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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