MCFOI Spotlight Winter 2002

ADDING ENFORCEMENT LANGUAGE
TO THE OPEN MEETINGS ACT
IS MCFOI'S 2002 LEGISLATIVE PRIORITY

In a fall 2001 meeting with Lt. Gov. Amy Tuck, Speaker Tim Ford and Sen. Hob Bryan, MCFOI representatives asked that the same enforcement language in the Public Records Act be added to the Open Meetings Act.

Dr. Jeanni Atkins, University of Mississippi journalism associate professor, compiled a very thorough report on the problems with statewide compliance with the Open Meetings Act, detailing the need for enforcement provisions in the law. The report is based on phone calls to every newspaper in the state to survey freedom of information issues in Mississippi communities.

To review some of the highlights of the report, journalists from Carthage to Brookhaven to Columbus to Tupelo report local officials saying they could close meetings whenever they chose, and doing it. Overuse of the executive session privilege is one way officials close meetings. Yazoo City, Gulfport, and Madison all report improper use of executive sessions to shut out the public.
In spite of guidelines from the state Supreme Court and the Attorney General's Office, officials apparently feel there is no need to follow either the spirit or the letter of the law if there is no penalty for noncompliance.

Newspapers in Vicksburg, Columbus, Greenville and Brookhaven report that their local officials became more responsive when the newspaper focused on the abuses of closed meetings.
The Brookhaven Daily Leader publishes an Open Government Watch that has had a positive effect on most local agencies' openness, but has only stiffened the resolve of the mayor. Both Oxford and Columbus elected new mayors for whom open government was an important part of their platform.

The Reporters Committee for Freedom of the Press has provided information about open meetings laws in the 50 states. Thirty-three states have enforcement provisions in their law to allow for paying attorney's fees and reasonable costs; among those are Arkansas, Georgia, Louisiana, Tennessee, and Texas. Alabama case law provides for attorney's fees and court costs [Bell vs. Birmingham News]. Eight other states provide for payment of costs but not attorney's fees, or partial attorney's fees. Eight states have no provision for enforcement, including Mississippi.
Sen. Bryan said last session that his committee members had voiced concerns about the possibility of numerous and frivolous lawsuits being brought against public bodies if enforcement provisions were added to the state's Open Meetings Act. In fact, the same language we are requesting has been in the state's Public Records Act for almost 30 years without such a problem.

The Legislative leadership has been responsive to our requests for support of this change. The MCFOI will need the support of the media and all open government advocates during the upcoming Legislative session to see this bill passed.

ENFORCEMENT OF THE PROBLEMS
OF ACCESS TO JAIL DOCKETS
AND ARREST RECORDS REVEALED BY AUDIT

In some Mississippi counties a member of the public who asks to see jail dockets or arrest records - required by the Mississippi Public Records Act to be released to anyone - is out of luck.

Participants in a statewide audit were denied access to these records in Coahoma, Forrest, Leflore, Tunica, and Warren counties. Some were told that information could be released only to reporters or other "authorized personnel." The Indianola administrator said "We just don't give that out to anybody."

The Associated Press executed an audit in 40 counties - data in 4 had to be discarded because of recording problems - with the help of MCFOI, Common Cause, press association and newspapers. Trained volunteers asked to see the jail docket and arrest record report on November 14.

Fewer than half of the sheriffs in 36 counties granted access to the jail docket and arrest records. While most agencies allowed volunteers to see jail dockets, twenty departments refused to let them see an arrest report. Eighteen were asked for identification. Deidra Walters reported being grilled about why she wanted the information. Others said they were asked to identify themselves or give a reason for seeking access or both; some felt harassed.

In some cases officials in 12 counties told volunteers part of the information sought was not a public record.

A Winston County clerk in Louisville told Jennifer Helms she must give a reason to access police records. Helms said a clerk "did not know the jail docket was a public record until she talked to her supervisor." The response to the written request was a document with all information blacked out except the name, date of arrest and arresting officer. Also on the document was this statement: "Attorney General's opinion states that no personal info may be public record info."

Reasons for nondisclosure could be fear of lawsuits and unfamiliarity with state law, according to director of Mississippi Sheriffs Associations Boys and Girls Ranch in Columbus

"Before I release any information about any of our inmates, I'm going to have to get with our attorneys and see what they suggest," said recently elected Winston County Sheriff Randy Thomas. "I don't know right now what information we can release." He said he would need a written request to review with his attorney.

Information may be withheld, Deputy Attorney General Mike Lanford, said, only if release would hamper an investigation or endanger victims or witnesses.

Port Gibson Claiborne County Sheriff since 1979, Frank David, sends members of his staff to conferences to be sure they understand the law. "We know that records kept here are public records," Davis said, "and we make our records here readily accessible to the public."
Clearly, however, that is not the general practice in other parts of the state. Hinds County Sheriffs Department spokesman Steve Pickett said most of their 409 employees are not trained in freedom of information law.

Another ongoing problem with access to law enforcement records is reflected in the recent efforts to get an investigative report in Oxford.

Lafayette County Sheriff Buddy East refused to disclose the investigative file on Leonard Jasper Young, who was sentenced to 20 years in prison for the murder of William Bramlett. Young is serving a life sentence for a 1999 kidnapping and is charged with the death of a University of Memphis student.

University of Mississippi journalism majors Elizabeth Oakes and Will Bardwell sought the file to learn why Young only got 20 years for the Bramlett murder instead of the death penalty. The Associated Press was also denied access.

MCFOI attorney Leonard Van Slyke said that the investigative file should be released with any sensitive information withheld. Reporters Committee for Freedom of the Press executive directorLucy Dalglish said that in most states information in completed investigations is a public record.

ENFORCEMENT OF THE SECRET DETENTION
AND CLOSED ARREST RECORDS
AND INCIDENT REPORTS NOTHING NEW IN MISSISSIPPI

Secret detentions and covert military tribunals that are part of sweeping new federal anti-terrorist security measures have been skeptically received, if not forcefully condemned, by some constitutional experts and defenders of civil liberties. The veil of secrecy, critics contend, is contrary to established democratic principles and that crack could widen into long-term erosion of our cherished form of open government.

Secret detentions, unfortunately, are nothing new in Mississippi. They were a brutal tool sometimes used by law enforcement agencies during the civil rights movement against blacks who sought to claim equality and justice. And they persist even today.

Several years ago in Greenville five people were killed over the July 4 holiday and police rounded up about a dozen people, put them in jail and kept them there for varying lengths of time. None was charged with the crimes; only a few names were publicly released in relation to the slayings and eventually all were freed. Last year in Noxubee County, the Sheriff's Department arrested and jailed four people in a murder investigation.

The department initially identified only two suspects. A third was identified several days after being jailed, but the name of the fourth person arrested was never released, and the outcome of his detention remains uncertain. In Lowndes County, a series of rural church burglaries was cracked by the Sheriff's Department last year. Although the sheriff had suspects in his jail, he attempted to stifle the report. He relented only after our newspaper obtained some of the information through other law enforcement agencies.

The state abounds with similar occurrences, even though there are laws that clearly define arrests as public events and require that records of those police actions must be revealed.

And the fight against secrecy in withholding police incident reports
from public view remains at a standstill in most law enforcement jurisdictions, even though Attorney General Mike Moore issued a memorandum last year advising all police agencies in the state those are public documents.

In Lowndes County, some law enforcement agencies have taken a new approach on defending their refusal to inform the public about their tax-paid activities as chronicled on the incident reports. They claim Rule 4.01 of the Uniform Criminal Rules of Circuit Court Practice prevents them from releasing the information. The rule reads:

"The defense counsel, prosecuting attorney, law enforcement officers, clerks, deputy clerks, and other officers of the court shall not release nor authorize release of any statements for dissemination by means of public communication any matter concerning:

1)The prior criminal record of the defendant or his character or
reputation
2)The existence or contents of any confession, admission or statement given by the defendant, or the refusal or failure of the defendant to make any statement.
3)The performance on any examinations or tests, or the defendant's refusal or failure to submit to an examination or test.
4)The identity, testimony or credibility of prospective witnesses.
5)The possibility of a plea of guilty to the offense charged or a lesser offense.
6)The defendant's guilt or innocence, or other matters relating to the merits of the case or the evidence in the case."

Leonard Van Slyke, a prominent Jackson media law attorney, said using Rule 4.01 to withhold incident reports is not a valid argument.

"There's nothing in there that applies to an incident report," he said. "It just frustrates the hell out of me the extent some people go to hide information from the public, the taxpayers."

VanSlyke explains when Rule 4.01 applies. "This (Rule 4.01) relates to once there has been an indictment and there is a criminal case in court," Van Slyke said. "The incident report is something that has been done at the arrest stage prior to any indictment. If you followed that line of reasoning they're using" in citing the court rule, Van Slyke said, "they'd never release an incident report, and clearly the attorney general has said incident reports are releasable."

The abuses in Lowndes County pale in comparison to the official government secrecy Jean Rester said she has encountered in several Mississippi counties. Rester is marketing manager of Jackson-based Mississippi Public Record, a privately owned company that gathers arrest and court records for attorneys and other fee-paying clients.

"We go to the jails and we get all the arrests out of the docket," she said. Jail dockets, by state statute, are public records that must be available for inspection. "We mainly are looking for felonies, DUI's, domestic violence and misdemeanor drug charges, false pretense, shoplifting, stuff like that."
In Adams County, "The sheriff says he does not want anybody looking at his docket book. He says that he doesn't have to let anybody look at it," Rester said. Sheriff William T. Farrell's refusal was delivered through a deputy sheriff, Rester said. "The sheriff wouldn't even talk to me."

In Attalah County, Sheriff Troy Steed "sent me a letter and told me I could see the docket," Rester said. "But when I go up there they (jailers) refuse to let me in the jail to see the docket."
In Hinds County, "They will let you go back and look at the(docket) book but that's it," Rester said. "They won't let you get any information off the computer" that contains the more-detailed booking reports. "Jones County, Yazoo County, they don't even want you in their jail," she said. "They just tell you, you know, it's not a public record.

Yazoo County Sheriff James T. Williams "told me that he just really didn't want anybody in his jail because it's a secure location," and similar reasoning was offered in Jones County. "Personally, it's public record," she said. "And this is my bread and butter, so they're hurting me financially by not letting me do it. It shows me that they're not abiding by the law and that makes you wonder what else are they doing."

Rester said she has attempted to get the state Attorney General's Office to intervene, but was told "you may have to do litigation" to gain access to the public records.

Public arrest records, it is obvious, are not so public in Mississippi. It is unlikely the situation will change unless news organizations or a citizen with deep pockets successfully challenges the systemic pattern of abuses by government officials who act more like secret police than public law enforcement agencies.

Way is managing editor of The Commercial Dispatch in Columbus, treasurer and past MCFOI president. Send e-mail to danway@cdispatch.com

For many years, Mississippi was only one of three states that had no televised court proceedings of any kind. That changed in recent months with the Mississippi Supreme Court decision to install cameras in its courtroom to televise arguments live over the Internet. The Court of Appeals quickly followed suit. Television stations can receive a feed for broadcast.

Now Chief Justice Edwin L. Pittman wants the Court to review the idea of allowing live camera coverage of trial court proceedings. He announced a study of camera coverage possibilities in a meeting with several members of the media at the Supreme Court on November 27, 2001.
The Supreme Court has the rule-making authority, but the Chief Justice made it clear that the trial judges would have considerable input before any change in the rule is made.

"In fairness, the Court should not just develop a rule for the trial courts, and we won't," Pittman said. "The trial judge has the extremely important role of managing that courtroom. It's much more difficult to open those courts to media view."

Shortly after announcing the study, the Chief Justice appointed a committee chaired by newly appointed Justice James Graves. Justice Graves served several years as Hinds County circuit judge before Gov. Ronnie Musgrove recently appointed him to the Supreme Court to fill the unexpired term of Justice Fred Banks who resigned to return to private law practice. Given his background, Justice Graves will have a full understanding of the issues facing the trial judge with camera coverage. He has also told this writer that the media will be given an opportunity to be heard on the matter.

Ironically, now Justice Graves was the trial judge who heard Associated Press, et.al. v. Bost, a 1990 case seeking the right to televise trials in Mississippi resulting from the high interest in the Byron de la Beckwith murder trial. Then Judge Graves ruled against the media because he determined that only the Supreme Court could change the camera rule, but he made it clear in his opinion that he personally favored camera coverage of trials.

It would appear likely that some change in camera coverage will result from this study. There have been no promises, but this Chief Justice is a proponent of the judiciary taking steps to improve the public's understanding of the judicial process. He has already shown that by opening the Supreme Court to cameras. There is no reason to believe that he will not push for cameras at the trial court level, while maintaining sensitivity to the concerns of the trial judges. A solution can and will be reached.

Leonard VanSlyke, a former reporter, is an attorney who has represented media entities for 20 years. He is a shareholder with Heidelberg & Woodliff, P.A. in Jackson and is listed in The Best Lawyers in America in the First Amendment area. He is the MCFOI hotline attorney and can be reached at (601) 968-8433.

Federal Court Access
S.986: The U. S. Senate Judiciary Committee approved a bill that would give federal judges presiding over federal trials and appeals courts the discretionary power to permit electronic recording and televising of court proceedings. If the bill becomes law, it would lapse after three years.

The Judicial Conference would have the responsibility to develop advisory guidelines to help judges determine how to manage and administer broadcast coverage of court proceedings.

One of the more troubling results of the September 11 terrorist acts has been an almost reflexive action by some government leaders to restrict civil liberties, including the public's access to their government and its actions.

In the first days after the disaster, Defense Secretary Donald Rumsfield spoke about stopping access by the media to Defense secrets by restricting access to Defense Department records and personnel. Media access to the military maneuvers in the war in Afghanistan before the Northern Alliance breakthroughs has been severely limited.

In November, at the request of Attorney General John Ashcroft, President Bush signed a presidential order providing for trial by secret military tribunal of civilian non-citizen terrorist suspects, as well as their indefinite imprisonment without charge.

The United States has a long history of restricting civil liberties during wartime or under threat of war, starting with the infamous Alien and Sedition Acts of 1798. Abraham Lincoln suspended habeas corpus [which the Supreme Court later declared unconstitutional] and made use of military tribunals during the Civil War; Franklin Roosevelt interned thousands of Japanese-Americans during World War II.

The need for people to feel secure and safe from imminent threat makes such actions seem reasonable to many people, a small thing to give up in order to catch and deal with a ruthless and dangerous enemy. The perspective of history makes it clear that sacrificing civil liberties for the feeling of safety is a dangerous thing. The starkest examples come from the countries behind the Iron Curtain where free speech and freedom of the press were sacrificed to the welfare of the State, resulting in the sacrifice of the welfare of the people.

In this country, the Palmer raids in the 1920s, which were supposed to root out terrorists and alien anarchists, ended up terrorizing everyday people without finding the perpetrators.

Flying in an airplane or driving a car is a privilege. Being free to travel across county and state lines is a precious right. So is the right to petition the government, freedom of assembly, habeas corpus, and the right to vote.

Open government and access to government information is an especially valuable right because if we do not know what our government is doing we lose the ability to control what it is doing. The government then becomes the tyrant of the people, the very reason our Founding Fathers chose to declare independence 225 years ago.

We who support open government must be watchdogs, not only of the First Amendment to the Constitution, but all the freedoms of the Bill of Rights. Taken together, they protect the individual from overreaching government and from the tyranny of the majority. They are a crucial part of the checks and balances that have made our system of government the envy of the world. Even in the name of protecting our welfare, we should not be willing to give up those basic rights that define who we are.

"State lawmakers are closing public records at an alarming pace, often without even a shrug from those with the most to lose - ordinary citizens. These are gloomy times for sunshine-law advocates. In state after state, lawmakers use privacy concerns as a blanket license to shutter records long thought to be safe from exemption. In Florida alone this year, lawmakers devised at least 134 bills to close access to documents."
--Joe Adams, Presstime, December 2001

In the current climate of terrorism, open government advocates and civil libertarians face a new challenge in 2002 to keep the current federal secrecy virus from spreading around the country as it did after World War II.

It is already clear that lawmakers and companies that do not want to disclose information on safety and health are citing security concerns as a reason to deny access to information previously public.

The Freedom of Information movement, in fact, was spawned by World War II federal national security controls that triggered a pattern of excessive secrecy that spread like wildfire to the state and local level as public officials took their cue from the federal government and closed off access to meetings and records.

When the federal government cited national security to prevent release of the exhaustive report on Vietnam War decisionmaking, however the U.S. Supreme Court rejected the claim and allowed the Pentagon Papers report to be published.

The security of the nation, the Court said in that 1971 case, lies in a free and independent press and an open society.

Since then great strides have been made in opening up government. Today, however, federal and state governments appear to be building another wall of secrecy. Open government advocates are alarmed that the freedom of information gains in the 20th Century are in danger of being reversed.
Other countries have observed this rush to judgment that tight control of information is necessitated by terrorism. "Around the world, a Washington Post editorial states, "media and governments are taking note of the efforts at control, and rightly or wrongly drawing the conclusion that the U.S. government is no longer as trustworthy, nor its press as free."

The Internet opened the portals to a vast amount of information generated by the federal and state governments. After September 11, however, government officials moved swiftly to slam those open doors shut, cutting off public access. Some examples of the many actions being taken that alarms open government advocates are discussed below.

That certain information must not be disclosed to protect security is not being questioned; the worry is about overreaction and the use of national security as an excuse to keep information secret the public needs to know.

Public interest groups monitoring environmental dangers and worker safety and health have been successful since the '70s in getting right-to-know laws enacted so the public can be informed about environmental dangers such as toxic wastes in local communities and worker safety at chemical and nuclear power plants.

But after 9/11 access to information on safety at chemical and nuclear power plants and toxic waste sites in local communities is being cut off in the government clampdown on access to information.

OMB Watch reports that hundreds of lives are lost in chemical accidents. Making safety plans and performance information available to the public reduces accidents; preventing release of studies on chemical and nuclear safety and emergency plans in the case of spills puts workers at risk.
Public interest groups such as OMB Watch and the Working Group on the Right to Know are concerned that companies that have long fought their efforts to alert the public to health and safety risks such as exposure at chemical plants and provide families information on toxic pollution in their area will now be able to block access to safety and health information.

Companies already have seized upon the current security fears to lobby Congress to close off information previously made public. Pipeline companies have initiated a lobbying campaign, for example, to remove legislative proposals supporting the community's right to know. The Office of Pipeline Safety removed a national pipeline mapping system from its website. Yet pipelines are very visibly marked for anyone to see. An environmentalist raises the question of how terrorists could use information on pipeline integrity plans, past performance reports, spill data and testing results that inform the public of dangers.

The American Water Works Association has engaged in an aggressive lobby campaign to cut off access to Offsite Consequence Analysis data through reading rooms. The Environmental Protection Agency has removed Risk Management Plans collected under the Clean Air Act related to hazardous chemical assessments, prevention of spills, leaks and explosions and emergency response.

Yet the FBI and Congress have acknowledged that this information does not pose an increased terrorism threat.

The Critical Infrastructure Information Act of 2001 (S.1456) has been introduced in Congress by Sen. Robert Bennett (R-UT) and Jon Kyl (R-AZ) as a bio-terrorism bill amendment.
The bill would repeal provisions of the Securities Exchange Act requiring disclosure of information about a company's safety compliance record. Public interest groups argue that the data is not sensitive, and companies just don't want the public to gain access to it.

Alarmed by the potential devastating effects on the regulatory process and federal law enforcement, various groups have signed a letter urging senators to oppose the amendment, citing these potential effects of the bill:
--Bar disclosure of information on spills, fires, explosions and other accidents without obtaining written consent from the company that had the accident.
--Give the manufacturing sector unprecedented immunity from the civil consequences of violating the nation's environmental, tax, fair trade, civil rights, labor, consumer protection, and health and safety laws.
--Sweep aside record-keeping and disclosure safety and risk management under federal laws for chemical companies, toxic waste disposal and nuclear power plants.

Summary of Actions to Control Information Access

A sampling of actions taken to curtail the release of information since 9/11 reported by the Freedom Forum and other sources include:

§ Federal Freedom of Information Act requests for documents previously granted now are likely to be denied since Attorney General Ashcroft issued a memo that assures agencies the Department of Justice will support denials. The prior Administration standard required establishing "substantial harm" to justify not releasing a document.

§ The Idaho Attorney General recommends 34 changes in Idaho laws that include authorizing the governor to exempt documents from public disclosure "when necessary for the security or safety of the state," allowing public officials to question people requesting public records (now prohibited), increasing response time for public records requests, providing potential power to governors office to close records by executive order.

§ Legislation is being prepared to exempt documents such as vulnerability assessments, response plans and inventories from the Washington public records law. Roland Thompson, executive director of Allied Daily Newspapers, said concerns about national security related to these documents are "groundless" and urges caution in making changes in the records law. Information withdrawn from Washington state websites include water resources, transporting radioactive materials and specifications for energy materials.

§ Requests for access to 150 crop duster licenses were denied Florida reporters by order of the Florida Department of Law Enforcement (FDLE) although there is no exemption in the Public Records Act covering these records, and the Florida Department of Motor Vehicles placed a temporary ban on access to driver's license records.

§ Florida legislators have discretion to close meetings of House and Senate committees on security issues, and Gov. Jeb Bush signed 11 security bills that include expanding wiretapping powers and curtailing access to public records.

§ In Iowa, legislative leaders propose requiring people entering the Capital building to obtain electronic access cards after a background check, which essentially denies access by members of the public.