Limits put on investigative exemptions for Miss. public records
DMR case highlights battles
By Anita Lee, The Sun Herald, March 15, 2014
BILOXI — State and federal court rulings in Mississippi have put public officials on notice that they can’t keep public records private by seizing them for investigations.
“It’s important because two courts, state and federal, have correctly concluded that records generated by a state agency in the ordinary course of business do not become state criminal investigation records simply because they are subpoenaed,” said Gulfport attorney Henry Laird, who filed a lawsuit on behalf of the Sun Herald to secure financial records from the Mississippi Department of Marine Resources.
Laird said the state auditor’s office and U.S. attorney’s office for the Southern District of Mississippi went to great lengths to keep DMR records out of the public’s hands. Both agencies claimed the records, seized from the DMR by the auditor’s office, fell under the criminal investigations exemption to the Mississippi Public Records Act.
Chancery Judge Jennifer Schloegel ruled in October that the records are public because DMR created them in the daily course of business and they were not compiled for a criminal investigation.
Even so, investigators worked to keep the records secret, spiriting them away to Jackson in the night under federal grand jury subpoena while they were supposed to be in Schloegel’s custody and after she ordered them released.
Investigative agencies appealed to the state Supreme Court and a U.S. District Court judge to keep the DMR’s business records private. Those efforts ended up failing.
Almost a year after The Sun Herald filed its lawsuit in January 2013, the newspaper reviewed the requested records — thousands of pages the auditor’s office kept in battered banker’s boxes — under Chancery Court supervision.
The newspaper is awaiting release of the records once confidential information, such as Social Security numbers, is redacted.
“The state and federal court said you can’t change the character of public records simply by transferring them to a criminal investigative agency. That’s important,” Laird said. “It’s also important to know that when a court, under the Public Records Act of Mississippi, exercises its discretion and orders records to be brought to the court for inspection, that order trumps any other order, including a federal grand jury subpoena.
The auditor had no right to take them to a federal grand jury, and the federal grand jury has no right to demand them.”
The Sun Herald was reporting on malfeasance at DMR in fall 2012, while the FBI and auditor’s office conducted their investigations. The newspaper reported that DMR records revealed the state agency, charged with conserving coastal resources, had spent $1.4 million on two boats leased from a private foundation controlled by agency Executive Director Bill Walker.
The newspaper’s ground to a halt when the auditor used the same language from a Sun Herald public records request to subpoena and seize documents in January 2013: spending records from the DMR’s Hurricane Katrina relief and artificial reef accounts.
The importance of those DMR records to the investigation became clear when the U.S. attorney’s office brought an indictment against Walker, who had been fired from the DMR, in November. He recently pleaded guilty to conspiring to commit fraud against the government, which agreed to drop four other charges against him.
Walker admitted he illegally transferred $210,000 in restricted federal funds from DMR to a nonprofit agency that bought property his son owned. The son, Ocean Springs businessman and former mayoral candidate Scott Walker, also pleaded guilty. A portion of the money used to buy Scott Walker’s property came from the Katrina relief account the newspaper had asked to examine.
The case illustrates why the public’s right to know is so important, open government advocates say. “It is essential that a government agency be held accountable to the public for how they have spent millions of dollars of federal and state funds,” said Jeanni Atkins, executive director of the Mississippi Center for Freedom of Information and University of Mississippi professor.
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