"It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business... " - From Section 25-41-1 of the Mississippi Code.
And so, that sounds like citizens should be able to be see and hear pretty much everything there is to know about public business, doesn't it? Well, that's not the way it is in practice. Indeed, there's a lot the taxpayers are not allowed to know and there's more that the law says they should know, but the average citizen can't afford to "fight City Hall" as the system now requires a court fight to enforce the law.
Let's be clear. The Supreme Court and most trial courts in the state have been steadfast in enforcing the law as written. The problem is not the courts. It also should be said that many public officials do their best to follow a course of openness. Unfortunately, some others do not. The real problem has been the Legislature's unwillingness to provide the appropriate mechanisms, procedures and enforcement measures to make state and local government truly open.
The laws which govern openness in Mississippi are known as The Open Meetings Act and The Public Records Act. Together, they are frequently referred to as the "Sunshine Laws" or Freedom of Information laws. The Associated Press and newspapers in Mississippi have run a series of stories in the past week pointing out some of the flaws in our current laws. The purpose of this opinion piece is to make specific suggestions for making those laws better. Here goes:
Law Enforcement Records: The single greatest weakness in the law relates to law enforcement records. Did you know that you currently don't even have a right, as many in law enforcement interpret the Public Records Law, to even know that a crime has been committed in your neighborhood? We are not talking here about law enforcement's ability to withhold delicate investigative material while investigating a crime, but rather that the crime even occurred.
How do we fix this? First, the general section allowing any law enforcement record to be withheld must be repealed while leaving in place what is known as the "investigative exemption" which protects such specific things as confidential sources which, if publicly known, might compromise an investigation. Next, a specific law must be passed asserting the public's absolute right to know the basics about a criminal incident: What occurred, where it occurred, names of persons arrested and the like.
And, another specific statute must be passed allowing the public access to a criminal investigative file once the investigation has been closed. There's a recent example of investigative authorities attempting to withhold a file from a victim's parents even though the victim and the alleged killer were both deceased.
Ombudsman: Another great weakness of our "Sunshine Laws" is the inability of a citizen to get relief from a recalcitrant public body short of going to court, even if the public body is clearly violating the law. Bringing cases in court is expensive. The current law only allows a judge to cause a public body to pay a citizen's legal fees if the body "knowingly and willfully" violated the law. If you are John Q. Citizen, are you willing to take the chance that a judge will find that the public body "knowingly and willfully" violated the law before you can even get what you spent on the lawsuit back? Not likely.
The Legislature should create an FOI ombudsman. If an individual or corporate representative seeking records or access to a meeting receives a denial from the public body, he could appeal to an ombudsman who could then direct the public body to provide the records or access to the meeting. Should the public body still resist, the individual seeking access would automatically be entitled to a reimbursement of expenses provided the court found in the requester's favor.
Enforcement: Current $100 fines are a joke. Indeed, one public official was quoted as saying it was a small price to pay to holding a meeting without the press being present. Of course, that really means excluding the public as the press is nothing more than a surrogate for members of the public. These fines should be substantially increased. Additionally, actions taken in an executive session held in violation of the Open Meetings Act should be void.
Executive session votes: A public body would be required to announce the vote by individual member of any vote taken in executive session immediately upon returning to open session. Some public bodies currently take the position that the vote need not be announced until the minutes are published which can be up to 30 days later.
Records response time: Current law allows up to 14 working days, which is almost three weeks and far longer than other states. This should be cut to three working days with a possible extension for good cause shown with total time allowed for response not to exceed seven working days.
Sequential meetings: Some public bodies are attempting to avoid application of the Open Meetings Act by holding a series of meetings among members, no one of the meetings having a quorum present. This is a blatant effort to circumvent the law and should be specifically prohibited by legislation although Supreme Court case law already appears to prohibit this type activity.
Quasi-public entities: Some examples are university athletic foundations, university foundations, community development foundations and the like. These bodies frequently take the position that even though they are serving a function a public body would otherwise be required to perform, they are exempt from "Sunshine Laws" since they are privately incorporated.
One obvious abuse of the "Sunshine Laws" is salary supplements of university coaches, which are frequently paid through these organizations. Under their interpretation of current law, taxpayers are not entitled to know the amounts of these supplements or the names of the donors who are paying these public salaries. Legislation should be enacted specifically making these organizations subject to the "Sunshine Laws."
This is by no means an exhaustive list of changes needed in our Open Meetings and Public Records Laws; however, measures correcting these shortcomings would go a long way to addressing true openness in government. After all, it is the taxpayers' business. I urge the Legislature to move forward with such corrections in this session, and I hope you will join me in seeking more open government.