FOI Handbook

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

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Table of Contents

INTRODUCTION

OVERVIEW OF MISSISSIPPI LAWS

PUBLIC RECORDS

OPEN MEETINGS

APPENDICES

HYPOTHETICALS


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.

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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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