Mississippi
Records requesters in Mississippi may specify electronic format and the Supreme Court has found that electronic information is covered by the public records law. One problem with the state’s law, however, is that software is protected by a "trade secrets" exemptions, which can make getting data from a proprietary software more difficult in negotiations.
The law. The
Public Records Act defines public records to include "cards, tapes, recordings
. . . and any other documentary materials, regardless of physical form or characteristics."
Miss. Code Ann. § 25-61-3(b) (1991). Each public body must ensure reasonable
access to electronically maintained records. The legislature has stated that
automation must not erode the right of access to public records. § 26-61-2
(Supp. 1997).
Mississippi has
the usual exemption for "trade secrets," which some states use to
protect software. However, the law requires the government to release trade
secrets after a waiting period unless the owner obtains a court order forbidding
disclosure. Trade secrets "developed by a college or university under contract"
are exempt, however. § 25-61-9. Use of proprietary or "sensitive"
software by a public body cannot be allowed to restrict public access to records.
Records may be
provided in ASCII format or with a legally obtainable copy of the software,
§ 25-61-10. If records are maintained in a particular format, they must
be provided in that format, if requested. § 26-61-10. A public body may
not enter into a contract for creation or maintenance of a public database if
the contract impairs the public’s ability to inspect or copy records. §
25-61-10. A 1997 law requires the state’s Administrative Office of the
Courts to draw up rules to effect "computer and/or electronic filing and
storage of all court records and court-related records throughout the state"
and to "assist courts and county offices in meeting those standards."
All courts and
county offices that store records electronically are to use standardized systems.
Court and county offices are authorized, but not required, to institute procedures
for the electronic filing and storage of court documents "to further the
efficient administration and operation of the courts. H.B. 1219, amending §
9-1-51. 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.
Cases &
opinions. In a dispute over fees, the Mississippi Supreme Court did not
question applicability of the Public Records Act to computer records, ruling
that the Department of Public Safety could not charge more than actual costs
for providing licensed-driver lists to political organizers. The opinion did
not distinguish computer tapes from printouts. Roberts v. Mississippi Safety
Highway Patrol, 465 So. 2d 1050 (Miss. 1985). Voter registration lists retained
in electronic format on hard disk drives, diskettes and magnetic tape are subject
to the Public Record Act. Miss. Op. Att’y Gen. (Jan. 16, 1990).
Computer software
programs developed by the state, which often contain confidential file access
information, are not subject to public disclosure. Miss. Op. Att’y Gen.
(April 3, 1992). Addressing digital mapping data, the attorney general said
that "computerized data must be treated like any other public record."
An agency must provide the record or information in the format requested if
that format is reasonably available. An agency may restrict copying of computer
data that is proprietary, such as digital mapping data in a geographic information
system, that were developed and copyrighted by private third parties. Miss.
Op. Att’y Gen. (Feb. 10, 1994); Miss. Op. Att’y Gen. (Feb. 25, 1994).
The Department of Wildlife, Fisheries and Parks must provide a list of employee names and the accumulated comp time they are entitled to in response to an open records request, the Supreme Court ruled in August 1999. The court said that the Mississippi Public Records Act requires disclosure of that information and that it would not be protected by which would not be covered by an exemption in the law for "certain" personnel records. Mississippi Department of Wildlife, Fisheries and Parks v. Mississippi Wildlife Enforcement Officers’ Association, 740So.2d 925, Miss.,1999 (Aug. 19, 1999).
Social Security
numbers, telephone numbers, and date of birth and age information retained in
statewide, district, county and municipal voter registration files shall be
exempt from and shall not be subject to inspection, examination, copying or
reproduction (Sections 23-15-139 et seq., Miss. Code Ann., Section 23-15-140)
. Copies of statewide, district, county or municipal voter registration files,
excluding Social Security numbers, telephone numbers, and dates of birth and
age information, shall be provided to any person in the order of requests received,
in accordance with the Public Records Act of 1983 at a cost not to exceed the
actual cost of reproduction. Miss. Op Att’y Gen. 97-0760 (Dec. 5, 1997)
Fees.
Fees must be "reasonably calculated to reimburse [an agency] for, and in
no case to exceed, the actual cost of searching, reviewing, and/or duplicating
and, if applicable, mailing copies of public records." Agencies may collect
fees before complying with requests. Miss. Code Ann. § 25-61-7 (1991).
There are no statutes "empowering public bodies to impose fees or charges
for compliance with open records requests except to recover reasonable and necessary
expenses" such as retrieval and copying. Miss. Op. Att’y Gen. (Feb.
10, 1994). The state must make records available at the state’s actual
cost. Roberts v. Miss. Rep. Party State Exec. Comm., 465 So. 2d 1050, 1054 (Miss.
1985).
In response to
a request for a computer disk, the Workers Compensation Commission estimated
that the request would involve approximately 1,500 individual records and would
require an analyst to construct and test a search program to retrieve the data
from a data base at the rate of $75 per hour, totaling $550. The Attorney General
opined that the fee was valid under § 25-61-10 of the Mississippi Code,
which provides in pertinent part that "the public body shall provide a
copy of the record in the format requested if the public body maintains the
record in that format, and the public body may charge a fee which must be in
accordance with Section 25-61-7." Section 25-61-7 states that: Each public
body may establish and collect fees reasonably calculated to reimburse it for,
and in no case to exceed, the actual cost of searching, reviewing, and/or duplicating
and, if applicable, mailing copies of public records. Such fees shall be collected
by the public body in advance of complying with the request." Miss. Op.
Att’y Gen. 2000-0285 AUTH (June 16, 2000).
Software.
Not if obtained pursuant to a licensing agreement that prohibits disclosure
and not if the software is "sensitive." §§ 25-61-3(c), (d);
25-61-9(6). See Miss. Op. Att’y Gen. Dec. 7, 1995 to W. R. Lewis.
Resources. Mississippi Attorney General Opinions