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Challenging government secrecy can put hole in people's pocketbooks

If someone steals your car in Mississippi, you call the police. If someone defrauds you, you call the attorney general.

But if someone denies you access to public records, no taxpayer-funded agency will help you. Instead, you hire an attorney.

In Mississippi, a state with a long history of government secrecy, it can be difficult, expensive, time consumingand sometimes an all but impossibleto know what government leaders are up to and what special interests pull their strings.

That's because enforcement of the state's Public Records Act and Open Meetings Act falls not on the shoulders of the state, but on those of the public itself.

"Who makes sure what is public is public?" asks Tom Wicker, media lawyer and attorney for the Northeast Mississippi Daily Journal. "The public does."

The problem, adds First Amendment specialist and Jackson-based attorney Leonard Van Slyke, is that Mississippi has very little enforcement of its own public-access laws.

"Essentially," he said, "if the public body denies your request, you're forced to go to court to get relief. There is no ombudsman or no ability to get the district attorney or the attorney general to enforce it."

That's what Pass Christian resident Tut Kinney discovered several years ago. He and his neighbors were denied access to information about Harrison County's plans to locate a huge rock and gravel distribution plant near their homes.

When Kinney, a lawyer, felt the Harrison County Development Commission was wrongly withholding the information, he sued the agency.

Eventually, he won. But it wasn't easy. It cost Kinney thousands of dollars and untold hours of work over five years. The development commission even filed a lawsuit against Kinney after he requested public records, some of which, it came out in court, the agency shredded after his request.

Such cases illustrate why Mississippi ranks near the bottom in recent independent surveys about openness in government.

On the surface, Mississippi's campaign-finance, ethics, Public Records and Open Meetings rules appear solid. But in practice, they are almost never enforced. Even if they are, the penalties are mild: The maximum fine a judge can impose is $100, plus all reasonable expenses incurred by those who brought the suit. But there's no guarantee the judge will do that. In fact, it's unlikely, experts said.

"I've never seen a fine imposed in any (open meetings/records) cases I've had," said longtime media lawyer Henry Laird, attorney for the Sun Herald. "I've had probably two or three dozen cases."

And Mississippi's open-government laws carry a caveat that makes it even tougher for citizens to prevail in court: They must, in most instances, prove a public official "willfully, knowingly and substantially" denied them access to information or proceedings.

"You rarely see individuals who can take that risk," Van Slyke said.

Kinney, of course, did. But despite his victory, including the reimbursement of about $20,000 in legal costs, the ordeal didn't leave him impressed with Mississippi open government laws or their enforcement.

"If enforcement of these laws means you have to go hire a lawyer, then that's an impediment to the process," Kinney said. "A $100 fine is a joke, and they need to punish the agency heads, not the agency. My case cost the Development Commission $20,000. But it didn't cost (the director of the agency) 10 cents. He wasn't facing a fine, or loss of any of his money for not giving me records I was entitled to. It cost the citizens $20,000 for his actions. He just figured he would use the county's money to play the game. They shredded records rather than give them to me.

"Penalize the person not giving you the information, and provide for a fine of a substantial amount of money for a violation. Those records belong to the person who is asking for them, not to the government official who's holding them."

While some agencies, including the attorney general's office and local district attorneys, potentially could investigate and prosecute violations of open government laws, no one is specifically assigned the job.

As opposed to some other states, the laws in Mississippi give no statutory authority to the attorney general's office to file cases or assess penalties to violators of the open records and open meetings acts, said Mike Lanford, deputy state attorney general.

"If they funded us for four or five attorneys and set us up with an office, we could take every complaint from an individual who turns one in," Lanford said. "But I don't think we'd be authorized to represent an individual in a private lawsuit such as that."

Lanford did acknowledge the state has a weak enforcement provision and said he believes the public needs a better remedy than what currently is in place.

But his office does what it can to enlighten public officials about their responsibilities. Lanford said before the newly elected chancery and circuit clerks took office in January, he talked to them about the sunshine laws.

"I tell them it's real easy to comply with the Public Records law because you've only got to remember one thing: Everything is a public record, and you have to give it to them unless there is an exemption," Lanford said.

But not all comply. Some withhold information outright, Wicker said. Others charge outrageous "processing" fees or claim the data isn't in an inaccessible format. Both, he said, are unlawful.

When those infractions are legally challenged, it's typically the media challenging them, Van Slyke said. Very rarely do people like Kinney take a public official or a public body to court.

And that's a shame, Van Slyke continued, because the only way things will change is if the average citizen gets involved.

"The public seems to be pretty complacent until it impacts that individual," he said. "If something happens in that individual's neighborhood and he wants to go to a meeting and he can't, then he becomes very concerned about the law."

Van Slyke urges citizens to lobby their legislators for change and asked the media to step up its own fight. Only with grass-roots pressure, he said, will lawmakers strengthen the laws and bolster enforcement.


A glance at states' penalties for violation government openness

Here's a glance at most states' penalties for violating open records or open meetings laws:

MISSISSIPPI

Fine: Up to $100; seldom imposed.

Other penalties: None.

ALABAMA

Fine: None (fine was repealed in 1980).

Other penalties: None.

ARKANSAS

Fine: Up to $100.

Other penalties: Misdemeanor criminal violation; up to 30 days in jail.

CALIFORNIA

Fine: None in main records law, but some other statutes can apply. For instance, post-secondary educational institutions failing to disclose records of certain crimes face up to $1,000.

Other penalties: None.

COLORADO

Fine: Up to $100.

Other penalties: Up to 90 days in jail.

CONNECTICUT

Fine: Not specified.

Other penalties: Various court remedies.

DISTRICT OF COLUMBIA

Fine: Up to $100; individual employees responsible for compliance.

Other penalties: Misdemeanor criminal violation; jail time not addressed.

FLORIDA

Fine: Any public officer violating can be fined up to $500, or up to $1,000 for "willing and knowing" infraction.

Other penalties: Punishable as first-degree misdemeanor by up to one year imprisonment.

GEORGIA

Fine: Up to $100.

Other penalties: Misdemeanor conviction; elected officials also subject to recall for violation of Open Records Act.

HAWAII

Fine: Office of Information Practice can recommend appropriate penalties; other statutes governing particular records impose various fines.

Other penalties: Court precedent to award attorney fees to complainant.

IDAHO

Fine: Up to $1,000.

Other penalties: None specified.

ILLINOIS

Fine: No provision in statute, but court can levy through general contempt powers.

Other penalties: Same as above.

INDIANA

Fine: Not authorized by statute.

Other penalties: None.

IOWA

Fine: None.

Other penalties: Simple misdemeanor conviction.

KANSAS

Fine: Fines are not allowable.

Other penalties: On an action by a prosecuting authority, a penalty of up to $500.

KENTUCKY

Fine: $25 a day for each day the person was denied right.

Other penalties: Costs and attorney fees for willful violations; class A misdemeanor conviction; any official or agency refusing to supply record after final judgment directing them to be released shall be guilty of contempt.

LOUISIANA

Fine: Not less than $100 nor more than $1,000 for first conviction; $250 to $2,000 subsequent convictions.

Other penalties: One month to six months in prison possible for first offense; two months to six months for subsequent.

MAINE

Fine: May only be recovered by attorney general or district attorney.

Other penalties: None.

MASSACHUSETTS

Fine: None.

Other penalties: None.

MARYLAND

Fine: Up to $1,000.

Other penalties: Misdemeanor conviction; upon finding that custodian wrongly withheld records, appointing authority is required to take disciplinary action.

MICHIGAN

Fine: If circuit court finds records wrongfully withheld, court will award, in addition to actual or compensatory damages, punitive damages in amount of $500 to person seeking records.

Other penalties: Not specified.

MINNESOTA

Fine: Up to $300.

Other penalties: Misdemeanor conviction; constitutes just cause of suspension without pay or dismissal of the public employee.

MISSOURI

Fine: Up to $5,000 if Sunshine Law was "purposefully" violated; up to $1,000 if law was "knowingly" violated.

Other penalties: Court may void action taken by government body; injunctive relief to preclude future violations of the Sunshine Law.

MONTANA

Fine: None.

Other penalties: None.

NORTH CAROLINA

Fine: None.

Other penalties: None.

NORTH DAKOTA

Fine: No special rules relating to fines.

Other penalties: Not addressed.

NEBRASKA

Fine: Up to $500.

Other penalties: Class III misdemeanor conviction; official subject to removal or impeachment.

NEW HAMPSHIRE

Fine: Not authorized.

Other penalties: No provision for collecting damages on basis of violation.

NEW JERSEY

Fine: $1,000 for first violation; $2,500 for second within 10 years; $5,000 for third violation within 10 years.

Other penalties: No provision for other penalty.

NEW MEXICO

Fine: Up to $100 a day for each day in violation.

Other penalties: Damages are available.

NEVADA

Fine: None.

Other penalties: Other damages unlikely because act provides immunity for public officer who acts in good faith in refusing public records.

NEW YORK

Fine: No statutory provision for fines, but courts have set precedent of imposing fines.

Other penalties: Official who willfully conceals or destroys records guilty of violating state law.

OHIO

Fine: Fines not authorized.

Other penalties: Courts not authorized to impose penalties.

OKLAHOMA

Fine: Up to $500.

Other penalties: Up to one year in county jail.

OREGON

Fine: None.

Other penalties: None, except contempt of court if court order not obeyed.

PENNSYLVANIA

Fine: Does not prohibit court from imposing penalties and costs.

Other penalties: civil penalties up to $300 a day against agency or official "who does not promptly comply with a court order"; criminal liability of up to $300 plus costs of prosecution; other provisions allow for penalties for failure to disclose.

RHODE ISLAND

Fine: Up to $1,000.

Other penalties: Court costs waived if public body found in the wrong.

SOUTH CAROLINA

Fine: Fines are allowed for conviction, but there has not been prosecution under the act since it was created in 1974.

Other penalties: None.

TENNESSEE

Fine: No provision for fines.

Other penalties: If a custodian fails to obey court order to release records, agency and custodian might be fined for contempt of court.

TEXAS

Fine: Up to $1,000.

Other penalties: Up to six months in jail.

UTAH

Fine: Up to $1,000.

Other penalties: Misdemeanor conviction; up to six months imprisonment.

VIRGINIA

Fine: Not less than $250, not more than $1,000 charged to the individual committing the first offense; not less than $1,000 nor more than $2,500 for second.

Other penalties: Courts have granted other sanctions.

VERMONT

Fine: None specified.

Other penalties: Payment of legal fees and costs; applicable department must promptly hold proceedings to see if disciplinary action is warranted.

WISCONSIN

Fine: Up to $1,000.

Other penalties: Punitive damages may be awarded to requester.

WEST VIRGINIA

Fine: Not less than $200, not more than $1,000.

Other penalties: Imprisonment for not more than 20 days in lieu of or in addition to a fine; punishment for contempt of court.

WYOMING

Fine: Up to $750.

Other penalties: None.

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