges on public information
he obtained legally, it fails as a matter of law. Cf. Andreacchio v. Hamilton, No. M2021-
01021-COA-R3-CV, 2022 WL 2718659, at *1 (Tenn. Ct. App. July 13, 2022) (holding that
the Andreacchios’ similar claims in Tennessee against Joseph Hamilton, which were based
on his publishing Christian’s autopsy photos, failed as a matter of law because “the
information [Hamilton wa]s alleged to have shared is truthful information, public records,
7
concerning a matter of public significance”). Therefore, we reverse the trial court’s denial
of Wagner’s motion to dismiss and render judgment in Wagner’s favor.
¶22. REVERSED AND RENDERED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION.
GRIFFIS, JUSTICE, DISSENTING:
¶23. The majority concludes that “[b]ecause the Andreacchios’ complaint against Wagner
hinges on public information he obtained legally, it fails as a matter of law.” Maj. Op. ¶ 21.
But whether Wagner lawfully obtained the investigative file is not something we can
determine at this time from the record before us. As a result, I find the trial court’s denial
of the motion for summary judgment was proper and should be affirmed.
¶24. Todd and Rae Andreacchio assert that Joel Wagner did not lawfully obtain the
investigative file from the Attorney General’s Office (AGO). According to the
Andreacchios, “[t]here is no evidence that [Wagner] had paid the requisite fee for this very
private information or that any of the procedural requirements had been met prior to the
release of the jump drive to him.” The Andreacchios argue that because “[t]he matters
disclosed by Wagner were not obtained legally or lawfully,” Wagner is not protected by the
First Amendment.
¶25. “When considering a motion to dismiss for the failure to state a claim upon which
relief can be granted, we are limited to review of the contents of the complaint, and ‘[t]he
allegations in the complaint must be taken as true.’” Spiers v. Oak Grove Credit, LLC, 328
8
So. 3d 645, 651 (Miss. 2021) (alteration in original) (quoting Crum v. City of Corinth, 183
So. 3d 847, 851 (Miss. 2016)). “A motion to dismiss under [Mississippi Rule of Civil
Procedure 12(b)(6)] should not be granted unless, taking the factual allegations of the
complaint as true, ‘it appears beyond any reasonable doubt that the non movant can prove no
set of facts in support of the claim which would entitle them to relief.’” Id. at 652 (quoting
Bowden v. Young, 120 So. 3d 971, 975 (Miss. 2013)).
¶26. In Jeffries v. State, Jeffries, a reporter for the Delta Democrat-Times, published an
article that discussed a juvenile defendant’s criminal record after learning the information
in open court at a sentencing hearing. Jeffries v. State, 724 So. 2d 897, 898 (Miss. 1998).
Jeffries had been specifically ordered by the trial court not to include the information in the
paper because the information involved a juvenile. Id. Jeffries was convicted of criminal
contempt for publishing the article in violation of the trial court’s order. Id.
¶27. On appeal, this Court found that the trial court’s order was an unlawful prior restraint
on speech and was presumptively invalid, stating,
Once [the trial judge] made the matter public, those in attendance, including
the press, had a right to further disseminate the information. Therefore, the
prior restraint was an invalid interference with Jeffries’s first amendment
rights.
. . . [W]hen information has been obtained legally from a public proceeding
or document, the United States Supreme Court and appellate courts around the
country have consistently rejected any restraint on its publication. This is true
even when statutes prohibit dissemination of the same information when not
publicly available.
Id. at 899-900 (emphasis added) (citations omitted).
9
¶28. Here, the record does not include what steps, if any, Wagner took to obtain the
investigative file, nor does it include whether Wagner followed the proper procedures in
order to obtain the file. Assuming the Andreacchios’ allegations are true, as we must do
under a Rule 12(b)(6) review, Spiers, 328 So. 3d at 651 (quoting Crum, 183 So. 3d at 851),
and the information was not legally obtained, then Wagner’s argument fails. Jeffries, 724
So. 2d at 899-900. In other words, if the file was not lawfully obtained by Wagner, then a
question remains as to whether Wagner can be sanctioned for sharing the illegally obtained
file with the public. As a result, this Court finds the trial court properly denied the motion
to dismiss because it is unclear at this time whether Wagner lawfully obtained the
investigative file from the AGO.
¶29. In support, the majority cites Andreacchio v. Hamilton, No. M2021-01021-COA-R3-
CV, 2022 WL 2718659, at *1 (Tenn. Ct. App. July 13, 2022). There, the Tennessee court
found as follows:
As Plaintiffs themselves acknowledged, the investigation into Christian
Andreacchio’s death is a matter of public concern. Indeed, whether the official
investigation into Christian Andreacchio’s death was mishandled, as Plaintiffs
have argued, is a matter of public significance. Plaintiffs have publicly
expressed their views on the matter, as is their right. Defendant has publicly
expressed a contrary view, as is his right. This is the sort of “free
communication of thoughts and opinions” protected by Article 1, Section 19
of the Tennessee Constitution. It was within this context that Defendant is
alleged to have distributed Christian Andreacchio’s autopsy photographs
online. There is no hint in the record that Defendant obtained these
photographs by unlawful means. On the contrary, they were public records
obtained through the Mississippi Attorney General’s Office. Further, there is
no suggestion that the photographs were altered or manipulated in any way.
Defendant thus is alleged to have disseminated truthful information—public
records from a sister state, no less—concerning a matter of public significance.
10
Without more, this activity cannot be deemed “outrageous” in the legal sense.
Rather, it is free expression.
Id. at *7 (footnote omitted) (emphasis added).
¶30. But Hamilton is distinguishable. Here, unlike in Hamilton, the Andreacchios have
asserted in the record that Wagner obtained the information by unlawful means. Id. If the
file was not lawfully obtained by Wagner, then a question remains as to whether Wagner can
be sanctioned for sharing the illegally obtained file with the public. See Jeffries, 724 So. 2d
at 900 (emphasis added) (“[W]hen information has been obtained legally from a public
proceeding or document, the United States Supreme Court and appellate courts around the
country have consistently rejected any restraint on its publication.”).
¶31. “[T]aking the factual allegations of the complaint as true, ‘it [does not] appear[]
beyond any reasonable doubt that [the Andreacchios] can prove no set of facts in support of
the claim which would entitle them to relief.’” Spiers, 328 So. 3d at 652 (internal quotation
mark omitted) (quoting Bowden, 120 So. 3d at 975). Consequently, Wagner’s motion to
dismiss under Rule 12(b)(6) was properly denied. The trial court’s order denying Wagner’s
motion to dismiss should be affirmed.
