Judge: State auditor must provide DMR records to Sun Herald, public

calee@sunherald.comOctober 31, 2013 

BAY ST. LOUIS -- Mississippi Department of Marine Resources records belong to the public and must be provided to the Sun Herald for inspection, Chancery Judge Jennifer Schloegel ruled Thursday afternoon.

The State Auditor's Office has argued since January the records became exempt from the state Public Records Act after the agency seized them for an ongoing criminal investigation involving the DMR. The DMR said it was unable to give the newspaper the records because the auditor's office had them.

After a daylong hearing Wednesday, Schloegel reviewed federal and state public records laws, and cases based on those laws, to find relocating records to a law enforcement agency does not mean they become investigative reports exempt from public disclosure.

"I would find that they are public records and that they do not meet the exemption of an investigative report," she said, "… and therefore, they should be released to the public."

Records can be denied to the public under the criminal investigations exemption, she found, when they reveal a law enforcement agency's confidential informants, investigative techniques and procedures, or undercover operations. Investigative reports that law enforcement agencies compile about records they seize also can be exempt from public disclosure, she said.

"We do not have any reports prepared by the auditor's office," Schloegel said. "We have the Department of Marine Resources records that have been used in the regular course of business …. They certainly were not compiled by DMR for a law enforcement purpose."

The Sun Herald filed requests with the DMR on Nov. 14, 2012, and Dec. 27, 2012, for financial records associated with the agency's Emergency Disaster Relief and Artificial Reef programs.

The Sun Herald was reporting on questionable management at the DMR under then-Executive Director Bill Walker at the same time the auditor's office and FBI were investigating the agency. Walker was fired in January. He has denied any wrongdoing. So far, no indictments have resulted from the state and federal investigations.

Using language similar or almost identical to the wording in the newspaper's written records request, the State Auditor's Office in early January subpoenaed the records and took them. Schloegel said she considered the timing and similar language in the subpoena in making her ruling.

After the Sun Herald filed its records lawsuit, the DMR gave the newspaper 22,000 pages of records the agency had on computer, but said the auditor's office took the only copies of other records.

On Thursday, Schloegel concluded the DMR did

not violate the state Public Records Act because the agency was unable to comply with the Sun Herald's request.

The Sun Herald's attorney, Henry Laird, said the auditor's office should have copied the records and left the originals with the DMR. The Sun Herald has always maintained the documents are public records because the DMR generated them in the course of doing business, not as part of an investigation.

Schloegel ordered the auditor's office to bring the records to court Thursday so she could inspect them, thinking they were in three boxes. Instead, 38 boxes of records arrived in a moving van. The records the Sun Herald requested would fill an estimated three boxes, DMR attorney Joe Runnels said, but they were actually spread throughout 38 boxes of records the auditor took.

Instead of looking through the records, Schloegel determined by questioning the state agencies' lawyers that the auditor's office had kept them in the same order they were in when seized.

After Schloegel's ruling, State Auditor Stacy Pickering said: "The court has spoken and we will move forward. We are committed to protecting the taxpayers of Mississippi and we will continue to do that as the investigation at the Department of Marine Resources is brought to a conclusion."

The Sun Herald should be able to review the records after an order is entered in the case. Schloegel told the auditor's office to return the records to the DMR. She said both agencies and the newspaper should work out details for the records to be inspected.

"The Sun Herald is pleased with the court's decision to return the public's records to the people of Mississippi," Executive Editor Stan Tiner said. "It is regrettable that it was necessary to engage in such a lengthy fight to obtain public records that were generated in the normal conduct of business at the DMR.

"It is also good to see the state auditor's statement that he is ready to 'move forward' and we anticipate the day that the records are produced so that they may be examined by the public, and by reporters at the Sun Herald."

Karen Nelson, Sun Herald staff writer, contributed to this report.

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