Wednesday, April 27, 2011
A new state law could take Mississippi from the middle of the pack among states, in its government transparency and accountability to near the bottom.
Senate Bill 2289, which Gov. Haley Barbour signed into law in February, makes individual members of a public body—such as a county board of supervisors—liable for fines imposed by the state Ethics Commission if they violate open-meetings requirements. Previously, the Ethics Commission could only fine public bodies as a whole, effectively placing the burden of any fines on taxpayers. But while the law was a moderate improvement to open-meetings requirements, it has the perverse effect of weakening public-records law.
Current law says that anyone who "willfully and knowingly" denies access to public records "shall be liable civilly" for a $100 fine. SB 2289 changes the law's scope, so that "any person" who denies records—regardless of whether they acted "willfully and knowingly"—"may be liable" for the fine.
David Cuillier, chairman of the Society of Professional Journalists' Freedom of Information Committee, believes that the new law is weaker than the old law, leaving it up to a judge to determine whether an alleged violator is actually liable.
Without the "willfully and knowingly" provision, the new law exposes well-intentioned public employees to lawsuits, he said. At the same time, giving judges discretion over the penalty also weakens the law, he argued.
"I think the changes are completely backward," Cuillier said. "You want the 'willfully' or 'knowingly' in there, because it's not fair to (fine) some poor clerk who maybe wasn't trained in the law and denies a record they were supposed to give out."
Rep. Greg Snowden, R-Meridian, who serves on the Judiciary A Committee, said the bill in its final form could actually strengthen penalties. Where the law previously required citizens prove public officials acted "wrongfully" to deny records, now any official who denies a record can be subject to a complaint and a fine.
"I think the idea was to make it applicable to anybody," Snowden said. "It seems counter-intuitive, but it probably actually strengthens the law because it says you don't have to be shown to be 'willful' or 'wrongful.' Any violation could make you liable."
Snowden acknowledged that the change from "shall" to "may" gives judges the discretion to decide whether to fine officials, but such gray area can accommodate individuals who may make honest mistakes or do not receive proper legal advice, he said.
Cuillier disagreed, however. "Anytime they change a 'shall' to a 'may,' they're basically gutting the law," Cuillier said.
Even the public-meetings portion of the law could have gone further. In fact, Sen. Merle Flowers, R-Southaven, the bill's author, intended it to.
As Flowers introduced it, SB 2289 allowed citizens to take complaints of open-meetings violations to chancery courts as well as the Mississippi Ethics Commission. Currently, citizens can only take their complaints to a judge on appeal from an Ethics Commission opinion. Mississippi is one of only five states that has no formal provision in state law for voiding or overturning actions that a public body takes in an improperly closed meeting. Flowers' original version of his bill would have given chancery court judges the authority to void such actions, but the House Judiciary A Committee's stripped the provision from Flowers' bill..
SB 2289 also tackled the issue of public officials denying access to public records. Flowers' bill made several changes to the bill. First, it stipulated that the $100 fine should apply per violation of the public-records law. In its final form,
This year's bill also does not touch the pressing issue of costs for public records. Public bodies often avoid outright denials of public records by demanding exorbitant costs for retrieving and copying documents, often citing hours of work that high-paid attorneys must spend redacting confidential information from the records.
During this year's session, as he did last year, Rep. David Norquist, D-Cleveland, introduced a bill to limit the cost public bodies could charge for public records. Norquist's bill would have limited potential charges to the actual cost of retrieving and copying documents. It also would have required public bodies to calculate the cost of any staff time involved by using the salary of the lowest-paid employee qualified to handle the request. Norquist's bill died in committee, leaving that particular windmill for next year.
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