Opening Closed Doors
A Guide to Mississippi's
Public Records and
Open Meetings Laws
"Congress shall make no
law ... abridging the freedom of speech, or of the press ...."
-- First Amendment to
the United States Constitution
"The freedom of speech
and of the press shall be held sacred ...."
-- Mississippi Constitution,
Art. 3, § 13
How to obtain
your own copy
of the handbook
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.
BRIEF OVERVIEW
OF MISSISSIPPI'S
FREEDOM OF INFORMATION STATUTES
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.
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Public
Records
A
QUICK SYNOPSIS OF THE ACT
Mississippi Public Records
Act
MCA § 25-61-1 et
seq.
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.
Back to the top
Public Records
A
More Detailed Analysis of the Act
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.
Back to the top
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?
Back to the top
Open Meetings
A
Brief Synopsis of the Act
Mississippi Open Meetings
Act
MCA § 25-41-1 et
seq.
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.
Back to the top
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 |