Federal subpoena of DMR records thwarts Sun Herald's court-ordered access

calee@sunherald.comNovember 5, 2013 

BILOXI -- The Sun Herald prevailed in a public records dispute with the State Auditor's Office, but Chancery Court Judge Jennifer Schloegel must decide what to do now that the state agency has failed to follow her order for turning over the records.

Schloegel could issue a ruling Wednesday.

At the end of a two-day hearing last week, Schloegel ordered the auditor's office to return the DMR records to the agency's Biloxi office so they could be copied for public inspection by the newspaper.

Instead, state auditor's attorney Melissa Patterson informed Schloegel after business hours Monday that the U.S. Attorney's Office subpoenaed the same records to be in Jackson on Tuesday morning.

Schloegel then issued an order at 11:30 p.m. Monday to seize the records so they could be marked and copied under court supervision before delivery to the U.S. Attorney's Office. She ordered the auditor's office to deliver the records to her Biloxi courtroom by 9 a.m. Tuesday.

"The court finds this precaution is in the best interest of the public in order to maintain the integrity of the documents," her order said.

However, the auditor's office did not send a representative or the records to her Biloxi courtroom Tuesday morning.

The Sun Herald had filed a lawsuit in January to gain access to records from the DMR's artificial reef and emergency disaster relief programs. The DMR said it could not comply with the request because the auditor's office seized the records without making copies.

Auditor Stacey Pickering maintained the records were secret because they were part of an investigation into DMR operations under former Executive Director Bill Walker, who was fired in January.

The Federal Bureau of Investigation and U.S. Attorney's Office are investigating Walker as well.

Schloegel, who ordered the records brought to court last week, ruled they were public records created in the course of the DMR's daily business -- not investigative reports exempt from disclosure under the state's Public Records Act.

She ordered the auditor's office to copy the records and return the originals to the DMR so the agency could comply with the Public Records Act by making them available to the newspaper.

All parties told Schloegel they would work together to comply with her orders. The records were parked outside the Bay St. Louis courthouse, where Schloegel held court last week, in a UHaul truck. They were supposed to be returned to the DMR's offices in Biloxi for copying and inspection.

The newspaper appeared to be on course Monday to review the records this week at the DMR until the auditor's office sent the message about the federal subpoena.

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