Wednesday, November 23, 2016
While the fight for the Legislature's contract with nonprofit EdBuild dominated headlines this past week, it is important to not get lost in the weeds. By this, we mean that the public needsto recognize that the fight for a single contract illuminates larger problems with the state's Public Records Act—mainly that the Legislature can refuse to release just about anything it deems privileged to privacy (besides contracts subject to the Mississippi Accountability and Transparency Act).
The state's Public Records Act, passed in 1983, allows the Legislature to decide its own rules of sunshine regulation. "Nothing in this chapter shall be construed as denying the Legislature the right to determine the rules of its own proceedings and to regulate public access to its records," it states.
So yes, while the contract with EdBuild and all contracts that taxpayer dollars pay for should go public on the Transparency Mississippi website, the details of negotiations, like emails between EdBuild workers and legislators discussing how education funding needs to change, will not necessarily be made public. Reporters will ask, but the legislators have the right to say no. And they have before.
In March during Sunshine Week, the Associated Press tested the state's public-records waters. It requested emails from Gov. Phil Bryant, House Speaker Philip Gunn and Lt. Gov. Tate Reeves. Bryant was the only top state leader who released emails to the AP. Gunn told the AP that the Public Records Act does not apply to members of the Legislature. "Gunn also wrote that disclosing the requested records would endanger the privacy of other legislators and other constituents 'who should be able to expect a private communication with his or her legislator about policy,'" AP reported.
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Going forward, especially with the supermajority's eye on privatization in state agencies and their own contracts apparently, the fight for transparency will only get muddier. In recent budget hearings, lawmakers from both parties expressed frustration with agencies offering a long list of contractors providing "consultant services" or "contractual purchases" made with procurement cards without further details, revealing one danger of privatization.
That's not to say public-private partnerships can't work—they can and do. How the public tracks them, however, depends on what state agencies are required to disclose, and so far, it's not much.
If privatizing services, like the Mississippi Department of Human Services and other state agencies are doing en masse, is actually more cost-effective and beneficial to the state, the public needs receipts. Journalists and members of the public alike should have access to all contracts in order to understand how services changed and how Mississippians are better served because of the switch. State agencies and lawmakers alike need to demand and require transparency of their private partners in order for the public to accurately understand what works and what doesn't, with attached receipts.
Follow our transparency fight at jfp.ms/sunshine.