FoI Spotlight
Spring 2010, Vol. 10, No. 1
In this Issue…

Public records costs remain high

Legislative Report 2010

NFOIC summit highlights

Victory and disappointment

Secrecy issues around Mississippi

 

Public records costs remain high

By Anita Lee, MCFOI president

“Actual cost“requirement
Citizens of the state too often discover that public records are cost-prohibitive because of the fees public agencies are allowed to charge for gathering and reproducing copies.

In fact, public officials can take advantage of the leeway our law allows to charge excessive amounts as a deterrent to access.

The intentions may have been good when the Legislature included in the open records law that only "actual cost" can be charged for records. But who knew those two words could be interpreted in so many ways?

One state agency, for example, recently added a $250 charge to a request for travel records because, the agency explained, it would need to pay for a software program that would identify the records.

Computer programming is frequently an avenue for higher fees, as are legal costs for reviewing records before they are released.

We have had instances of public officials seeking thousands of dollars for public records. Costs in these cases can be too high a hurdle for citizens to clear.

Many of our legislators understand this, and for that we are grateful.
Limiting costs of records
Rep. David Norquist, D-Cleveland, for two years has introduced a bill to limit records research costs. His proposal requiresdpublic records be assembled by the lowest-paid public employee capable of doing so. The bill also prohibited research by non-employees of public entities.

The House removed the provision that would have prohibited records assembly by non-employees. Cost of reproduction of records in committee was limited to 50 cents a page.

The Senate entirely erased costs from the bill and instead added a provision to shorten response time from 14 to seven days which was signed into law by the governor (see Legal Viewpoint column).

Anecdotes continue to trickle into newsrooms about exorbitant charges for public records. Members of the media should keep names and numbers of residents who have been unable to obtain records due to the cost.

These anecdotes can be a powerful reminder to our legislators in 2011 that the law must be changed so the public can afford the records they want and need.

The Model Public Records rules adopted by the Mississippi Ethics Commission proposes a ceiling of 15 cents per page for copying records, requiring an agency to justify additional charges.

MCFOI will return to the Mississippi Legislature in 2011 to again ask for clarification of what actual cost means and seek to establish a standard practice for records charges for all agencies.

More public support is important to get the law changed. At every opportunity, citizens need to get involved and urge legislators to deal with the problem of excessive charges for public records.

Legislative Report 2010

By Barbara Powell, MCFOI lobbyist
Records response deadline changed

This year MCFOI helped initiate and support three bills to improve access to meetings and records of public bodies. We have a victory on one of those bills.

House Bill 113, which shortens the deadline to respond to public records requests, has been signed into law. The new deadline is 7 working days with a possibility of extending to 14 working days if the case is unusually difficult.

Sen. David Blount, D-Hinds, a former president of MCFOI, can be thanked for introducing the initial bill to shorten the deadline. When that bill died, he amended HB 113 to insert the 7-day response time provision.

The new deadline will make a significant improvement in the ability to secure records in a reasonable time.

Curtailing records charges and increasing violations fines
Two other two bills made some progress.

House Bill 113 as introduced by Rep. David Norquist, D-Cleveland, limited the cost of fulfilling public record requests, but that provision was removed in the Senate.

Senate Bill 2373 imposed the fine for violating the Open Meetings Act on the individual violators rather than the public body, which is the current law, and increased the fine.

This bill also increased the penalties for violations of the Open Meetings Act to $1,000, a more effective violations deterrent than the current $100.

Although the bill passed both houses, it was killed by being held on a motion to reconsider. The authors have promised to file both bills again next year, so the fight goes on.

Privacy of information
A significant amount of our work during the legislative session was to amend or kill bills that reduced openness in government.

In an effort to protect privacy, House Bill 691 and Senate Bill 2788 required government agencies and businesses to keep all personal names, addresses, phone numbers confidential.

If enacted, this legislation would have made the Secretary of State’s campaign finance reports and lobby reports meaningless, not to mention the many other lists and reports that are a part of government accountability.

We were able to convince the authors of these bills that their wording was far too broad, and the bills died in committee.

House Bill 195 permitted chancery clerks to exclude an individual’s social security number and any personal and confidential financial information from any bank or financial institution from any public documents filed in any records under the custody of the chancery clerk.

With our encouragement, HB 195 was amended to only permit the clerks to omit the social security numbers. It died in Senate Judiciary A Committee.
Building permit violations
House Bill 1041 and Senate Bill 3065 dealt with violations of building permits from the Commission on Marine Resources. These violations are currently handled by the commission in an open meeting.

This bill allowed the director to impose fines and grant after-the-fact permits to violators without any public record or accountability.

We can thank the chair of the House Committee on Marine Resources Rep. Frances Fredericks, D-Harrison, , who killed both bills because of their lack of public openness.

Open government vigilance
We thank members of MCFOI for contacting elected officials and their support of public openness during the legislative session.

Democracy can thrive only when government is open and accountable to citizens.

The MCFOI mission Is to guard against all efforts to cut off access to government information which should be available to the public and to improve access to meetings and records.


National Freedom of Information Coalition Summit Highlights

By Jeanni Atkins, MCFOI executive director

Litigation trends and travails

Funding for FOI litigation is a casualty of the current economic woes engulfing newspapers around the country.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press expressed concern that local governments are aware that news organizations are reluctant to engage in litigation and thus are emboldened to withhold records confident that the likelihood of a lawsuit is minimal

That puts a greater burden on FOI advocates to find ways to build coalitions with other organizations and get newspapers to join together to fight efforts to close off access to government information.

"You have to get involved in the process, Dalglish said. “Nobody else is going to take care of it."

Ginger Stanley, executive director of Virginia Press Association for twenty years said she spends time building coalitions of organizations willing to fight for FOI access and share litigation expenses.

In building coalitions for litigation Dalglish suggested including daycare center operators, employers, landlords, and information businesses like Lexis and Westlaw.

The real danger of failing to challenge the interpretation of the law by public bodies , Stanley pointed out, is that “we end up with law with no teeth.”

Media attorney Ashley Messenger pointed out that making FOI a part of the business plan for a newspaper builds credibility and minimizes the need to fight to get responses to public records requests in the future.

Messenger urged fighting for access on principle said thinking of FOIA as part of the business plan not only establishes credibility, but it also minimizes fights on future responses as the governmental entities know that the news organization will fight for public records access.

The panel also addressed concerns about privacy

In the past when records were kept in file drawers, requiring going physically to the place where they are kept such as the courthouse where they were more or less protected by “practical obscurity”.

Now that records are going online, practical obscurity of information is rapidly vanishing, and this has been a factor in the growing concerns about keeping private information private.

Ginger Stanley said government should only collect information on citizens required by law and what is necessary

Transparency in the digital age

Digital methods the federal government uses to post data were discussed by three data experts.

Data editor for the Center for Public Integrity David Donald said the central hub website for federal high value data is www.data.gov.

These data sets may be broken down into smaller, more local information by websites like Everyblock.com. But he warned that you have to be aware that some data may be dirty or unreliable because of bad collection methods.

John Wonderlich, of the Sunlight Foundation, mentioned new website and technologies being used to increase transparency such as Transparencydata.com which trackd campaign contributions at state and local levels. A Brtish website provides a third party method for submitting records requests, tracks them and helps individuals obtain information: Whatdotheyknow.com

Government entities in Mississippi might consider these websites as models for posting data and processing records requests.

J. H. Snider, Snider, president of iSolon.org, suggested expanded use of metadata tag, which are required of public bodies that log in their data. Thus information could be searched and compared. Conflicts of interests, for example, could be tracked using tags on funding contributions and appropriations.


Legal Viewpoint

By Leonard Van Slyke, Watkins Ludlam Winter & Stennis
Victory and disappointment

The 2010 session of the Mississippi legislature was the scene of both a major victory and a

major disappointment for open government advocates.

The victory was the passage of a bill reducing the number of days that a public body has to respond to a Public Records request.

The disappointment was the death of the bill that would have enhanced penalties for violations of the Open Meetings Act.

Records response time reduced
House Bill 113 generally reduces the response time for Public Records requests to seven days, effective July 1, 2010. The response time has previously been 14 days.

Arkansas and Louisiana currently have three-day response periods, while we are now in line with the Tennessee rule of seven days.

The new Mississippi legislation does allow for a public body to take more than seven days, but only if it provides “a written explanation to the person making the request stating that the record will be produced and specifying with particularity why the records cannot be produced within the seven-day period.”

Thus, a public body is not allowed to extend a response to a request for records beyond seven days and then later claim that the record is exempt.

The determination of whether there is an allowable exemption will have to be made by the public body within the seven day period.

The Public Records Act now also contains a provision that the time for producing a record cannot be extended beyond 14 days for any reason unless there is mutual agreement of the parties.

Cite specific exemption in records denial

Another important change to the law made by House Bill 113 has been somewhat overlooked.

That change now requires a public body to state in writing the specific exemption the public body is relying upon if it claims a record(s) to be exempt under the Public Records Act.

In the past, some public bodies would claim an exemption but fail to tell the requestor which provision of the law it believed made the record exempt.

This new provision should make it easier for the requestor to evaluate whether the public body had a right to claim an exemption.

If the requestor believes the public body’s analysis that the specific exemption cited exempts the record to be incorrect, of course then the requestor may proceed to the Ethics Commission and ask that body to render an advisory opinion.

Bill increasing penalties for violations killed

With regard to the failed effort to enhance penalties under the Open Meetings Act, it was particularly disappointing to transparency forces because both houses had passed the bill in somewhat differing forms before the House Bill was held on a motion to reconsider.

That motion effectively killed the bill.

The Senate version of the bill, SB 2373, would have allowed for a fine of up to $1,000 per person for each violation of the Open Meetings Act.

Further, it would have required the individual members violating the law to pay the fine rather than the public body.

The bill also would have amended current law to allow a fine of $100 per violation against individuals who wrongfully withheld a record under the Public Records Act. In all instances, reasonable attorney’s fees could have also been awarded.

It is expected that a version of this bill will be introduced in the 2011 legislative session.

Though it is slow, progress continues to be made in making Mississippi government more transparent at all levels.


Secrecy issues around Mississippi

By Jeanni Atkins
Opting for openness
Two series on secrecy this year examined some of the problems citizens confront when trying to gain access to government meetings and records.

There are some bright spots and glimmers of change, however, in how public officials view their responsibility to conduct business in an open and public manner.

Petal Mayor Hal Marx, for example, started a blog after he was elected last year. “It’s a good way for me to speak directly to the people of Petal,” he told the Hattiesburg American. “A web site and related tools such as a blog does allow for unfiltered communication.”

Brandon Presley, Northern District Public Service Commissioner urged broadcasting meetings and putting them online. Hearings but not regular meetings are now online.

Presley thinks the public “has a right to know” and “ought to be able to see what we do when we’re in office,” he told the Northeast Daily Journal.

Utility cooperatives, he believes, should be transparent and has pushed for publicizing board elections and disclosure of finances.

One of the problems around the state is lack of timely and full disclosure of incidents of crime. But Gulfport police chief Alan Weatherford has sought to change that, implementing great er transparency by establishing an e-mail alert system citizens can sign up for to be notified of crime in their area. He and his officers also go to neighborhoods to listen to citizen concerns and post quarterly and annual crime summaries online.

Tupelo Mayor Jack Reed, Jr. hired a communications director and posts city council agendas, minutes and videos online. Tupelo also now has a Facebook page and uses Twitter to post messages.

Southhaven posts videos of Board of Aldermen meetings online and archives them up to 90 days. Oxford and Bruce mayors allow videotaping of meetings which are run on local networks. The equipment cost around $1,500 according to Southhaven Mayor Greg Davis.

Cities are finding that putting information online such as current budgets, ordinances, expenditures and minutes cuts down on individual requests for documents which saves everyone time and money.

Community groups also are aware of the need for transparency in government. The Mississippi Parents United Together push for more disclosure of basic information such as education records. Mandy Rogers, president of this organization for parents of children with disabilities, said they use these records to pinpoint special-education weaknesses and craft goals for improvement around the state.

Prentiss County resident Rita McCarter has a keen interest in city and county government and is on a one-woman crusade to enlighten people about the open meetings and records laws. She distributed the MCFOI legal handbook to the county board of supervisors, school board and superintendents, chancery clerk, Booneville mayor and Board of Aldermen and each group’s attorney.

Edgar and Ninabeth Capaning have organized a Concerned Citizens of New Albany group to work toward more openness in government.
Violations of meetings law routine

But violations of the Open Meetings Act are all too common.

While some jurisdictions are posting minutes of meetings online, citizens in other places have trouble getting up-to-date minutes.

The Concerned Citizens of New Albany, for example, report that they have been unable to get a copy of the minutes since July 2009. The law, however, requires minutes to be available no later than 30 days following a meeting.

Private discussions of less than a quorum also often occur. But sometimes a public official blows the whistle when that happens.

When some MDOT commissioners met over dinner to discuss allocating money for a highway interchange in Madison County, transportation commissioner Dick Hall filed a complaint with the Mississippi Ethics Commission which ruled that the gathering violated the law.

Hall told the Associated Press that the law lacks teeth. “The punishment should go to the individuals involved,” he said. “It’s an individual behavior and ought to be penalized.”

Tom Hood, executive director of the Mississippi Ethics Commission, shares that view and supported the bill to make individuals responsible for payment of a fine for violations of the Open Meetings Act which, unfortunately, was killed.

Problems of access to records
Sometimes records are closed to keep embarrassing information from the public. The Greenwood Commonwealth reports, for example, that 911 tapes were closed a decade ago because a WLBT reporter obtained a 911 tape that revealed an emergency call in Jackson was mishandled. While there are concerns about privacy, in most states those records are public as a means to is to make responders accountable for how they deal with emergencies.

Access to 911 records means those who mishandle calls will be weeded out and those wrongfully charged with not responding properly can be exonerated. And it means that the public will be better served by people trained to deal with emergencies which can result in lives saved.

LEGAL HANDBOOK

Opening Closed Doors:

A Guide to the Mississippi Public Records Act,

Open Meetings Act
Single copy: $10.00

Make check payable to MCFOI and mail to:

Jeanni Atkins

Mississippi Center for Freedom of Information

School of Journalism, 114 Farley Hall

University of Mississippi, University, MS 38677

E-mail: iatkins@olemiss.edu