Table of Contents

INTRODUCTION

OVERVIEW OF MISSISSIPPI LAWS

PUBLIC RECORDS

This handbook was compiled by Luther T. Munford, John P. Sneed, and R. Hayes Johnson, Jr., of the law firm Phelps Dunbar, L.L.P., in Jackson, Mississippi, under a grant provided by the Mississippi Freedom of Information Coalition.

Portions of this handbrook were adapted from the "Digest of The Mississippi Open Meetings Law and The Mississippi Public Records Act," March 1, 1996, Copyright, 1996, The Mississippi Press Association. Other portions are Copyright, 1999, Phelps Dunbar, L.L.P.

Introduction

Journalists and other members of the public often talk about their"right to know" about government business without fully understanding what that phrase really means. In reality, the only "rights" regarding public access to government records and meetings (other than trials) are defined by state and federal statutes and case law interpreting those statutes. In other words, the Mississippi Legislature and Congress decide whether government's doors and file drawers will be open to public scrutiny.
 

Fortunately, due in large part to media exposès and public mistrust of government in the past 30 years, state and federal statutes were passed to give the public access to government records and meetings. Generally, these statutes have been interpreted by courts as giving the public the right to find out "what government is up to." The statutes, though rife with exceptions and loopholes, are powerful tools for journalists and others who know how to use them. Conversely, the statutes can be abused by bureaucrats who do not want public scrutiny.
 

Mississippi's statutes are not among the nation's best in terms of opening government to public scrutiny. However, this state's laws are broad enough to give informed journalists a good chance of obtaining access to most newsworthy meetings or records.
 

This handbook was devised as a tool to help Mississippi journalists and others to understand this state's public records and open meetings laws, and to be prepared when government officials fail or refuse to abide by those laws. All Mississippi journalists owe it to their readers, viewers and listeners to read the entire handbook, and then keep a copy handy for those times when FOI questions arise on the beat.

Mississippi Public Records Act. Mississippi as early as 1941 recognized a right to inspect and copy public records such as land title records. It was not until 1983, however, that Mississippi adopted a generally applicable public records statute, now codified as Miss. Code Ann. § 25-61-1 et seq. There is no official legislative history, other than the record of votes and proposed amendments in the legislative journals. In the first decision by the Mississippi Supreme Court construing the Act, the Court relied in part on the title of the bill in the session laws. Quoting from the title, the Court held that the Act covered "records of all public bodies of government," even driver's license name lists formerly sold at a profit by the state. The Mississippi statute is not modeled on the records act of any other state, nor does it track the federal Freedom of Information Act.
 

Since passage of the 1983 Act, the legislature has steadily eroded its coverage by the adoption of exemptions. These include exemptions for medical examiner reports, § 41-61-63, and for case files of the Workers' Compensation Commission, § 71-3-66. In general, the media and the public have failed to monitor the legislative process closely enough to mount any effective opposition to these exemptions. The legislature has scattered exemptions throughout the code. They are not codified with the Act, which has made them less visible.
 

In 1996, Mississippi joined those states which have updated their public records laws for the electronic age. Mississippi's law was expanded significantly to accommodate the growing reliance of public agencies on electronic record keeping. The law gives members of the public the right to request electronic records in electronic formats. The law also forbids public agencies from contracting for information services unless the public also can access information provided by those services. However, the law does add exemptions to the Public Records Act for various forms of proprietary software. See §§ 25-61-1, -2, -10 (Supp. 1996). Also, the legislature in 1999 passed a bill that potentially could drive up costs for computer-based records searches.
 

Mississippi Open Meetings Law. Mississippi first adopted an open meetings law in 1975. As originally enacted, the law permitted closed meetings for any reason so long as certain procedures were followed. In 1981, the legislature strengthened the law by limiting executive sessions to matters falling within one of 11 statutory exemptions. In 1990, the legislature changed the definition of "personnel matter" and added new notice requirements. The exemptions are in some respects similar to exemptions adopted previously in Louisiana. There is no official legislative history of either the 1975, 1981, or 1990 bills. All that is available is the record of votes and proposed amendments in the session laws.
 

The Act contains a strong statement of policy which has guided the courts in interpreting the Act:
 

It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.
 

§ 25-41-1 (Supp. 1991). The Mississippi Supreme Court has said, "However inconvenient openness may be to some, it is the legislatively decreed public policy of this state." Mayor and Aldermen v. Vicksburg Printing & Publishing Co., 434 So. 2d 1333, 1336 (Miss. 1983).
 

The Act sweeps broadly. A meeting is an "assemblage of members of a public body at which official acts may be taken," § 25-41-3(b) (Supp. 1991). "Official acts" includes deliberations, and is not limited to voting. Problem areas are the "personnel" exemption, § 25-41-7(4)(a) (Supp. 1991), and the failure of the Act to provide attorney's fees to successful plaintiffs. Also, violation of the Act is not grounds for setting aside actions taken during a closed meeting. Accordingly, a public body that violates the Act generally faces little or no penalty for breaking the law.

1. What entities are covered?

Every "public body," which includes any department, bureau, division or agency of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the Constitution or by law, executive order, ordinance or resolution. Records of appointed and elected official are covered. That State Legislature is not.
 

2. What documents are covered?

Any documentary materials, regardless of physical form or characteristics, used in conducting business of any public body or required to be maintained by any public body.
 

3. What records are exempt from the Act?

a. records developed by judges or their aides;

b. records developed by juries;

c. personnel records and employment applications;

d. employment examination questions and answers;

e. letters of recommendation for employment by public body;

f. work product of any attorney representing a public body, related to actual or prospective litigation;

g. individual tax records;

h. appraisal information concerning the sale or purchase of real or personal property for public purposes;

i. future academic examination questions and answers;

j. archaeological data maintained by the Mississippi Department of Archives and History;

k. records maintained by public hospitals except the official minutes of the board of trustees and financial reports filed as required by statute;

l. records of the State Bureau of Vital Statistics of the Mississippi Department of Health, which are of no legitimate and tangible interest to the requester;

m. records of the Department of Economic Development containing client information about development projects;

n. records of public bodies primarily engaged in the enforcement of criminal laws. (NOT EXEMPT: Records consisting only of identifying data and notations of arrest, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status.);

o. licensure applications;

p. recommendations in the possession of any state board which is authorized to hold examinations and grant licenses or certificates to practice any profession, respecting application of a professional license;

q. future licensing test questions;

r. commercial and financial information of a proprietary nature required to be submitted to a public body, except for information submitted to a regulatory agency by a public utility that is related to the establishment of or changes in rates regulated by the public body;

s. noncontroverted case medical reports of the Mississippi Workers' Compensation Commission;

t. certain records compiled in coroners' investigations;

u. names of people who have gotten, or been denied, concealed weapons permits, for 45 days after issuance or denial of such permits; and

v. any records specifically declared by another statute to be confidential or privileged (e.g. 911, gaming data).

Exemptions are permissive. The exemptions are not mandatory, and release is discretionary with public official.
 

4. Procedure, time, costs and enforcement.

Requester should submit a written request for public records, specifically outlining the records that are being requested, and the desired format (e.g., paper or computer disk). If the agency has no written guidelines on complying with the law, the request must be honored in one working day. If the agency does have guidelines, the agency can take up to 14 working days to respond to a request.

If the agency denies all or part of the request, it must explain the denial in writing. Exempt portions of records must be redacted, with non-exempt portions released.

A public body may charge reasonable costs for the actual cost of searching, reviewing, duplicating and, if needed, mailing the records. In no case can the cost be more than "actual cost." The decision to charge for public records is discretionary.

If a public body refuses to release records, the requester first should make informal attempts to resolve differences. If those attempts fail, suit may be filed in the chancery court of the county where the public body is located. The court can provide injunctive relief or writs of mandamus, as well as impose a civil fine not to exceed $100. A prevailing party can be reimbursed for reasonable costs of bringing suit.

I. STATUTE - BASIC APPLICATION.
 

A. Who can request records?

1. Status of requestor. "Any person" may request records under the Act. § 25-61-5; Op. Att'y Gen. Aug. 1, 1984 to Earline Dugan.

2. Purpose of request. The requester's purpose does not affect the requester's right to receive records, except with respect to certain exemptions. See e.g. § 41-57-2 (Rev. 1993) (Department of Health, Bureau of Vital Statistics records limited to those with a "legitimate and tangible interest").

3. Use of records. The Act does not restrict the requester's use of the information provided.
 

B. Whose records are and are not subject to the act?

1. Executive branch.

a. Records of a "public body" are covered. This does not include appointed or elected public officials or their employees. See Op. Att'y Gen. May 15, 1984 to Benjamin E. Griffith construing § 25-61-3(a) (Supp. 1996).

b. The function of the executive officer is not relevant, except insofar as it is covered by a particular exemption, such as attorney work product, § 25-1-102 (Rev. 1991), or personnel, § 25-1-100 (Supp. 1996).

2. Legislative bodies. Legislative records are covered by the Act, but an ambiguous section retains for the legislature "the right to determine the rules of its own proceedings and to regulate public access to its records." § 25-61-17.

3. Courts. Courts are covered, but statutes exempt records developed among judges and among judges and their aides, § 9-1-38 (Rev. 1991), and among juries concerning judicial decisions, § 13-5-97 (Supp. 1996).

4. Nongovernmental bodies receiving public funds or benefits. These are not covered. Coverage is restricted to an "entity created by the Constitution, or by law, executive order, ordinance or resolution." § 25-61-3(a) (Supp. 1996).

5. Nongovernmental groups whose members include governmental officials. These are not covered, see § 25-61-3(a) (Supp. 1996). Records officials use in the performance of business for a public body are, however, covered. § 25-61-3(b) (Supp. 1996).

6. Multistate or regional bodies. These would be covered if "created by the Constitution or by law, executive order, ordinance or resolution." § 25-61-3(a) (Supp. 1996).

7. Advisory boards and commissions, quasi-governmental entities. These are covered if "created by the Constitution or by law, executive order, ordinance or resolution." § 25-61-3(a) (Supp. 1996).

8. Others. None.
 

C. What records are and are not subject to the Act?

1. Records are covered if they are used, or have been used or are "prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body" or are "required to be maintained by any public body." § 25-61-3(b) (Supp. 1996).

2. Records are covered "regardless of physical form or characteristics." § 25-61-3(b) (Supp. 1996). Computerized voter registration lists and applications for registration are "records." Op. Att'y Gen. Jan. 16, 1990 to Dick Molpus. The 1996 legislation, codified as § 25-61-10(a) (Supp. 1996), gives requesters the right to choose the format in which they want the records, and so overrules. Op. Att'y Gen. April 17, 1991 to W.L. Lee. The requester's rights are qualified only by the agency's right to charge a reasonable fee.

3. The requester has a right not only to "inspect," but also to "copy or mechanically reproduce or obtain a reproduction of any public record of a public body." § 25-61-5(1).
 

D. Fee Provisions or Practices.

1. Levels or limitations on fees. Fees must be "reasonably calculated to reimburse [the public body] for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing." § 25-61-7. An agency may not charge more than "actual cost," Roberts v. Miss. Rep. Party State Exec. Comm., 465 So. 2d 1050, 1054 (Miss. 1985). This was held to apply even when a city conducted expensive aerial photography and mapping of local areas. See Op. Att'y. Gen. Oct. 5, 1994 to Gerald C. Gex.

2. Particular fee specifications or provisions.

a. Search. There are no particular fee specifications in the statute. Each agency may, however have "reasonable written procedures" concerning its charges. § 25-61-5(1).

b. Duplication. There are no particular fee specifications in the statute. Each agency may, however have "reasonable written procedures" concerning its charges. § 25-61-5(1).

3. Provisions for fee waivers. There is no statutory provision for fee waivers. The statute says the public body "may" collect fees, implying discretion. § 25-61-7.

4. Requirements or prohibitions regarding advance payment. The statute says fees "shall be collected by the public body in advance of complying with the request." § 25-61-7.

5. Have agencies imposed prohibitive fees to discourage requesters? Most agency regulations have adopted reasonable fee provisions. The Office of the State Auditor charges $.10 per page for copying and $5 an hour after the first hour for records searches. By contrast, the State Department of Education charges $.25 per page and, if the search takes more than 15 minutes, an hourly search fee.
 

II. EXEMPTIONS AND OTHER LEGAL LIMITATIONS.

A. Exemptions in the Public Records Act.

1. Character of exemptions.

a. The exemptions are specific, except for a catchall exemption for records specifically declared to be confidential or privileged by any constitutional or statutory law or a decision of a state or federal court of the state. § 25-61-11. Records declared "confidential" by a public body are not made confidential by the declaration but must be statutorily exempted from disclosure. Op. Att'y. Gen. August 18, 1998 to Honorable Ken Stribling.

b. Most exemptions are discretionary. They do not require that the records be kept confidential. They are not grounds for resisting a court subpoena. United States v. Dale, 155 F.R.D. 149, 152 (S.D. Miss. 1994). Statutory exclusions listed in II.B., infra, however, require confidentiality.

c. The exemptions are not directly patterned on the federal exemptions.

d. There is no exemption for records concerning pre-decisional and deliberative matters. Op. Att'y Gen. Oct. 16, 1989 to William Bruce McKinley.

2. Discussion of each exemption.

a. Documents subpoenaed by the Attorney General under his authority to investigate white collar and official crime. § 7-5-59(6) (Rev. 1991).

b. Records developed among judges and their aides. § 9-1-38 (Rev. 1991).

c. Records developed among juries concerning judicial decisions. § 13-5-97 (Supp. 1996).

d. Personnel records and applications for employment except those which may be released to the applicant or with the prior written consent of the applicant. § 25-1-100(1) (Supp. 1996). This does not exempt the names of persons employed and the compensation paid to such person. Op. Att'y Gen. June 5, 1984 to Bennie G. Thompson. Nor does the exemption for personnel records apply to public employees' accrued compensation time information. Information regarding gross salary and accrued leave are subject to disclosure. Mississippi Department of Wildlife, Fisheries and Parks v. Mississippi Wildlife Enforcement Officers' Ass'n, Inc., 1999 WL 47779, *10 (Miss. 1999). A form listing teachers by name, social security number, race, sex, areas of endorsement, grade ranges, and salary is not exempt, but teachers' home telephone numbers would be. Op. Att'y Gen. July 2, 1984 to N.F. Smith. A mailing list for employees is not exempt. Op. Att'y Gen. June 10, 1987 to Hon. William Hale Singletary. Documents relating to contract employee authorizations under § 25-9-120 (Supp. 1996) are not exempt. § 25-1-100(4) (Supp. 1996). Evaluations of public school administrators are not exempt. § 37-3-2(23) (Rev. 1996).

e. Test questions and answers. § 25-1-100(2) (Rev. 1996).

f. Letters of recommendation. § 25-1-100(3) (Rev. 1996).

g. Records which represent or constitute the work product of any attorney, district attorney or county prosecuting attorney representing a public body and which are related to litigation made by or against such public body, or in anticipation of prospective litigation. § 25-1-102 (Rev. 1991). This includes itemized statements relating to attorneys' fees, but not the total dollar amount of attorneys' fees and expenses paid. Op. Att'y Gen. Jan. 14, 1985 to Orma R. Smith Jr., citing Journal Publishing Co. v. Board of Trustees, No. 125,759 (Hinds County Chancery Court, Nov. 2, 1984).

h. Records of executive sessions of public bodies are exempt by implication of the Open Meetings Act, Miss. Code Ann. §25-41-7, according to the Attorney General. Op. Att'y Gen. April 2, 1990 to W. Rayford Jones.

i. Trade secrets and proprietary information developed by a college under contract with a business are exempt. § 25-61-9(3). While the trade secret exemption covers reports by third parties, it does not serve to protect information provided to public bodies by third parties hired to compile such information. Op. Att'y. Gen. April 17, 1998 to John H. Dunbar. The Mississippi Uniform Trade Secrets Act was not intended to narrow the focus of the Public Records Act: Confidential information does not have to rise to the level of trade secret to be exempt. Caldwell & Gregory, Inc. v. University of Southern Mississippi, 716 So.2d 1120, 1122 (Miss. App. 1998).

j. Waste minimization plans developed under the Mississippi Comprehensive Multimedia Waste Minimization Act of 1990 are exempt. § 25-61-9(5).

k. Data processing software that is subject to license restrictions, or is a trade secret, or is "sensitive" is exempt. § 25-61-9(6).

l. Records which disclose information about a person's individual tax payment or status. § 27-3-77 (Rev. 1991). A public employee's salary deductions for taxes are exempt. Op. Att'y Gen. Aug. 8, 1985 to Hon. G.D. Williamson.

m. Appraisal information which concerns the sale or purchase of real property for public purposes prior to public announcement of the purchase or sale, where the release of such records would have a detrimental effect on such sale or purchase. § 31-1-27 (Rev. 1990).

n. Test questions and answers to be used in future academic examinations, and letters of recommendation respecting admission to any educational agency or institution. § 37-11-51 (Rev. 1996). This does not exempt records of student performance at the Mississippi Law Enforcement Officers' Training Academy. Op. Att'y Gen. July 28, 1983 to Kent McDaniel.

o. Records which contain information about the location of any specific archaeological site, where in the opinion of the agency disclosure would create a substantial risk of damage or destruction to the historical value of the site or to private property rights. § 39-7-41 (Rev. 1996).

p. Records maintained by public hospitals, except the official minutes of the board of trustees and certain financial reports. § 41-9-68 (Rev. 1993).

q. Records in the possession of the Mississippi Department of Health, bureau of vital statistics, which would be of no legitimate and tangible interest to the person making a request for access to such records. § 41-57-2 (Rev. 1993).

r. Reports of the state medical examiner are "maintained as confidential so as to protect the doctor/patient privilege." § 41-61-63(a)(a) (Supp. 1996). In 1991, the Legislature repealed the exemption for autopsy reports, § 41-61-75, repealed 1991 Miss. Laws, ch. 573 § 141. While the Legislature rewrote § 41-61-65 (Rev. 1993) to limit the persons to whom such reports "shall be furnished," nothing in the present statute exempts these reports from the Records Act. But see Op. Att'y Gen. Aug. 27, 1986 to Mr. Steven J. Delahousey; Op. Att'y Gen. April 15, 1987 to Harold J. Stiglet (construing prior law).

s. The State's Concealed Weapon's Law exempts for a period of 45 days from the date of issuance of licenses or final denials of applications the names of people who have gotten or applied for concealed weapon's permits in the State of Mississippi. § 45-9-101(8) (Rev. 1993).

t. Records compiled in the process of detecting and investigating alleged unlawful activity if disclosure would harm the investigation, reveal informants, disclose investigatory techniques, deprive a person of a fair trial, endanger the safety of a public official, or reveal matters pertaining to quality control or PEER review activities. § 45-29-1(1) (Rev. 1993). Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1167 (Miss. 1987). The interests protected by this statute may be outweighed by a First Amendment interest in airing a videotape used as evidence at a hearing, TV-3, Inc. v. Jackson, 19 Med. L. Rptr. 1312 (Aug. 28, 1991).

u. Records compiled by a criminal law enforcement agency which consist of information compiled for the purpose of a criminal investigation and associated with an identifiable individual. § 45-29-3 (Supp. 1991). The 1990 amendment to this exemption, 1990 Miss. Laws, ch. 413 § 1, struck out language which had been construed to exempt arrest reports from disclosure. The amendment also appears to have overruled an Attorney General's opinion that the prior statute exempted all inmate records held by the Mississippi Department of Corrections. See Op. Att'y Gen. Jan. 18, 1985 to Morris L. Thigpen; Op. Att'y Gen. Feb. 22, 1995 to Stewart Murphy. A State Auditor's notice to the governor concerning possible embezzlement by a public official may be exempt. Op. Att'y Gen. May 13, 1988 to Pete Johnson.

v. Voluntary internal environmental self-evaluation reports of industries regulated by the Department of Environmental Quality are exempt from the Public Records Act. § 49-2-51.

w. Noncontroverted case medical reports, rehabilitation counselor reports and psychological reports of the Workers Compensation Commission "insofar as they refer to accidents, injuries and settlements." § 71-3-66 (Rev. 1995). The Attorney General's office has said this exempts the names of all persons filing claims of work-related injuries. Op. Att'y Gen. June 3, 1987 to Marshall Bennett. These records are open, however, to "the parties satisfying the commission of their interest in such records and the right to inspect them." § 71-3-66 (Rev. 1995).

x. Test questions to be used in future license examinations, and license applications, except when the application is requested by the applicant or is released with the applicant's prior written consent. § 73-52-1 (Rev. 1995).

y. Information "in connection with any investigation or examination" under the Mississippi Securities Act is exempt. § 75-71-111(c).

z. Commercial and financial information of a proprietary nature required to be submitted to a public body is exempt, unless it is submitted to a regulatory agency by a public utility and is related to the establishment of, or changes in, rates regulated by the agency. § 79-23-1(1) (Supp. 1987). In fact, if the agency seeks to disclose voluntarily trade secret or confidential commercial or financial information, whether it comes from a utility or not, the agency must give notice to the submitter. The submitter may then within a reasonable time obtain a court order "protecting such records as confidential." § 25-61-9(1) (Supp. 1996). South Central Bell Telephone Co. v. Mississippi Public Service Corp., No. 123,666 (Hinds Co. Chancery Ct., June 12, 1984) (utility costs, market analysis, market projections protected); Op. Att'y Gen. Oct. 16, 1989 to William Bruce McKinley (Public Service Commission records). This would apply to medicaid cost reports for nursing homes. Op. Att'y Gen. March 4, 1987 to Col. B.F. Simmons. Cf.Mississippi Health Care Ass'n v. State of Mississippi, No. 134,127 (Hinds Co. Chancery Ct., April 12, 1988). It would also apply to a computer database of investors and investment information compiled by the Research and Development Center. Op. Att'y Gen. Nov. 21, 1986 to E.E. Thrash. A list of public water district customers is not confidential, but their customers' bank account numbers are confidential. Op. Att'y Gen. July 18, 1994 to Sen. Ken Harper.

aa. Records maintained by domestic violence shelters, except official minutes and certain financial reports. § 93-21-109 (Rev. 1994).
 

B. Other statutory exclusions.

1. All Mississippi Ethics Commission proceedings and records relating to any investigation shall be kept confidential, but this requirement is not to interfere with the Commission's "authority." § 25-4-23 (Supp. 1996). See Ethics Com'n v. Committee on Prof. Resp., 672 So. 2d 1222 (Miss. 1996).

2. The Public Employees' Retirement Systems' individual member records are not to be disclosed without the individual's prior written consent. § 25-11-119(3) (Supp. 1996).

3. Permanent records and cumulative folders of public school students shall not be available to the general public. § 37-15-3 (Rev. 1996).

4. Library records relating to the identity of a user relative to the user's use of books are confidential. § 39-3-365 (Rev. 1996).

5. Mississippi Bureau of Narcotics to make and maintain a private, nonpublic record of certain convictions. § 41-29-139(c)(2)(A) (Supp. 1996).

6. Records involving children, which include all youth court records, social records, law enforcement records and agency records under the Youth Court Law, may not be disclosed except by order of the Youth Court. §§ 43-21-105(t), -251 (Supp. 1996).

7. Information obtained in the discharge of official duty by a field officer as an employee of the Department of Corrections shall be privileged and shall not be disclosed. § 47-7-21 (Rev. 1993).

8. Trade secrets and "confidential information concerning business activities" acquired by the Commission on Environmental Quality must be kept confidential and it is a misdemeanor for any public employee to divulge such information. § 51-3-44 (Supp. 1996).

9. Highway patrol accident reports are for the confidential use of the department, but may be disclosed to persons involved in the accident. § 63-3-417 (Rev. 1996).

10. All pleadings, reports, files and records pertaining to adoption proceedings shall be confidential and shall be withheld from inspection except on court order. § 93-17-25 (Rev. 1994).

11. Informant's identities are exempt from disclosure under the Public Records Act. Singing River Electric Power Ass'n v. State of Mississippi, 693 So.2d 368, 372 (Miss. 1997) (citing Miss. Code Ann. § 45-29-1(1)(ii)). However, informant's identities may be disclosed to local law enforcement pursuant to § 45-29-1(2), which provides for the free flow of information between public bodies for the purpose of coordinating investigation of unlawful activity. Id. at 374.

12. Public bodies which maintain or are are required to maintain criminal history records must make those records accessible to the public under the Public Records Act. Op. Att'y. Gen. January 30, 1998 to Honorable Forrest Allgood.

13. Complaints to the Mississippi Commission on Judicial Performance which are dismissed (but not referred to or filed with the Mississippi Supreme Court) are confidential and exempt from disclosure under the Public Records Act per § 177A of the Mississippi Constitution. Op. Att'y. Gen. March 26, 1999 to Luther T. Brantley, III.

14. Political parties, because they are not public bodies as defined by § 25-61-3, are not subject to the Public Records Act and are not required to release names of candidates qualified to run for public office. Op. Att'y. Gen. March 21, 1999 to Mr. Walter E. Gardner.

15. Records of public bodies not ordinarily subject to disclosure under the Public Records Act may become public (and therefore open to disclosure) if in the possession of a public body and retained for use by that body. § 25-6-3(b) Op. Att'y. Gen. May 4, 1997 to Dr. Thomas D. Layzell.

16. Once a justice court judgment is entered on the docket, it becomes a public record and subject to disclosure under the Public Records Act. Such judgments need not be entered on the Judgment Rolls to be public and therefore accessible. Op. Att'y. Gen. April 18, 1997 to Earline Wright Hart.

17. Social Security numbers, addresses and other personal information contained in driver's license records, although open to disclosure prior to implementation of the federal Driver's Privacy Protection Act of 1994 ("DPPA"), were made confidential and exempt from disclosure under the Public Records Act by the federal law. Op. Att'y. Gen. August 27, 1997 to Commissioner Jim Ingram. Note that challenges to the constitutionality of this federal statute by the states have led to permanent injunctions by the 4th, 10th and 11th Circuit Courts of Appeal prohibiting enforcement of the DPPA. These courts have held the federal law unconstitutional as a violation of the 10th Amendment and an intrusion upon powers reserved to the states.
 

C. Court-derived exclusions, common law prohibitions or recognized government privileges against disclosure. The statute recognizing a privilege not to disclose confidential medical communications, § 13-1-21, has been said to require that certain city emergency medical services records be kept confidential. Op. Att'y Gen. Oct. 6, 1993 to Robert W. Lawrence. A statute authorizing blood tests of dead or unconscious accident victims, § 63-11-7 (Rev. 1996), has been said to exempt by implication those tests from disclosure. Op. Att'y Gen. Dec. 29, 1993 to Jim Younger.
 

D. Are segregable portions of records containing exempt material are available to the public? Yes. § 25-61-9(2) (Supp. 1996). A police department can delete the numbers of informants from its telephone bills before disclosing them. Op. Att'y Gen. March 18, 1992 to Freida Gunn Collins.
 

III. STATE LAW ON ELECTRONIC RECORDS.

A. Can the requester choose a format for receiving records? Miss. Code Ann. § 25-61-10(2) (Supp. 1996) provides: "A public body shall provide a copy of the record in the format requested if the public body maintains the record in that format."
 

B. Can the requester obtain a customized search of computer databases to fit particular needs? Records must be available for "inspection" and public bodies must "ensure reasonable access to records electronically maintained." § 25-61-2 (Supp. 1996).

C. Does the existence of information in electronic format affect its openness? No. § 25-61-2 (Supp. 1996). This statute may not overrule Op. Att'y Gen. Aug. 14, 1995 to Rickey Gray, which says the electronic version of Mississippi Code does not have to be released because it is copyrighted. § 1-1-9 (Supp. 1996).
 

D. How is e-mail treated? Not expressly. See Miss. Code Ann. § 25-61-3(b) (Supp. 1996) (defining "public records").
 

E. Is software public? Not if obtained pursuant to a licensing agreement that prohibits disclosure and not if the software is "sensitive." §§ 25-61-3(c), (d) (Supp. 1996); 25-61-9(6) (Supp. 1996). See Op. Att'y Gen. Dec. 7, 1995 to W. R. Lewis.
 

F. How are fees for electronic records assessed? Not specified.
 

G. Money-making schemes.

1. Revenues. The state must make records available at the state's actual cost. Roberts v. Miss. Rep. Party State Exec. Com., 465 So. 2d 1050, 1054 (Miss. 1985).

2. Geographic Information Systems. Not addressed in the statute.
 

H. On-line dissemination. The following Mississippi resources are available on line as of November, 1999:

1. Supreme Court and Court of Appeals Opinions.

http://www.mssc.state.ms.us

2. Links to all state agencies, agency regulations and general legal information.

http://www.mslawyer.com/

3. Mississippi Attorney General's Opinions (searchable).

http://www.ago.state.ms.us

4. Mississippi Code Annotated

http://www.mscode.com
 
 
 

IV. RECORD CATEGORIES - OPEN OR CLOSED.

A. Autopsy Reports. May be open. See § 41-61-63(a) (Supp. 1996); II.A.2.r., supra.
 

B. Bank records. Closed if commercial and financial information of a proprietary nature required to be submitted to a public body. See § 79-23-1(1) (Rev. 1996); II.A.2.z., supra.
 

C. Business records, financial data, trade secrets. Closed if commercial and financial information of a proprietary nature required to be submitted to a public body, and not from a utility concerning rates. See § 79-23-1(1) (Rev. 1996); II.A.2.z., supra.
 

D. Contracts, proposals and bids. Open unless considered appraisal information. See § 31-1-27 (Rev. 1990); II.A.2.m., supra.
 

E. Collective bargaining records. Open.
 

F. Coroners reports. Closed. See § 41-61-63(a) (Supp. 1996); II.A.2.r., supra.
 

G. Election records. Open. Op. Att'y Gen. Nov. 2, 1994 to Sen. Michael Gunn.
 

H. Hospital reports. Generally closed except board minutes and certain financial reports. See § 41-9-68 (Rev. 1993); II.A.2.p., supra.
 

I. Personnel Records. Generally closed. See § 25-1-100(1) (Supp. 1996); II.A.2.d., supra.

1. Salary. Open.

2. Disciplinary records. Closed.

3. Applications. Generally closed.

4. Qualifications for job. Considered open.
 

J. Police Records. Generally permitted to be closed by law, but frequently open in practice. See § 45-29-1 (Rev. 1993); II.A.2.t., u., supra.

1. Accident reports. Open.

2. Police blotter. Depends on contents.

3. 911 tapes. Depends on contents.

4. Investigatory records.

a. Active - may be closed.

b. Closed - closed if a report identifiable to an individual criminal offender.

5. Arrest records. Open.

6. Compilations of criminal histories. May be closed.

7. Victims. Open if not investigatory record.

8. Confessions. Depends on contents.

9. Confidential informants. May be closed.

10. Police techniques. May be closed. See Op. Att'y Gen. Sept. 7, 1995 to Jerry A. Evans (policy on vehicle searches).

11. Mug shots. Open.
 

K. Prison, parole and probation reports. Some may be closed, but no general exemption exists. See §§ 45-29-3 (Rev. 1993), 47-7-21 (Rev. 1993); II.A.2.u., II.B.7., supra.
 

L. Public utility records. May be open. See § 79-23-1(1) (Rev. 1996); II.A.2.z., supra. Customer lists of public water district are open. Op. Att'y Gen. July 18, 1994 to Ken Harper.
 

M. Real estate appraisals, negotiations. Closed prior to public announcement of purchase or sale. See § 31-1-27 (Rev. 1990); II.A.2.m., supra.
 

N. School and university records.

1. Athletic records. No state statutory provision. Public school cumulative folders closed. See § 37-15-3 (Rev. 1996); II.B.3., supra.

2. Trustee records. The Board of Trustees of State Institutions of Higher Learning must keep complete minutes and records which shall be open for inspection by any citizen of the state. § 37-101-15(g) (Rev. 1996). These records include the board's review and grading of its academic programs. Mississippi Publishers Corp. v. Board of Trustees, 9 Media L. Rptr. 2450 (Oct. 19, 1983), aff'd 478 So. 2d 269 (Miss. 1985).

3. Student records. Public school records closed. See § 37-15-3 (Rev. 1996); II.B.3., supra. The names and addresses of students are, however, a public record. Op. Att'y Gen. Dec. 11, 1985 to Lucien M. Gex, Jr.

4. Other. All certified administrators in public school districts must have current evaluations on file conducted by the State. These evaluations are public records. § 37-3-2(23) (Rev. 1996).
 

O. Vital statistics.

1. Birth certificates. Records in the possession of the Mississippi Department of Health, Bureau of Vital Statistics, are open only to persons with a "legitimate and tangible interest." § 41-57-2 (Rev. 1993).

2. Marriage & divorce. Records in the possession of the Mississippi Department of Health, Bureau of Vital Statistics, are open only to persons with a "legitimate and tangible interest." § 41-57-2 (Rev. 1993). If the county is known, marriage records in the Circuit Clerk's office and divorce records in the Chancery Clerk's office are open.

3. Death certificates. Records in the possession of the Mississippi Department of Health, Bureau of Vital Statistics, are open only to persons with a "legitimate and tangible interest." § 41-57-2 (Rev. 1993).
 

V. PROCEDURE FOR OBTAINING RECORDS.

A. How to start.

1. Who receives a request? Not specified. The public body's written procedures adopted pursuant to § 25-61-5(1) should state requirements for cost, time, place and method of access which must be "reasonable." They usually identify the person or office to whom a request must be made.

2. Does the law cover oral requests? No.

a. Inspection allowed on "reasonable" terms. § 25-31-5(1) (Supp. 1996). The duty to allow inspection does not require the public body itself to search. Op. Att'y Gen. Oct. 5, 1994 to Jo-Ann Corvis.

b. If an oral request is denied: File a written one.

3. Contents of a written request.

a. A written request should, if possible, describe the requested records as specifically as feasible.

b. Fees must be paid in advance. § 25-61-7.

c. Request should ask for a response within 14 working days.

d. Records must exist, i.e., not be future records, before the statute applies to a request.

e. Other. Ask for a telephone call if the search will cost more than a specified amount.
 

B. How long to wait.

1. The public body must produce the record or deny production within 14 working days from the date of a request, or within one day if it has not adopted written procedures. § 25-61-5(1).

2. Informal telephone inquiries concerning the status of the request may be made.

3. The Act does not classify delay as a denial, but it does specifically require action within 14 days.

4. As a practical matter, the only recourse to encourage a response, other than editorial comment, is to get your lawyer to call the public body or, if necessary, file suit.
 

C. Administrative appeal. There is no provision for administrative appeal in the Act. It is possible that an agency's written procedures could create such an appeal.
 

D. Court action.

1. Who may sue? Any person who is denied the right to inspect and/or copy public records may sue. § 25-61-13; Board of Trustees v. Van Slyke, 510 So. 2d 490 (Miss. 1987). Also, third parties who furnish to public bodies records which contain trade secrets or confidential information may sue to obtain a court order protecting such records as confidential. § 25-61-9(1) (Supp. 1996); Mississippi Health Care Ass'n v. State of Mississippi, No. 134,127 (Hinds Co. Chancery Ct., April 12, 1988).

2. Priority. Proceedings under the Act take precedence on the docket over all other matters and shall be assigned for hearing and trial at the earliest practicable date. § 25-61-13(3).

3. Pro se. The chancellor is unlikely to take a pro se suit seriously. A requester litigating pro se is likely to lose rights on technical or procedural grounds.

4. Issues the court will address:

a. Denial of records. § 25-61-13.

b. Fees for records. § 25-61-13.

c. Delays in procedure. § 25-61-13.

d. Declaratory judgment on procedural issues is available in Mississippi. Miss.R.Civ.P. 57.

5. Pleading format. Mississippi's rules of civil procedure generally follow the federal rules.

6. Time limit for filing suit. None. The general statute of limitations in Mississippi is three years. § 15-1-49 (Rev. 1995). Obviously, a person seeking prompt access to public records would be well advised to file suit promptly.

7. What court. Suit is to be filed in the chancery court of the county in which the public body is located. § 25-61-13(1). A public body is not "located" in a county simply because it does business there. Board of Trustees v. Van Slyke, 510 So. 2d 490, 492-93 (Miss. 1987). In lieu of filing fee required to commence suit to enforce the Public Records Act in chancery court, an individual may file an Affidavit of Poverty (§ 11-53-17). Op. Att'y. Gen. March 31, 1999 to Ed Peacock, III.

8. Judicial remedies available. The Act specifically authorizes injunctive relief. § 25-61-13(2).

9. Costs and attorney's fees. A person who "shall willfully and knowingly deny to any person access to any public record which is not exempt" shall be liable for a penalty up to $100 plus "all reasonable expenses incurred by such person bringing the lawsuit." § 25-61-15. Denial of "access" means denial of either inspection or copying. "Willfully and knowingly" means the denial was not "mere mistake or carelessness." Individual members of a public body may be held personally liable for willful denial only if the member, apart from the public body, withholds, rejects, or refuses to grant access. Delta Democrat Publishing Co. v. City of Greenville, No. 47,014 (Washington Co. Chancery Ct., Ruling of the Court on Motions, Nov. 13, 1986). A state agency was required to pay attorney fees to an employee union when the agency refused to release compensatory time records under the Act and the union sued. Mississippi Department of Wildlife, Fisheries and Parks v. Mississippi Wildlife Enforcement Officers' Ass'n, Inc., 1999 WL 47779, *10 (Miss. 1999).

10. Fines. A penalty of up to $100 may be imposed. § 25-61-15.

11. Other Penalties. None.

12. Settlement, pros and cons. Settlement at an early stage is advisable if the records sought can be obtained. State courts generally display an unduly conservative attitude toward court awards of attorneys' fees, and it will be difficult for a person suing successfully to recover all fees.
 

E. Appealing initial court decisions.

1. Appeal routes. Appeal is to the Mississippi Supreme Court, which may choose to refer the case to the Mississippi Court of Appeals.

2. Time limits for filing appeals. An appeal must generally be brought within 30 days after entry of final judgment by the trial court. See Miss.R.App.P. 4.

3. Contact of interested amici. Amicus briefs are rare in Mississippi because media organizations are generally unwilling to finance them. Press associations in Mississippi include the Society of Professional Journalists, Sigma Delta Chi, P.O. Box 1024, Jackson, MS 39215; Mississippi Press Association, 351 Edgewood Terrace, Jackson, MS 39206; Mississippi Broadcasters Association, P.O. Box 4561, Jackson, MS 39216. The Reporters Committee for Freedom of the Press sometimes files amicus briefs in cases before the Supreme Court.

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Electronic Records

Mississippi's Public Records Act took an important step into the information age in 1996, when the legislature amended the Public Records Act to incorporate electronic records. The legislature declared that "providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each public body increases its use of, and dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained ...."
 

But what does it mean to have "reasonable access" to electronic records? Must agencies provide computers on which electronic records can be viewed? Must they maintain Worldwide Web sites through which members of the public can access public information? Must they produce records in the format requested, as opposed to the format in which the records are stored? Can a member of the public require an agency to reorganize electronic records to produce a new record that meets the requirements of the requester?
 

The Mississippi Legislature potentially harmed electronic FOI in 1999 when it passed a bill - later signed into law - potentially allowing governmental agencies to charge more money for information maintained in electronic form as opposed to paper-based records. In amending the Public Records Act, the Legislature gave agencies the authority to charge fees "reasonably related to the cost of creating, acquiring and maintaining ... electronically accessible data...." And unlike any other kind of public record, fees for electronic records can be based in part on "the purpose or purposes for which the information has been requested...," according to the 1999 amendment to the Public Records Act. These changes have not been tested in court, and it is unclear what they will mean to FOI in the state.
 

Unfortunately, the unanswered questions about electronic FOI, combined with the most recent changes to the Public Records Act, could take a byte out of the public's right to know unless journalists and others aggressively seek electronic public information.
 

Electronic FOI Tips:
 

Learn What Records the Agency Keeps on Computers, and Request Records in Electronic Format

The Public Records Act requires public bodies to provide records "in the format requested if the public body maintains the record in that format..." This is a valuable tool for the journalist who knows how to use it. Electronic data by its nature can be manipulated, categorized, edited, presented in a multitude of ways, whereas data printed on paper is static.
 

EXAMPLE: Request agency budgets in electronic format, exactly the way that the agency's budget director maintains it on the agency computer (and maybe in the same spreadsheet form). Likely, the agency uses its own computers to compare budget items from year to year - or department to department; such comparisons might not be included in a simple paper copy of the budget.
 

EXAMPLE: Request copies of all e-mail between agency officials. E-mail records typically show when e-mail was sent or received, and who sent or received it.
 

EXAMPLE: Request to see lists of "favorite places" or electronic bookmarks stored on government employees' Internet browsers; or request to see cache files to see how taxpayer-purchased computers are being used during business hours.
 

EXAMPLE: Request blank copies of all computer-based applications maintained by an agency. These might include employment, testing, permit or license requests, employment evaluations. Knowing what information is stored by the agency in each of these categories will help you formulate future electronic records requests.
 

Make Sure That All Electronic Records Available for Public Inspection

Journalists may be the only members of the public knowledgeable enough about public records to monitor agencies' management of those records. This is especially true regarding electronic records. Whenever an agency maintains records in electronic format, the Public Records Act requires the agency to make sure those records are available for public inspection. In fact, before an agency can use an electronic record-keeping system, or contract for the creation of a records database, the agency must ensure that public access is provided.

Watch Out For Private Vendors Who Contract to Keep Public Records

Government agencies nationwide are finding it more cost effective to contract with private vendors to create databases and to store various forms of public records. The Mississippi Public Records Act prevents any contract for creation or maintenance of public records databases unless the contract allows public inspection and copying of the records.
 

Monitor Fees and Challenge Improper Assessments

The Public Records Act now allows agencies to charge fees "reasonably related to the cost of creating, acquiring and maintaining ... electronically accessible data...." Recall that fees for paper records can only be "actual cost." Also, agencies are allowed to consider "the purpose or purposes for which the information has been requested...," in setting fees for electronic records. While this also gives agencies the leeway to charge less for media requests, it also gives them leeway to charge more. In other words, journalists must be vigilant in watching agencies to make sure they do not use exorbitant fees as a deterrent to freedom of information.
 
 
 

Ask Agency Officials to Perform Custom Searches of Records

The ultimate power of computer-based records is that the computer allows fast and focused research that cannot be performed in paper records. While the Public Records Act may not require agencies to perform custom searches, journalists should ask government employees to assist in the compilation of information that informs the public about its government.
 

EXAMPLE: Request that certain databases be cross-referenced or sorted to look for newsworthy trends. Are residents of certain zip codes more likely to apply for concealed weapons permits? Do inordinate numbers of school teachers in certain public school districts send their own children to other school districts?
 

1. What entities are covered?

Any state, county, or local executive or administrative board, commission, authority, council, department, agency, bureau, or any other policy-making entity, or a committee thereof, which is supported wholly or in part by public funds, or expends public funds, as well as any standing, interim or special committee of the State Legislature.
 

2. What entities are not covered?

a. State judiciary, including all jury deliberations;

b. Public and private hospital staffs;

c. Public and private hospital boards and committees;

d. Law enforcement officials;

e. The military;

f. State probation and parole board;

g. Workers' Compensation Commission;

h. legislative subcommittees and conference committees;

i. Miss. Farm Mediation Office.
 

3. What types of meetings are covered?

Any "assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control jurisdiction, or advisory power," including

a. an "informal meeting" of a public body and its staff although no votes are taken by the public body's members;

b. luncheon meetings of a public body where deliberation and discussion takes place concerning matters within the public body's jurisdiction;

c. work session of a public body;

d. joint meetings of two public bodies; and

e. a local school board of trustees' visit to a public school.
 

4. What types of meeting are not covered?

"Chance" meetings or "social gatherings" of members of a public body are not covered. Regular meetings of public officials at the local coffee shop to discuss county or local business are not chance meetings.
 

5. When can a public body go into "executive session"?

a. personnel matters relating to job performance or the character, professional competence, or physical or mental health of a person holding a specific position;

b. prospective or actual litigation;

c. security personnel, plans or devices;

d. investigations concerning allegations of misconduct or violations of law;

e. extraordinary emergencies posing immediate or irrevocable harm to persons or property;

f. prospective purchase, sale or leasing of lands;

g. preparation of admission tests for recognized professions;

h. location, relocation or expansion of business or industry;

i. line item in a budget which might affect termination of an employee or employees, although all other budget items must be considered in open meeting;

j. discussions between school board and individual students, parents or teachers within the board's jurisdiction regarding problems with the students, parents or teachers;

k. any body of the Legislature which is meeting on matters within that body's jurisdiction may go into executive session.

Procedure for executive session: All meetings must begin as open meeting, even if the only matters to be discussed are topics exempted under the law. Three-fifths affirmative vote of all members present is required before a public body can go into executive session. The reason for executive session must be stated in open meeting and recorded in the minutes.
 

6. What type of notice is required?

Unless time and place for a public body's meetings are prescribed by statute, the public body must set forth in its minutes the time, place and procedure for all of its meetings. A city must fix by ordinance the place and hour of its board meetings. A board of supervisors must usually give notice five days before a special meeting takes place.

Notice of meetings of State Legislative committees, other than conference committees, shall be announced on the loudspeaker during sessions or posted on the bulletin board. When not in session, the Clerk of the House or the secretary of the Senate shall keep the meeting times and places.
 
 
 

7. What if a public body recesses its meeting, or calls a special meeting?

Specific notice of any recessed meeting, adjourned meeting, interim meeting, or any called special meeting must be posted within one hour after the meeting is called.
 

8. Are minutes required to be taken, and if so, what must be included?

Minutes must be kept for all open and executive sessions of a public body covered by the law. The minutes must include: 1) what members are present and absent; 2) the date, time, and place of meeting; 3) an accurate recording of any final actions; 4) a record, by individual member, of any votes taken; and 5) any other information that the public body requests be included. Minutes must be recorded within 30 days after recess or adjournment. Recorded minutes must be open to public inspection during regular business hours. If a request for the minutes is made before the minutes have been recorded and/or approved, the body must make available the notes from which the minutes will be prepared.
 

9. Audiotape, videotape and film.

A public body cannot ban a person's making notes or using a tape recorder at a public meeting as long as the recording process is not interfering with the orderly conduct of the meeting. Since videotaping or filming a public body's meetings can now be done without interfering with the public body's proceedings, it would arguably be unreasonable for a public body to prohibit this type of activity.
 

10. Enforcing rights under the law.

First step is to talk to local public official and express concern that the public body is not complying. Back up your request in writing. If informal discussions fail, you have the right to file suit in chancery court and request an injunction or writ of mandamus to require compliance.

Reporters should object verbally when a meeting is about to be closed, in apparent violation of the law.
 

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Open Meetings
A Detailed Analysis of the Act

I. STATUTE -- BASIC APPLICATION.

A. Who may attend? Meetings are open to "the public." § 25-41-5.
 

B. Which governments are subject to the law?

1. State. Public bodies subject to the Act include any "policy-making entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state." § 25-41-3(a).

2. County. Yes. § 25-41-3(a).

3. Local or municipal. Yes. § 25-41-3(a).
 

C. What bodies are covered by the law.

1. Executive branch agencies. Executive branch agencies are covered, with the exception of public and private hospital staffs, public and private hospital boards and committees thereof, law enforcement officials, the military, the state probation and parole board, and the workers compensation commission. § 25-41-3(a).

2. Legislative bodies. Standing, interim, or special committees of the legislature are covered, but not subcommittees or legislative conference committees. Id.; Op. Att'y. Gen. October 17, 1989 to Rep. Jim Simpson (legislature may not by its own rules negate the applicability of the Act to legislative meetings).

3. Courts. The judiciary and all jury deliberations are exempt. § 25-41-3(a).

4. Nongovernmental bodies receiving public funds or benefits. The Act covers entities both "created by statute or executive order" and "supported wholly or in part by public funds" or expending public funds. § 25-41-3(a). Private or quasi-public entities who do not meet this test are not covered. See Op. Att'y. Gen. September 21, 1989 to Cecil Brown (non-profit corporation receiving state money not covered); Op. Att'y. Gen. Dec. 4, 1987 to Sen. Irb Benjamin (non-profit community action agency corporation not created by statute or executive order so not a "public body.") Op. Att'y. Gen. Mar. 9, 1994 to Jerry L. Mills, City Attorney of Ridgeland (non-profit baseball corporation, even though partially funded by the City, is not covered because it is not created by statute or order).

5. Nongovernmental groups whose members include governmental officials. These are not covered unless they meet the test set forth in § 25-41-3(a) and are both "created by statute or executive order" and are "supported wholly or in part by public funds." See I.C.4, supra. A county-wide volunteer governmental council is not covered by the Open Meetings Act but attendance at the meeting by members of locally elected boards may be covered. See Op. Att'y. Gen. Feb. 24, 1994 to Ronald S. Cochran, City of Biloxi.

6. Multi-state or regional bodies. These are not covered unless they meet the test set forth in § 25-41-3(a) and are both "created by statute or executive order" and are "supported wholly or in part by public funds." See I.C.4, supra.

7. Advisory boards and commissions, quasi-governmental entities. These are covered. § 25-41-3(a); Mayor and Aldermen v. Vicksburg Printing and Publishing Co., 434 So. 2d 1333, 1336-38 (Miss. 1983) (Vicksburg Planning Commission); Op. Att'y. Gen. Aug. 7, 1981 to Howard C. Ross Jr. (Jackson Planning Commission).

8. Other bodies to which governmental or public functions are delegated. These are covered if they meet the test set forth in § 25-41-3(a) and are both "created by statute or executive order" and are "supported wholly or in part by public funds." See I.C.4, supra. The Board of Trustees of State Institutions of Higher Learning is not exempt, even though it is created by constitution as well as statute. Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 273-78 (Miss. 1985). 9. Appointed as well as elected bodies. Whether the public body is elected or appointed is irrelevant to coverage under the Open Meetings Act.
 

D. What constitutes a meeting subject to the Act.

1. Number. To have a "meeting," there must be an "assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." § 25-41-3(b). Although there is no quorum requirement in the language of the statute, the Attorney General's office has opined that a meeting of any governmental body in which a quorum is not present does not fall strictly within the purview of the Open Meetings Act: Without a quorum, no "official acts may be taken upon a matter over which the public body has supervision." Op. Att'y. Gen. April 9, 1999 to Robert P. Chamberlin. (Some public bodies have been known to take advantage of this loophole by holding controversial meetings piecemeal, so that no quorum of the board was present at any given time.) Chance meetings or social gatherings are exempt. § 25-41-17. A "chance" meeting cannot be a meeting which was called, either officially or unofficially. Factors to be considered in determining whether a meeting is a "social gathering" include the activities that take place, the notice given, the agenda, and claims for per diem and travel expenses. A luncheon held on the day of a board meeting was held not to be a "social gathering" in Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 278 (Miss. 1985). A public board can, however, attend a social function without complying with the Act "where no action is taken and their only function is to listen" Hinds County Board of Supervisors v. Common Cause, 551 So. 2d 107, 123 (Miss. 1989). Meetings with other public bodies are covered. Id.

2. Nature of business subject to the law.

a. "Information gathering" "fact-finding" sessions. These are covered. Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 278 (Miss. 1985). "Work sessions" are also covered. Op. Att'y. Gen. Aug. 22, 1984 to Franklin C. McKenzie Jr.

b. Deliberations toward decisions. These are covered. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278 (Miss. 1985). Board members cannot meet informally before the meeting to decide how they will vote. Op. Att'y Gen. Feb. 15, 1995 to Freida E. Sipes. Cf. Maxey v. Smith, 823 F. Supp. 1321, 1331 (N.D. Miss. 1993) (potential due process violation).

3. Electronic meetings. No specific reference or requirement that the "assemblage" be in person. § 25-41-3(b).

a. Conference calls. Telephone polls may not be used to transact public business. Op. Att'y. Gen. April 20, 1984 to George S. Smith; Op. Att'y. Gen. May 14, 1987 to Sharron F. Abide. If telephone polls are taken, the deliberations must have taken place pursuant to the Open Meetings Act. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278-279 (Miss. 1985). See also, Op. Att'y. Gen. Sept. 26, 1990 to Katherine Skelton (telephone conference call may be used by a board member to participate in a lawfully called meeting provided there is a quorum physically present and it is done in a manner that will allow the public in attendance to hear all discussion and deliberations regarding any and all matters taken up at such a meeting). § 83-23-219 (Rev. 1991) (Mississippi Life and Health Ins. Guaranty Association to establish regular times and places for conference calls).

b. E-mail. No specific reference.
 

E. Categories of meetings subject to the law.

1. Regular meetings.

a. Definition. Not defined in the Act.

b. Notice. No notice need be given if the time and place of meeting is specifically prescribed by statute. § 25-41-13. If there is no statutory provision, the public body is to state in its minutes the times and places and procedures by which its meetings are to be held. Legislative committee meeting times are announced during the session by loudspeaker or bulletin board, and at other times are kept by the clerk. §§ 25-41-13(3), and (4).
 

c. Minutes.

(1) Information required. Must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body request be included or reflected in the minutes." § 25-41-11. See Op. Att'y. Gen. November 27, 1989 to Guy T. Gillespie, III.

(2) Are minutes public records? Minutes must be recorded within 30 days and are a public record. § 25-41-11 (Supp. 1991); Op. Att'y. Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y. Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y. Gen. Jan. 2, 1986 to Charles S. Tindall III.

2. Special or emergency meetings.

a. Definition. No statutory definition.

b. Notice requirements. Notice "of the place, date, hour and subject matter of any recess meeting, adjourned meeting, interim meeting or any special meeting shall be posted within one (1) hour after such meeting is called in a prominent place available to examination and inspection by the general public in the building in which the public body normally meets." § 25-41-13(1). Notice given must be "reasonably calculated to insure that a person could find out that a regular, recessed, interim or special called meeting is scheduled and where and when it will occur." Op. Att'y. Gen. March 23, 1983 to E. Foley Ransom. See Op. Att'y. Gen. December 18, 1989 to John R. Tabb (notice provision applied to special meetings of the Miss. State Highway Commission). By special statute, notice of all special or adjourned meetings of a board of supervisors must be posted at the courthouse door or published in the newspaper five days before the meeting. § 19-3-19 (Rev. 1995); Op. Att'y. Gen. Aug. 24, 1989 to Ruma Hague (notice need not list every party that may be affected in deliberations). Op. Att'y. Gen. Dec. 29, 1986 to Joe B. Moss.

c. Minutes.

(1) Information required. Must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body request be included or reflected in the minutes." § 25-41-11. See Op. Att'y. Gen. November 27, 1989 to Guy T. Gillespie, III.

(2) Are minutes public records? Minutes must be recorded within 30 days and are a public record. § 25-41-11; Op. Att'y. Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y. Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y. Gen. Jan. 2, 1986 to Charles S. Tindall III.

3. Closed meetings or executive sessions.2

a. Definition. No statutory definition.

b. Notice requirements. Notice must be given as for other meetings. The meeting must begin as an open meeting and must be closed by a three-fifths vote. § 25-41-7(1). Op. Att'y. Gen. June 13, 1990 to Freddie Love (application of § 25-41-7 to a meeting of a mayor and city aldermen).

c. Minutes.

(1) Information required. Must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body request be included or reflected in the minutes." § 25-41-11. See Op. Att'y. Gen. November 27, 1989 to Guy T. Gillespie, III.

(2) Are minutes public records? Minutes must be recorded within 30 days and are a public record. § 25-41-11 (Supp. 1991); Op. Att'y. Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y. Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y. Gen. Jan. 2, 1986 to Charles S. Tindall III.

d. Requirement to meet in public before closing meeting. Meeting must begin as an open meeting. § 25-41-7. The subsequent procedures are as follows:

(1) A member must make motion in open meeting for the meeting to be closed to determine whether or not the board should declare and executive session. The vote on this motion is taken in an open meeting. If a majority votes to close the meeting to make a determination on the question of an executive session, the meeting is closed for this purpose. § 25-41-7(2).

(2) No other business during this closed interim shall be considered until a vote has been taken on whether or not to declare an executive session, § 25-41-7(2). In order to go into executive session, a majority of three-fifths of those present must vote in favor of it. § 25-41-7(1).

(3) The Board must then state in open meeting the reason for going into executive session, and this reason and total vote on that question must be recorded on the minutes of the meeting. § 25-41-7(3), (5).

(4) The vote to go into executive session is applicable only to that particular meeting on that particular day. § 25-41-7(6).

(5) Action on the stated subject matter of the executive session may be taken during executive session, but the action must be recorded in the minutes. Op. Att'y. Gen. December 6, 1989 to Paul B. Henderson.

e. Requirement to state statutory authority for closing meetings before closure. The reason for holding an executive session shall be stated in an open meeting and shall be recorded in the minutes, § 25-41-7(3); Op. Att'y. Gen. June 13, 1990 to Freddie Lover. The reason given must be stated "with sufficient specificity to inform those present that there is in reality a specific, discrete matter or area which the board had determined should be discussed in executive session." Hinds Co. Bd. of Supervisors, supra, 551 So. 2d 111. The discussion of "litigation" is not a sufficient reason. Id. See also Op. Att'y Gen. Aug. 22, 1991 to Diane Stewart. ("To simply say `personnel matters,' or `litigation' tells nothing.")

f. Tape recording requirements. None.
 

F. Recording/Broadcast of Meetings.

1. Sound recordings allowed. The public body may "make and enforce reasonable rules and regulations for the conduct of persons attending its meetings." § 25-41-9. Tape recording must be allowed so long as it does not interfere with the orderly conduct of the meeting. Op. Att'y. Gen. Sept. 18, 1985 to Stanford Young. See also Op. Att'y. Gen. Nov. 20, 1991 to Leslie Scott ("creating a rule which expressly prohibits all sound equipment is not reasonable. The commission could only bar sound equipment in the hearing if the equipment seriously disrupts the orderly flow of the meeting"). See also Op. Att'y. Gen. Sept. 6, 1990 to Henry L. Lackey ("whether television and radio coverage disrupts a meeting are questions of fact to be determined by public officials charged with the responsibility to enforce reasonable rules and regulations for the conduct of persons attending open meetings"); Op. Att'y. Gen. May 3, 1990 to Fred Garrett.

2. Photographic recordings allowed. There is no statutory language or attorney general's opinion which deals directly with photographing meetings.
 

II. EXEMPTIONS AND OTHER LEGAL LIMITATIONS.

A. Exemptions in the open meetings statute.

1. Character of exemptions.

a. General or specific. Exemptions are specific, and exclusive. Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 277 (Miss. 1985).

b. Mandatory or discretionary closure. Exemptions are not mandatory. They are discretionary. § 25-41-7(3).

2. Description of each exemption.

a. "Transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position." § 25-41-7(4)(a). This exemption includes the transaction of business and discussions regarding "employment or job performance of a specific person in a specific position or termination of an employee holding a specific position," including discussion "concerning a line item in a budget which might affect the termination of an employee or employees" but not including final budgetary approval. § 25-41-7(k). The legislature adopted these definitions in 1990 to reject the suggestion in Hinds County Board of Supervisors v. Common Cause, 551 So. 2d 107, 113 (Miss. 1989) that "personnel matters" could include a "large area of subject matter" such as an "increase in life insurance" and the even broader views stated by the trial court. A "personnel matter" must relate to an employee "holding a specific position." Discussion of matters affecting employees generally are not exempt. Also not exempt are discussions concerning other state officials, the employees of other agencies, or independent contractors such as architects. Id. at 124-35. See also Note, The Personnel Matters Exception to the Mississippi Open Meetings Act - A Cloud Over the Sunshine Law, 7 Miss. Coll. L. Rev. 181 (1987). Members of the Public Employees' Retirement System may request closure of hearings regarding a member's mental or physical incapacitation for the future performance of duty. § 25-11-113(1)(c) (Supp. 1996).

b. "Strategy sessions or negotiations with respect to prospective litigation, litigation or issuance of an appealable order when an open meeting would have a detrimental effect on the litigating position of the public body." § 25-41-7(4)(b). A public body can invoke this exception and close a meeting concerning city annexation, even when no attorney is present. The phrase "prospective litigation" "connotes litigation reasonably likely to occur in the reasonably foreseeable future," not "imminent" litigation. Mayor and Aldermen v. Vicksburg Printing & Pub. Co., 434 So. 2d 1339-40 (Miss. 1983); Op. Att'y. Gen. May 1, 1987 to John R. Drennan.

c. "Transaction of business and discussion regarding the report, development or course of action regarding security personnel, plans or devices." § 25-41-7(4)(c).

d. "Investigative proceedings by any public body regarding allegations of misconduct or violation of law." § 25-41-7(4)(d).

e. "Any body of the Legislature which is meeting on matters within the jurisdiction of such body." § 25-41-7(4)(e).
 

f. "Cases of extraordinary emergency which would pose immediate or irrevocable harm or damage to persons and/or property within the jurisdiction of such public body." § 25-41-7(4)(f). This exemption was interpreted to allow the State Board of Medical Licensure to hold executive sessions regarding the licensing of abortion doctors. Op. Att'y. Gen. Apr. 20, 1995 to P. Doyle Bradshaw.

g. "Transaction of business and discussion regarding the prospective purchase, sale or leasing of lands." § 25-41-7(4)(g).

h. "Discussions between a school board and individual students who attend a school within the jurisdiction of such school board or the parents or teachers of such students regarding problems of such students or their parents or teachers." § 25-41-7(4)(h).

i. "Transaction of business and discussion concerning the preparation of tests for admission to practice in recognized professions." § 25-41-7(4)(i). A 1988 statute purports also to exempt meetings of the Mississippi Advisory Council in Occupational Therapy "upon request of an applicant who fails an examination, to prepare a response indicating any reason for his or her failure." § 73-24-11 (Rev. 1995).

j. "Transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business or an industry." § 25-41-7(4)(j).
 

B. Other constitutional or statutory requirements for closed or open meetings.

1. "[A]ll courts shall be open . . ." Miss. Const. of 1890, art. 3, § 24. Despite this language, the closure of pretrial proceedings in a murder case was upheld in Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163 (1987).

2. "In all criminal prosecutions the accused shall have a right to . . . a speedy and public trial . . . ." Miss. Const. of 1890, art. 3, § 26.

3. The legislature may close its doors "in cases which may require secrecy." Miss. Const. of 1890, art. 4, § 58; see also § 25-41-7(4)(e).

4. Meetings in public schools must be "public meetings," § 37-7-301(k) (Rev. 1996); Op. Att'y. Gen. Jan. 20, 1983 to Will A. Hickman.

5. Insurers who wish to challenge actions by the insurance commissioner are given the right to a confidential hearing in certain instances. 1996 Miss. Laws ch. 478.
 

C. Court mandated opening, closing.

1. "[I]n prosecutions for rape, adultery, fornication, sodomy or the crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial." Miss. Const. of 1890 art. 3, § 26. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 n.22 (1982), the United States Supreme Court expressly reserved the question of whether this clause is constitutional under the first amendment.

2. "The general public shall be excluded [from family court hearings in cases of children] and only such persons shall be admitted as have a direct interest in or who have been subpoenaed as witnesses therein." § 43-23-17 (Rev. 1993).

3. On closure of court proceedings generally in Mississippi, see In re Gannett River States Pub. Corp., 630 So. 2d 351 (Miss. 1994); Gannett River States Publishing Co. v. Hand, 571 So. 2d 941 (Miss. 1990); Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163 (Miss. 1987).
 

III. MEETING CATEGORIES -- OPEN OR CLOSED.

A. Adjudications by administrative bodies. No express exemption, but the litigation exemption might apply to deliberations. See § 25-41-7(4)(b). See also Op. Att'y. Gen. Oct. 16, 1989 to William Bruce McKinley. ("This office is of the opinion the Act does not exclude records made as they relate to pre-decisional and deli