A QUICK SYNOPSIS OF THE ACT
Mississippi Public Records Act
MCA § 25-61-1 et seq.
1. What entities are covered?
Every "public body," which includes
any department, bureau, division or agency of the state or a
political subdivision thereof, and any municipal corporation
and any other entity created by the Constitution or by law, executive
order, ordinance or resolution. Records of appointed and elected
official are covered. That State Legislature is not.
2. What documents are covered?
Any documentary materials, regardless of physical form or characteristics,
used in conducting business of any public body or required to be
maintained by any public body.
3. What records are exempt from the Act?
a. records developed by judges or their aides;
b. records developed by juries;
c. personnel records and employment applications;
d. employment examination questions and answers;
e. letters of recommendation for employment by public body;
f. work product of any attorney representing a public body, related
to actual or prospective litigation;
g. individual tax records;
h. appraisal information concerning the sale or purchase of real
or personal property for public purposes;
i. future academic examination questions and answers;
j. archaeological data maintained by the Mississippi Department
of Archives and History;
k. records maintained by public hospitals except the official
minutes of the board of trustees and financial reports filed as
required by statute;
l. records of the State Bureau of Vital Statistics of the Mississippi
Department of Health, which are of no legitimate and tangible interest
to the requester;
m. records of the Department of Economic Development containing
client information about development projects;
n. records of public bodies primarily engaged in the enforcement
of criminal laws. (NOT EXEMPT: Records consisting only of identifying
data and notations of arrest, the nature and disposition of criminal
charges, sentencing, confinement, release, and parole and probation
o. licensure applications;
p. recommendations in the possession of any state board which
is authorized to hold examinations and grant licenses or certificates
to practice any profession, respecting application of a professional
q. future licensing test questions;
r. commercial and financial information of a proprietary nature
required to be submitted to a public body, except for information
submitted to a regulatory agency by a public utility that is related
to the establishment of or changes in rates regulated by the public
s. noncontroverted case medical reports of the Mississippi Workers'
t. certain records compiled in coroners' investigations;
u. names of people who have gotten, or been denied, concealed
weapons permits, for 45 days after issuance or denial of such permits;
v. any records specifically declared by another statute to be
confidential or privileged (e.g. 911, gaming data).
Exemptions are permissive. The exemptions are not mandatory, and
release is discretionary with public official.
4. If the agency does have guidelines, the agency can take up to 7 working days to respond to a request.
Requester should submit a written request for public records,
specifically outlining the records that are being requested, and
the desired format (e.g., paper or computer disk). If the agency
has no written guidelines on complying with the law, the request
must be honored in one working day. If the agency does have guidelines,
the agency can take up to 14 working days to respond to a request.
If the agency denies all or part of the request, it must explain
the denial in writing. Exempt portions of records must be redacted,
with non-exempt portions released.
A public body may charge reasonable costs
for the actual cost of searching, reviewing, duplicating and,
if needed, mailing the records. In no case can the cost be more
than "actual cost." The
decision to charge for public records is discretionary.
If a public body refuses to release records, the requester first should make informal attempts to resolve differences. Before instituting a lawsuit to compel a public body to produce public records, the person denied the right to inspect or copy public records may first request an opinion of the Ethics Commission as to whether the public body is obligated to produce the records requested. The person must attach to the request for opinion a copy of the written denial of the records request, if any. If those attempts fail, suit may be filed in the chancery court of the county where the public body is located. The court can provide injunctive relief or writs of mandamus, as well as impose a civil fine not to exceed $100. A prevailing party can be reimbursed for reasonable costs of bringing suit.
Back to the top
A More Detailed Analysis of the Act
I. STATUTE - BASIC APPLICATION.
A. Who can request records?
1. Status of requestor. "Any person" may request records
under the Act. § 25-61-5; Op. Att'y Gen. Aug. 1, 1984 to Earline
2. Purpose of request. The requester's purpose
does not affect the requester's right to receive records, except
with respect to certain exemptions. See e.g. § 41-57-2 (Rev. 1993) (Department of Health,
Bureau of Vital Statistics records limited to those with a "legitimate
and tangible interest").
3. Use of records. The Act does not restrict the requester's use
of the information provided.
B. Whose records are and are not subject to the act?
1. Executive branch.
a. Records of a "public body" are covered. This does not
include appointed or elected public officials or their employees.
See Op. Att'y Gen. May 15, 1984 to Benjamin E. Griffith construing § 25-61-3(a)
b. The function of the executive officer is
not relevant, except insofar as it is covered by a particular exemption,
such as attorney work product, § 25-1-102 (Rev. 1991), or personnel, § 25-1-100
2. Legislative bodies. Legislative records
are covered by the Act, but an ambiguous section retains for the
legislature "the right
to determine the rules of its own proceedings and to regulate public
access to its records." § 25-61-17.
3. Courts. Courts are covered, but statutes
exempt records developed among judges and among judges and their
aides, § 9-1-38 (Rev.
1991), and among juries concerning judicial decisions, § 13-5-97
4. Nongovernmental bodies receiving public
funds or benefits. These are not covered. Coverage is restricted
to an "entity created
by the Constitution, or by law, executive order, ordinance or resolution." § 25-61-3(a)
5. Nongovernmental groups whose members include
governmental officials. These are not covered, see § 25-61-3(a) (Supp. 1996). Records
officials use in the performance of business for a public body are,
however, covered. § 25-61-3(b) (Supp. 1996).
6. Multistate or regional bodies. These would
be covered if "created
by the Constitution or by law, executive order, ordinance or resolution." § 25-61-3(a)
7. Advisory boards and commissions, quasi-governmental
entities. These are covered if "created by the Constitution or by law,
executive order, ordinance or resolution." § 25-61-3(a)
8. Others. None.
C. What records are and are not subject to the Act?
1. Records are covered if they are used, or
have been used or are "prepared,
possessed or retained for use in the conduct, transaction or performance
of any business, transaction, work, duty or function of any public
body" or are "required to be maintained by any public body." § 25-61-3(b)
2. Records are covered "regardless of physical form or characteristics." § 25-61-3(b)
(Supp. 1996). Computerized voter registration lists and applications
for registration are "records." Op. Att'y Gen. Jan. 16,
1990 to Dick Molpus. The 1996 legislation, codified as § 25-61-10(a)
(Supp. 1996), gives requesters the right to choose the format in
which they want the records, and so overrules. Op. Att'y Gen. April
17, 1991 to W.L. Lee. The requester's rights are qualified only by
the agency's right to charge a reasonable fee.
3. The requester has a right not only to "inspect," but
also to "copy or mechanically reproduce or obtain a reproduction
of any public record of a public body." § 25-61-5(1).
D. Fee Provisions or Practices.
1. Levels or limitations on fees. Fees must
calculated to reimburse [the public body] for, and in no case to
exceed, the actual cost of searching, reviewing and/or duplicating
and, if applicable, mailing." § 25-61-7. An agency may
not charge more than "actual cost," Roberts v. Miss. Rep.
Party State Exec. Comm., 465 So. 2d 1050, 1054 (Miss. 1985). This
was held to apply even when a city conducted expensive aerial photography
and mapping of local areas. See Op. Att'y. Gen. Oct. 5, 1994 to Gerald
2. Particular fee specifications or provisions.
a. Search. There are no particular fee specifications
in the statute. Each agency may, however have "reasonable written procedures" concerning
its charges. § 25-61-5(1).
b. Duplication. There are no particular fee
specifications in the statute. Each agency may, however have "reasonable written procedures" concerning
its charges. § 25-61-5(1).
3. Provisions for fee waivers. There is no
statutory provision for fee waivers. The statute says the public
body "may" collect
fees, implying discretion. § 25-61-7.
4. Requirements or prohibitions regarding advance
payment. The statute says fees "shall be collected by the public body in advance
of complying with the request." § 25-61-7.
5. Have agencies imposed prohibitive fees to
discourage requesters? Most agency regulations have adopted reasonable
fee provisions. The Office of the State Auditor charges $.10 per
page for copying and $5 an hour after the first hour for records
searches. By contrast, the State Department of Education charges
$.25 per page and, if the search takes more than 15 minutes, an
hourly search fee.
Back to the top
II. EXEMPTIONS AND OTHER LEGAL LIMITATIONS.
A. Exemptions in the Public Records Act.
1. Character of exemptions.
a. The exemptions are specific, except for
a catchall exemption for records specifically declared to be confidential
or privileged by any constitutional or statutory law or a decision
of a state or federal court of the state. § 25-61-11. Records declared "confidential" by
a public body are not made confidential by the declaration but must
be statutorily exempted from disclosure. Op. Att'y. Gen. August 18,
1998 to Honorable Ken Stribling.
b. Most exemptions are discretionary. They do not require that the
records be kept confidential. They are not grounds for resisting
a court subpoena. United States v. Dale, 155 F.R.D. 149, 152 (S.D.
Miss. 1994). Statutory exclusions listed in II.B., infra, however,
c. The exemptions are not directly patterned on the federal exemptions.
d. There is no exemption for records concerning pre-decisional and
deliberative matters. Op. Att'y Gen. Oct. 16, 1989 to William Bruce
2. Discussion of each exemption.
a. Documents subpoenaed by the Attorney General
under his authority to investigate white collar and official crime. § 7-5-59(6)
b. Records developed among judges and their
aides. § 9-1-38
c. Records developed among juries concerning
judicial decisions. § 13-5-97
d. Personnel records and applications for employment
except those which may be released to the applicant or with the
prior written consent of the applicant. § 25-1-100(1) (Supp. 1996). This does
not exempt the names of persons employed and the compensation paid
to such person. Op. Att'y Gen. June 5, 1984 to Bennie G. Thompson.
Nor does the exemption for personnel records apply to public employees'
accrued compensation time information. Information regarding gross
salary and accrued leave are subject to disclosure. Mississippi Department
of Wildlife, Fisheries and Parks v. Mississippi Wildlife Enforcement
Officers' Ass'n, Inc., 1999 WL 47779, *10 (Miss. 1999). A form listing
teachers by name, social security number, race, sex, areas of endorsement,
grade ranges, and salary is not exempt, but teachers' home telephone
numbers would be. Op. Att'y Gen. July 2, 1984 to N.F. Smith. A mailing
list for employees is not exempt. Op. Att'y Gen. June 10, 1987 to
Hon. William Hale Singletary. Documents relating to contract employee
authorizations under § 25-9-120 (Supp. 1996) are not exempt. § 25-1-100(4)
(Supp. 1996). Evaluations of public school administrators are not
exempt. § 37-3-2(23) (Rev. 1996).
e. Test questions and answers. § 25-1-100(2)
f. Letters of recommendation. § 25-1-100(3)
g. Records which represent or constitute the
work product of any attorney, district attorney or county prosecuting
attorney representing a public body and which are related to litigation
made by or against such public body, or in anticipation of prospective
litigation. § 25-1-102
(Rev. 1991). This includes itemized statements relating to attorneys'
fees, but not the total dollar amount of attorneys' fees and expenses
paid. Op. Att'y Gen. Jan. 14, 1985 to Orma R. Smith Jr., citing Journal
Publishing Co. v. Board of Trustees, No. 125,759 (Hinds County Chancery
Court, Nov. 2, 1984).
h. Records of executive sessions of public
bodies are exempt by implication of the Open Meetings Act, Miss.
Code Ann. §25-41-7,
according to the Attorney General. Op. Att'y Gen. April 2, 1990 to
W. Rayford Jones.
i. Trade secrets and proprietary information
developed by a college under contract with a business are exempt. § 25-61-9(3). While
the trade secret exemption covers reports by third parties, it does
not serve to protect information provided to public bodies by third
parties hired to compile such information. Op. Att'y. Gen. April
17, 1998 to John H. Dunbar. The Mississippi Uniform Trade Secrets
Act was not intended to narrow the focus of the Public Records Act:
Confidential information does not have to rise to the level of trade
secret to be exempt. Caldwell & Gregory, Inc. v. University of
Southern Mississippi, 716 So.2d 1120, 1122 (Miss. App. 1998).
j. Waste minimization plans developed under
the Mississippi Comprehensive Multimedia Waste Minimization Act
of 1990 are exempt. § 25-61-9(5).
k. Data processing software that is subject
to license restrictions, or is a trade secret, or is "sensitive" is exempt. § 25-61-9(6).
l. Records which disclose information about
a person's individual tax payment or status. § 27-3-77 (Rev.
1991). A public employee's salary deductions for taxes are exempt.
Op. Att'y Gen. Aug. 8, 1985 to Hon. G.D. Williamson.
m. Appraisal information which concerns the
sale or purchase of real property for public purposes prior to
public announcement of the purchase or sale, where the release
of such records would have a detrimental effect on such sale or
purchase. § 31-1-27 (Rev.
n. Test questions and answers to be used in
future academic examinations, and letters of recommendation respecting
admission to any educational agency or institution. § 37-11-51
(Rev. 1996). This does not exempt records of student performance
at the Mississippi Law Enforcement Officers' Training Academy.
Op. Att'y Gen. July 28, 1983 to Kent McDaniel.
o. Records which contain information about
the location of any specific archaeological site, where in the
opinion of the agency disclosure would create a substantial risk
of damage or destruction to the historical value of the site or
to private property rights. § 39-7-41 (Rev.
p. Records maintained by public hospitals,
except the official minutes of the board of trustees and certain
financial reports. § 41-9-68
q. Records in the possession of the Mississippi
Department of Health, bureau of vital statistics, which would be
of no legitimate and tangible interest to the person making a request
for access to such records. § 41-57-2
r. Reports of the state medical examiner are "maintained as
confidential so as to protect the doctor/patient privilege." § 41-61-63(a)(a)
(Supp. 1996). In 1991, the Legislature repealed the exemption for
autopsy reports, § 41-61-75, repealed 1991 Miss. Laws, ch. 573 § 141.
While the Legislature rewrote § 41-61-65 (Rev. 1993) to limit
the persons to whom such reports "shall be furnished," nothing
in the present statute exempts these reports from the Records Act.
But see Op. Att'y Gen. Aug. 27, 1986 to Mr. Steven J. Delahousey;
Op. Att'y Gen. April 15, 1987 to Harold J. Stiglet (construing prior
s. The State's Concealed Weapon's Law exempts
for a period of 45 days from the date of issuance of licenses or
final denials of applications the names of people who have gotten
or applied for concealed weapon's permits in the State of Mississippi. § 45-9-101(8)
t. Records compiled in the process of detecting
and investigating alleged unlawful activity if disclosure would
harm the investigation, reveal informants, disclose investigatory
techniques, deprive a person of a fair trial, endanger the safety
of a public official, or reveal matters pertaining to quality control
or PEER review activities. § 45-29-1(1)
(Rev. 1993). Mississippi Publishers Corp. v. Coleman, 515 So. 2d
1163, 1167 (Miss. 1987). The interests protected by this statute
may be outweighed by a First Amendment interest in airing a videotape
used as evidence at a hearing, TV-3, Inc. v. Jackson, 19 Med. L.
Rptr. 1312 (Aug. 28, 1991).
u. Records compiled by a criminal law enforcement
agency which consist of information compiled for the purpose of
a criminal investigation and associated with an identifiable individual. § 45-29-3 (Supp.
1991). The 1990 amendment to this exemption, 1990 Miss. Laws, ch.
413 § 1, struck out language which had been construed to exempt
arrest reports from disclosure. The amendment also appears to have
overruled an Attorney General's opinion that the prior statute exempted
all inmate records held by the Mississippi Department of Corrections.
See Op. Att'y Gen. Jan. 18, 1985 to Morris L. Thigpen; Op. Att'y
Gen. Feb. 22, 1995 to Stewart Murphy. A State Auditor's notice to
the governor concerning possible embezzlement by a public official
may be exempt. Op. Att'y Gen. May 13, 1988 to Pete Johnson.
v. Voluntary internal environmental self-evaluation
reports of industries regulated by the Department of Environmental
Quality are exempt from the Public Records Act. § 49-2-51.
w. Noncontroverted case medical reports, rehabilitation
counselor reports and psychological reports of the Workers Compensation
as they refer to accidents, injuries and settlements." § 71-3-66
(Rev. 1995). The Attorney General's office has said this exempts
the names of all persons filing claims of work-related injuries.
Op. Att'y Gen. June 3, 1987 to Marshall Bennett. These records are
open, however, to "the parties satisfying the commission of
their interest in such records and the right to inspect them." § 71-3-66
x. Test questions to be used in future license
examinations, and license applications, except when the application
is requested by the applicant or is released with the applicant's
prior written consent. § 73-52-1
y. Information "in connection with any investigation or examination" under
the Mississippi Securities Act is exempt. § 75-71-111(c).
z. Commercial and financial information of
a proprietary nature required to be submitted to a public body
is exempt, unless it is submitted to a regulatory agency by a public
utility and is related to the establishment of, or changes in,
rates regulated by the agency. § 79-23-1(1)
(Supp. 1987). In fact, if the agency seeks to disclose voluntarily
trade secret or confidential commercial or financial information,
whether it comes from a utility or not, the agency must give notice
to the submitter. The submitter may then within a reasonable time
obtain a court order "protecting such records as confidential." § 25-61-9(1)
(Supp. 1996). South Central Bell Telephone Co. v. Mississippi Public
Service Corp., No. 123,666 (Hinds Co. Chancery Ct., June 12, 1984)
(utility costs, market analysis, market projections protected); Op.
Att'y Gen. Oct. 16, 1989 to William Bruce McKinley (Public Service
Commission records). This would apply to medicaid cost reports for
nursing homes. Op. Att'y Gen. March 4, 1987 to Col. B.F. Simmons.
Cf.Mississippi Health Care Ass'n v. State of Mississippi, No. 134,127
(Hinds Co. Chancery Ct., April 12, 1988). It would also apply to
a computer database of investors and investment information compiled
by the Research and Development Center. Op. Att'y Gen. Nov. 21, 1986
to E.E. Thrash. A list of public water district customers is not
confidential, but their customers' bank account numbers are confidential.
Op. Att'y Gen. July 18, 1994 to Sen. Ken Harper.
aa. Records maintained by domestic violence
shelters, except official minutes and certain financial reports. § 93-21-109
B. Other statutory exclusions.
1. All Mississippi Ethics Commission proceedings
and records relating to any investigation shall be kept confidential,
but this requirement is not to interfere with the Commission's "authority." § 25-4-23
(Supp. 1996). See Ethics Com'n v. Committee on Prof. Resp., 672 So.
2d 1222 (Miss. 1996).
2. The Public Employees' Retirement Systems'
individual member records are not to be disclosed without the individual's
prior written consent. § 25-11-119(3)
3. Permanent records and cumulative folders
of public school students shall not be available to the general
public. § 37-15-3 (Rev.
4. Library records relating to the identity
of a user relative to the user's use of books are confidential. § 39-3-365
5. Mississippi Bureau of Narcotics to make
and maintain a private, nonpublic record of certain convictions. § 41-29-139(c)(2)(A)
6. Records involving children, which include
all youth court records, social records, law enforcement records
and agency records under the Youth Court Law, may not be disclosed
except by order of the Youth Court. §§ 43-21-105(t),
-251 (Supp. 1996).
7. Information obtained in the discharge of
official duty by a field officer as an employee of the Department
of Corrections shall be privileged and shall not be disclosed. § 47-7-21
8. Trade secrets and "confidential information concerning business
activities" acquired by the Commission on Environmental Quality
must be kept confidential and it is a misdemeanor for any public
employee to divulge such information. § 51-3-44 (Supp. 1996).
9. Highway patrol accident reports are for
the confidential use of the department, but may be disclosed to
persons involved in the accident. § 63-3-417 (Rev. 1996).
10. All pleadings, reports, files and records
pertaining to adoption proceedings shall be confidential and shall
be withheld from inspection except on court order. § 93-17-25
11. Informant's identities are exempt from
disclosure under the Public Records Act. Singing River Electric
Power Ass'n v. State of Mississippi, 693 So.2d 368, 372 (Miss.
1997) (citing Miss. Code Ann. § 45-29-1(1)(ii)).
However, informant's identities may be disclosed to local law enforcement
pursuant to § 45-29-1(2), which provides for the free flow of
information between public bodies for the purpose of coordinating
investigation of unlawful activity. Id. at 374.
12. Public bodies which maintain or are are required to maintain
criminal history records must make those records accessible to the
public under the Public Records Act. Op. Att'y. Gen. January 30,
1998 to Honorable Forrest Allgood.
13. Complaints to the Mississippi Commission
on Judicial Performance which are dismissed (but not referred to
or filed with the Mississippi Supreme Court) are confidential and
exempt from disclosure under the Public Records Act per § 177A
of the Mississippi Constitution. Op. Att'y. Gen. March 26, 1999
to Luther T. Brantley, III.
14. Political parties, because they are not
public bodies as defined by § 25-61-3, are not subject to
the Public Records Act and are not required to release names of
candidates qualified to run for public office. Op. Att'y. Gen.
March 21, 1999 to Mr. Walter E. Gardner.
15. Records of public bodies not ordinarily
subject to disclosure under the Public Records Act may become public
(and therefore open to disclosure) if in the possession of a public
body and retained for use by that body. § 25-6-3(b) Op. Att'y.
Gen. May 4, 1997 to Dr. Thomas D. Layzell.
16. Once a justice court judgment is entered on the docket, it becomes
a public record and subject to disclosure under the Public Records
Act. Such judgments need not be entered on the Judgment Rolls to
be public and therefore accessible. Op. Att'y. Gen. April 18, 1997
to Earline Wright Hart.
17. Social Security numbers, addresses and
other personal information contained in driver's license records,
although open to disclosure prior to implementation of the federal
Driver's Privacy Protection Act of 1994 ("DPPA"), were
made confidential and exempt from disclosure under the Public Records
Act by the federal law. Op. Att'y. Gen. August 27, 1997 to Commissioner
Jim Ingram. Note that challenges to the constitutionality of this
federal statute by the states have led to permanent injunctions
by the 4th, 10th and 11th Circuit Courts of Appeal prohibiting
enforcement of the DPPA. These courts have held the federal law
unconstitutional as a violation of the 10th Amendment and an intrusion
upon powers reserved to the states.
C. Court-derived exclusions, common law prohibitions
or recognized government privileges against disclosure. The statute
recognizing a privilege not to disclose confidential medical communications, § 13-1-21,
has been said to require that certain city emergency medical services
records be kept confidential. Op. Att'y Gen. Oct. 6, 1993 to Robert
W. Lawrence. A statute authorizing blood tests of dead or unconscious
accident victims, § 63-11-7 (Rev. 1996), has been said to exempt
by implication those tests from disclosure. Op. Att'y Gen. Dec. 29,
1993 to Jim Younger.
D. Are segregable portions of records containing
exempt material are available to the public? Yes. § 25-61-9(2)
(Supp. 1996). A police department can delete the numbers of informants
from its telephone bills before disclosing them. Op. Att'y Gen.
March 18, 1992 to Freida Gunn Collins.
back to top
III. STATE LAW ON ELECTRONIC RECORDS.
Can the requester choose a format for receiving records? Miss.
Code Ann. § 25-61-10(2) (Supp. 1996) provides: "A public
body shall provide a copy of the record in the format requested if
the public body maintains the record in that format."
B. Can the requester obtain a customized search
of computer databases to fit particular needs? Records must be
available for "inspection" and
public bodies must "ensure reasonable access to records electronically
maintained." § 25-61-2 (Supp. 1996).
C. Does the existence of information in electronic
format affect its openness? No. § 25-61-2 (Supp. 1996). This statute may not
overrule Op. Att'y Gen. Aug. 14, 1995 to Rickey Gray, which says
the electronic version of Mississippi Code does not have to be released
because it is copyrighted. § 1-1-9 (Supp. 1996).
D. How is e-mail treated? Not expressly. See
Miss. Code Ann. § 25-61-3(b)
(Supp. 1996) (defining "public records").
E. Is software public? Not if obtained pursuant
to a licensing agreement that prohibits disclosure and not if the
software is "sensitive." §§ 25-61-3(c),
(d) (Supp. 1996); 25-61-9(6) (Supp. 1996). See Op. Att'y Gen. Dec.
7, 1995 to W. R. Lewis.
F. How are fees for electronic records assessed? Not specified.
G. Money-making schemes.
1. Revenues. The state must make records available at the state's
actual cost. Roberts v. Miss. Rep. Party State Exec. Com., 465 So.
2d 1050, 1054 (Miss. 1985).
2. Geographic Information Systems. Not addressed in the statute.
H. On-line dissemination. The following Mississippi resources are
available on line as of November, 1999:
1. Supreme Court and Court of Appeals Opinions.
2. Links to all state agencies, agency regulations and general legal
3. Mississippi Attorney General's Opinions (searchable).
4. Mississippi Code Annotated
IV. RECORD CATEGORIES - OPEN OR CLOSED.
Autopsy Reports. May be open. See § 41-61-63(a) (Supp. 1996);
B. Bank records. Closed if commercial and financial
information of a proprietary nature required to be submitted to
a public body. See § 79-23-1(1) (Rev. 1996); II.A.2.z., supra.
C. Business records, financial data, trade
secrets. Closed if commercial and financial information of a proprietary
nature required to be submitted to a public body, and not from
a utility concerning rates. See § 79-23-1(1) (Rev. 1996);
D. Contracts, proposals and bids. Open unless
considered appraisal information. See § 31-1-27 (Rev. 1990);
E. Collective bargaining records. Open.
F. Coroners reports. Closed. See § 41-61-63(a)
(Supp. 1996); II.A.2.r., supra.
G. Election records. Open. Op. Att'y Gen. Nov. 2, 1994 to Sen. Michael
H. Hospital reports. Generally closed except
board minutes and certain financial reports. See § 41-9-68
(Rev. 1993); II.A.2.p., supra.
I. Personnel Records. Generally closed. See § 25-1-100(1)
(Supp. 1996); II.A.2.d., supra.
1. Salary. Open.
2. Disciplinary records. Closed.
3. Applications. Generally closed.
4. Qualifications for job. Considered open.
J. Police Records. Generally permitted to be
closed by law, but frequently open in practice. See § 45-29-1
(Rev. 1993); II.A.2.t., u., supra.
1. Accident reports. Open.
2. Police blotter. Depends on contents.
3. 911 tapes. Depends on contents.
4. Investigatory records.
a. Active - may be closed.
b. Closed - closed if a report identifiable to an individual criminal
5. Arrest records. Open.
6. Compilations of criminal histories. May be closed.
7. Victims. Open if not investigatory record.
8. Confessions. Depends on contents.
9. Confidential informants. May be closed.
10. Police techniques. May be closed. See Op. Att'y Gen. Sept. 7,
1995 to Jerry A. Evans (policy on vehicle searches).
11. Mug shots. Open.
K. Prison, parole and probation reports. Some
may be closed, but no general exemption exists. See §§ 45-29-3
(Rev. 1993), 47-7-21 (Rev. 1993); II.A.2.u., II.B.7., supra.
L. Public utility records. May be open. See § 79-23-1(1)
(Rev. 1996); II.A.2.z., supra. Customer lists of public water district
are open. Op. Att'y Gen. July 18, 1994 to Ken Harper.
M. Real estate appraisals, negotiations. Closed
prior to public announcement of purchase or sale. See § 31-1-27
(Rev. 1990); II.A.2.m., supra.
N. School and university records.
1. Athletic records. No state statutory provision.
Public school cumulative folders closed. See § 37-15-3 (Rev.
1996); II.B.3., supra.
2. Trustee records. The Board of Trustees of
State Institutions of Higher Learning must keep complete minutes
and records which shall be open for inspection by any citizen of
the state. § 37-101-15(g)
(Rev. 1996). These records include the board's review and grading
of its academic programs. Mississippi Publishers Corp. v. Board of
Trustees, 9 Media L. Rptr. 2450 (Oct. 19, 1983), aff'd 478 So. 2d
269 (Miss. 1985).
3. Student records. Public school records closed.
See § 37-15-3
(Rev. 1996); II.B.3., supra. The names and addresses of students
are, however, a public record. Op. Att'y Gen. Dec. 11, 1985 to Lucien
M. Gex, Jr.
4. Other. All certified administrators in public
school districts must have current evaluations on file conducted
by the State. These evaluations are public records. § 37-3-2(23)
O. Vital statistics.
1. Birth certificates. Records in the possession
of the Mississippi Department of Health, Bureau of Vital Statistics,
are open only to persons with a "legitimate and tangible interest." § 41-57-2
2. Marriage & divorce. Records in the possession of the Mississippi
Department of Health, Bureau of Vital Statistics, are open only to
persons with a "legitimate and tangible interest." § 41-57-2
(Rev. 1993). If the county is known, marriage records in the Circuit
Clerk's office and divorce records in the Chancery Clerk's office
3. Death certificates. Records in the possession
of the Mississippi Department of Health, Bureau of Vital Statistics,
are open only to persons with a "legitimate and tangible interest." § 41-57-2
Back to the top
V. PROCEDURE FOR OBTAINING RECORDS.
A. How to start.
1. Who receives a request? Not specified. The
public body's written procedures adopted pursuant to § 25-61-5(1) should state requirements
for cost, time, place and method of access which must be "reasonable." They
usually identify the person or office to whom a request must be made.
2. Does the law cover oral requests? No.
a. Inspection allowed on "reasonable" terms. § 25-31-5(1)
(Supp. 1996). The duty to allow inspection does not require the public
body itself to search. Op. Att'y Gen. Oct. 5, 1994 to Jo-Ann Corvis.
b. If an oral request is denied: File a written one.
3. Contents of a written request.
a. A written request should, if possible, describe the requested
records as specifically as feasible.
b. Fees must be paid in advance. § 25-61-7.
c. Request should ask for a response within 14 working days.
d. Records must exist, i.e., not be future records, before the statute
applies to a request.
e. Other. Ask for a telephone call if the search will cost more
than a specified amount.
B. How long to wait.
1. The public body must produce the record or deny production within seven (7) working days from the date of a request, or within one day if it has not adopted written procedures. § 25-61-5(1).
2. Informal telephone inquiries concerning the status of the request
may be made.
3. The Act does not classify delay as a denial, but it does specifically
require action within 14 days.
4. As a practical matter, the only recourse to encourage a response,
other than editorial comment, is to get your lawyer to call the public
body or, if necessary, file suit.
C. Administrative appeal.
There is no provision
for administrative appeal in the Act. It is possible that an
agency's written procedures could create such an appeal.
D. Court action.
1. Who may sue? Any person who is denied the
right to inspect and/or copy public records may sue. § 25-61-13; Board of Trustees v.
Van Slyke, 510 So. 2d 490 (Miss. 1987). Also, third parties who furnish
to public bodies records which contain trade secrets or confidential
information may sue to obtain a court order protecting such records
as confidential. § 25-61-9(1) (Supp. 1996); Mississippi Health
Care Ass'n v. State of Mississippi, No. 134,127 (Hinds Co. Chancery
Ct., April 12, 1988).
2. Priority. Proceedings under the Act take
precedence on the docket over all other matters and shall be assigned
for hearing and trial at the earliest practicable date. § 25-61-13(3).
3. Pro se. The chancellor is unlikely to take a pro se suit seriously.
A requester litigating pro se is likely to lose rights on technical
or procedural grounds.
4. Issues the court will address:
a. Denial of records. § 25-61-13.
b. Fees for records. § 25-61-13.
c. Delays in procedure. § 25-61-13.
d. Declaratory judgment on procedural issues is available in Mississippi.
5. Pleading format. Mississippi's rules of civil procedure generally
follow the federal rules.
6. Time limit for filing suit. None. The general
statute of limitations in Mississippi is three years. § 15-1-49
(Rev. 1995). Obviously, a person seeking prompt access to public
records would be well advised to file suit promptly.
7. What court. Suit is to be filed in the chancery
court of the county in which the public body is located. § 25-61-13(1). A
public body is not "located" in a county simply because
it does business there. Board of Trustees v. Van Slyke, 510 So. 2d
490, 492-93 (Miss. 1987). In lieu of filing fee required to commence
suit to enforce the Public Records Act in chancery court, an individual
may file an Affidavit of Poverty (§ 11-53-17). Op. Att'y. Gen.
March 31, 1999 to Ed Peacock, III.
8. Judicial remedies available. The Act specifically
authorizes injunctive relief. § 25-61-13(2).
9. Costs and attorney's fees. A person who "shall willfully
and knowingly deny to any person access to any public record which
is not exempt" shall be liable for a penalty up to $100 plus "all
reasonable expenses incurred by such person bringing the lawsuit." § 25-61-15.
Denial of "access" means denial of either inspection or
copying. "Willfully and knowingly" means the denial was
not "mere mistake or carelessness." Individual members
of a public body may be held personally liable for willful denial
only if the member, apart from the public body, withholds, rejects,
or refuses to grant access. Delta Democrat Publishing Co. v. City
of Greenville, No. 47,014 (Washington Co. Chancery Ct., Ruling of
the Court on Motions, Nov. 13, 1986). A state agency was required
to pay attorney fees to an employee union when the agency refused
to release compensatory time records under the Act and the union
sued. Mississippi Department of Wildlife, Fisheries and Parks v.
Mississippi Wildlife Enforcement Officers' Ass'n, Inc., 1999 WL 47779,
*10 (Miss. 1999).
10. Fines. A penalty of up to $100 may be imposed. § 25-61-15.
11. Other Penalties. None.
12. Settlement, pros and cons. Settlement at an early stage is advisable
if the records sought can be obtained. State courts generally display
an unduly conservative attitude toward court awards of attorneys'
fees, and it will be difficult for a person suing successfully to
recover all fees.
E. Appealing initial court decisions.
1. Appeal routes. Appeal is to the Mississippi Supreme Court, which
may choose to refer the case to the Mississippi Court of Appeals.
2. Time limits for filing appeals. An appeal must generally be brought
within 30 days after entry of final judgment by the trial court.
See Miss.R.App.P. 4.
3. Contact of interested amici. Amicus briefs are rare in Mississippi
because media organizations are generally unwilling to finance them.
Press associations in Mississippi include the Society of Professional
Journalists, Sigma Delta Chi, P.O. Box 1024, Jackson, MS 39215; Mississippi
Press Association, 351 Edgewood Terrace, Jackson, MS 39206; Mississippi
Broadcasters Association, P.O. Box 4561, Jackson, MS 39216. The Reporters
Committee for Freedom of the Press sometimes files amicus briefs
in cases before the Supreme Court.
Back to the top
Mississippi's Public Records Act took an important
step into the information age in 1996, when the legislature amended
the Public Records Act to incorporate electronic records. The legislature
declared that "providing access to public records is a duty
of each public body and automation of public records must not erode
the right of access to those records. As each public body increases
its use of, and dependence on, electronic record keeping, each
public body must ensure reasonable access to records electronically
But what does it mean to have "reasonable access" to
electronic records? Must agencies provide computers on which electronic
records can be viewed? Must they maintain Worldwide Web sites through
which members of the public can access public information? Must
they produce records in the format requested, as opposed to the
format in which the records are stored? Can a member of the public
require an agency to reorganize electronic records to produce a
new record that meets the requirements of the requester?
The Mississippi Legislature potentially harmed
electronic FOI in 1999 when it passed a bill - later signed into
law - potentially allowing governmental agencies to charge more
money for information maintained in electronic form as opposed
to paper-based records. In amending the Public Records Act, the
Legislature gave agencies the authority to charge fees "reasonably related to the cost
of creating, acquiring and maintaining ... electronically accessible
data...." And unlike any other kind of public record, fees for
electronic records can be based in part on "the purpose or purposes
for which the information has been requested...," according
to the 1999 amendment to the Public Records Act. These changes have
not been tested in court, and it is unclear what they will mean to
FOI in the state.
Unfortunately, the unanswered questions about electronic FOI, combined
with the most recent changes to the Public Records Act, could take
a byte out of the public's right to know unless journalists and others
aggressively seek electronic public information.
Back to the top
Electronic FOI Tips:
Learn What Records the Agency Keeps on Computers, and Request Records
in Electronic Format
The Public Records Act requires public bodies
to provide records "in
the format requested if the public body maintains the record in that
format..." This is a valuable tool for the journalist who knows
how to use it. Electronic data by its nature can be manipulated,
categorized, edited, presented in a multitude of ways, whereas data
printed on paper is static.
EXAMPLE: Request agency budgets in electronic
format, exactly the way that the agency's budget director maintains
it on the agency computer (and maybe in the same spreadsheet
form). Likely, the agency uses its own computers to compare budget
items from year to year - or department to department; such comparisons
might not be included in a simple paper copy of the budget.
EXAMPLE: Request copies of all e-mail between
agency officials. E-mail records typically show when e-mail was
sent or received, and who sent or received it.
EXAMPLE: Request to see lists of "favorite places" or
electronic bookmarks stored on government employees' Internet browsers;
or request to see cache files to see how taxpayer-purchased computers
are being used during business hours.
EXAMPLE: Request blank copies of all computer-based
applications maintained by an agency. These might include employment,
testing, permit or license requests, employment evaluations.
Knowing what information is stored by the agency in each of these
categories will help you formulate future electronic records
Make Sure That All Electronic Records Available for Public
Journalists may be the only members of the public knowledgeable
enough about public records to monitor agencies' management of those
records. This is especially true regarding electronic records. Whenever
an agency maintains records in electronic format, the Public Records
Act requires the agency to make sure those records are available
for public inspection. In fact, before an agency can use an electronic
record-keeping system, or contract for the creation of a records
database, the agency must ensure that public access is provided.
Watch Out For Private Vendors Who Contract to Keep Public Records
Government agencies nationwide are finding it more cost effective
to contract with private vendors to create databases and to store
various forms of public records. The Mississippi Public Records Act
prevents any contract for creation or maintenance of public records
databases unless the contract allows public inspection and copying
of the records.
Monitor Fees and Challenge Improper Assessments
The Public Records Act now allows agencies
to charge fees "reasonably
related to the cost of creating, acquiring and maintaining ... electronically
accessible data...." Recall that fees for paper records can
only be "actual cost." Also, agencies are allowed to consider "the
purpose or purposes for which the information has been requested...," in
setting fees for electronic records. While this also gives agencies
the leeway to charge less for media requests, it also gives them
leeway to charge more. In other words, journalists must be vigilant
in watching agencies to make sure they do not use exorbitant fees
as a deterrent to freedom of information.
Ask Agency Officials to Perform Custom Searches of Records
The ultimate power of computer-based records is that the computer
allows fast and focused research that cannot be performed in paper
records. While the Public Records Act may not require agencies to
perform custom searches, journalists should ask government employees
to assist in the compilation of information that informs the public
about its government.
EXAMPLE: Request that certain databases be cross-referenced
or sorted to look for newsworthy trends. Are residents of certain
zip codes more likely to apply for concealed weapons permits? Do
inordinate numbers of school teachers in certain public school districts
send their own children to other school districts?
Back to top