Federal judge orders release of DMR records

jphampton@sunherald.comDecember 20, 2013 

GULFPORT -- A federal judge on Friday ordered the release of documents sought by the Sun Herald for more than a year in its investigation of the Department of Marine Resources.

District Judge Keith Starrett gave the U.S. Attorney's Office 10 days to turn over the records.

"I'm very happy with the decision and Judge Starrett's basis for the decision," said Sun Herald attorney Henry Laird. "It now returns the case where it should be, which is the Chancery Court in Harrison County. It's a great decision in favor of freedom of expression and freedom of speech because the people of Mississippi are going to be able to look at their records."

A grand jury in November indicted Bill Walker, the former executive director of the agency; Walker's son Scott; Joe Zeigler, the former DMR chief of staff; Tina Shumate, the former DMR coastal resource management and planning director; and Michael Janus, former city manager of D'Iberville.

Just days before the in

dictments, state Chancery Judge Jennifer Schloegel ordered the State Auditor's Office to return the records to DMR and ordered the DMR to comply with the records request by the paper. Sun Herald reporters first asked for the records in the fall of 2012 with a formal request to the agency. That request was denied, citing the ongoing investigation of the agency by state and federal officials.

In January, the Sun Herald sued the DMR seeking the records. It later added State Auditor Stacey Pickering to the suit after DMR attorneys said the records were in the custody of the Auditor's Office. After Schloegel ruled that the records were public and should be given to the Sun Herald, the federal prosecutor's office subpoenaed the truckload of documents and they were sent to Jackson in the middle of the night, a move that did not sit well with the chancery judge.

Federal prosecutors then argued the records couldn't be disclosed because they were part of the grand jury proceedings.

Starrett saw the matter differently.

"The United States represents that these documents are part of an ongoing grand jury investigation," Starrett wrote in his order. "But the record contains no indication that they were presented to the grand jury before the indictments were issued Nov. 5, 2013.

"Furthermore, the United States conspicuously failed to represent that the documents would be presented to the grand jury at some point in the future. The government's position appears to be that the DMR records are part of a grand jury proceeding because they were obtained by a grand jury subpoena, without regard for their actual role, if any, in the grand jury proceeding."

He also said the government admitted in its brief that the rule against disclosing "a matter occurring before the grand jury" does not apply to "material obtained or created independently of the grand jury as long as the disclosure of such material does not reveal what transpired before or at the direction of the grand jury."

He found the records could not reveal what transpired before the grand jury because there was no evidence they had been presented to the grand jury. The records, he wrote, "are public records created by the DMR and obtained by the state auditor independent of the grand jury proceedings."

Starrett found that if he didn't permit Pickering to disclose the DMR records, he could be held in contempt of court by Schloegel. And, he said, keeping the records secret would essentially nullify the authority of the Chancery Court and the Legislature, which passed the Public Records Act.

The Sun Herald is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service