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Mississippi open-government laws full of exemptions that allow secrecy

Put 10 Mississippi government officials or commission appointees in a room and it would be interesting to hear their answers to a quiz on what constitutes a "personnel matter," probably the most often invoked exception to state's open meetings act.

For instance, if a city council meets to set police department salaries, is that a proper subject for a closed session?

If a county board meets to write a new job description for a road manager, is that a personnel matter under the code?

The answer to both is no.

Section 25-41-7 (4)(a) of Mississippi law narrows the legal definition of personnel matter to "relating to the job performance, character, professional competence or physical or mental health of a person holding a specific position."

Attorney Katherine Kerby of Columbus has 25 years' experience providing counsel to dozens of government clients. She's also chairwoman of the Mississippi Bar's section on government law. Her own view is that Mississippi Open Meetings and Public Records acts are "simple and straightforward," yet she concedes "there are frequent problematic areas."

Indeed. A search of the Mississippi attorney general's Web site returns 100 opinions containing the words "personnel matter."

Sen. Hob Bryan, D-Amory, has earned a reputation for speaking his mind during his six terms at the state Capitol.

He says the Legislature, in the 1981 Open Meetings Act and the 1983 Public Records Act made it clear: "Open means open; public means public."

Yet enforcement of the act is up to citizens. Unlike when other laws are broken, there is no one, no agency to phone to take action on the public's behalf, and, almost annually, the Legislature has adopted more and more exceptions.

In 2006, for example, the Legislature passed a bill to authorize drug and alcohol testing by game agents after hunting accidents.

That was the title and stated purpose of the bill, but tucked in it was a provision that appeared to flatly exempt all hunting accident reports, which had always been public, from the Public Records Act.

A few years earlier in a bill dealing with funding for county emergency dispatch centers, the Legislature, with no discussion or debate, exempted all 911 records of any type - budget, payroll, log books, tapes - from disclosure. In a single act, the lawmakers made 911 centers more secretive than the CIA, KGB or the Mississippi Legislature itself.

"As a practical matter, that stuff's being passed without legislators being aware of it," Bryan said. "We're all chasing a lot of different things."

Few push back against the rising tide of exceptions, which are continually being sought by local governments, state agencies and niche groups, he conceded. There are bigger fish to fry, so to speak.

And more exceptions along with overbroad interpretations and confusing language have greatly eroded the purpose of openness legislation. It was created, the legislation itself says, on the premise that the authority to govern comes from the people and people can't consent if they don't know what's going on.

As for the hunting records exception, digging elsewhere in the code reveals there are stipulations that seem to conflict with blanket closure. Also, after realizing what it had done about 911 centers, the Legislature repealed almost all the records-sealing language for dispatch centers.

Even long-standing language can be problematic. For instance, on its face, the Public Records Act exempts "records of public bodies primarily engaged in the enforcement of criminal laws."

Delving into opinion letters and court rulings, it becomes clear that the exemption's purpose is to keep police from having to provide witnesses' statements or the names of suspects during investigations. It doesn't apply to payrolls or to arrest reports or, in the view or most, to basic crime.

But a sheriff who doesn't want the public to know about a series of burglaries occurring in a neighborhood could point to the exception and, unless pressed, probably keep a matter of public concern under wraps.

It should also be clear there's more in play here than laws, interpretations of statutory language and opinions, Kerby said.

For one thing, there is the training and experience of clerical and other public employees on how to answer inquiries, especially given turnover in some roles.

A fundamental tenet of the state and U.S. constitutions is that the state cannot incarcerate a person and keep it a secret.

Yet in a 2002 "openness" audit by several public interest groups in Mississippi, 12 volunteers asking for lists of people in their local jails were told that was not public information and another four were told that seeing the docket depended on who was asking. It may not be public information when a person is jailed in China. Here, it's one of the public's clearest rights to know.

As for members of boards and commissions who do receive training about how their public roles differ from a private sector job, Kerby said experience matters.

"Newly elected, first-time officeholders, like other new job folks, seem to shy from the media eye, and more experienced elected officials have learned what is open and what is not. The more experienced then the more surefooted in responding to media requests for information that may be interpreted in more than one way," Kerby said.

Counsel is important, too, she added.

"The board attorney's level of experience is a factor as well as the ability of the legal adviser to stay out of policy matters and politics and just stick to legal applications," she said.

And, as in everything else, though the law makes no distinction, a police chief, supervisor, mayor or alderman who doesn't like a particular person or media representative may erect barriers not intended by the code. That happens, Kerby said, "if either side views the other as a political adversary as opposed to just doing the job in a professional manner."

In Bryan's view, there's just so far the Legislature can go in carrying out its intentions. Even if controversy is sure to follow a discussion or a decision, bad feelings are more intense if people sense information is being hidden.

Those who try to keep public information secret are "probably being counterproductive in the long run," Bryan said.

There's a remedy citizens can seek to get records that are denied - by suing in court. But, there's little that can be done if boards and commissions close meetings to keep what should be public debates private.

"If a meeting is closed," Bryan said, "the situation is different. It's closed, goes forward and then how do you unscramble those eggs?"

The senator said he'll always welcome ideas of how to increase openness, and, in turn, accountability, because open government and accountable government is good government.

"I can only tell you that public meeting exceptions should be narrowly drawn," he said. "Anything we can do to make exceptions more clear, we should do. I'd certainly like to see ideas anyone has on how the legislation could change."

Both acts are "permissive." Any agency or official may open any meeting or disclose any record. Although other considerations may apply, nothing in the acts themselves requires the closure of any meeting or the concealment of any record.


Mississippi open records, open meetings laws

Here's a glance at two laws designed to ensure public access to government meetings and records:

Mississippi Open Meetings Act, Mississippi Code 25-41-1

Purpose statement in act: "Formation and determination of public policy is public business and shall be conducted as open meetings, except as otherwise provided herein."

Synopsis: All meetings except purely social gatherings of all groups who manage or spend public funds are open to public attendance unless specifically closed due to type of entity (hospital, military, parole) or one of 11 specific subject areas. Meetings must begin in open session and, if closed, the reason must be detailed. Only the discussion is private. Minutes must be kept and actions must be recorded.

Most used exceptions: Personnel; prospective or pending litigation; prospective purchase, sale or leasing of property; location, relocation or expansion of a business or industry.

Remedy for abuse: People suing for a court to declare a meeting was illegally closed may recover a token fine and, in limited cases, attorney's fees.

Mississippi Public Records Act, Mississippi Code 25-61-1

Purpose statement in act: "It is the policy of this state that public records shall be available for inspection by any person unless otherwise provided by this chapter."

Synopsis: All records developed and kept in the course of governance, including e-mails, digital files, audio and video, are to be open to public inspection and copying.

Most used exceptions: Records of public bodies primarily engaged in law enforcement; records of the Mississippi Development Authority containing client information about development projects; Certain records compiled in coroners' investigations.

Remedy for abuse: After receiving a written denial of a request submitted in writing, people may sue in court, may recover a fine less than $100 plus reasonable court costs, including attorney's fees.

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