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Mississippi

Open Government Guide

Author

Luther T. Munford
Butler Snow
P.O. Box 6010
Ridgeland, MS  39158
601-985-4500
Luther.munford@butlersnow.com

Gregg Mayer
RG Mayer Law
102 Redbud Court
Brandon, MS 39047
601-572-0822
gregg.mayer@rgmayerlaw.com

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Foreword

Open Records.

Mississippi as early as 1941 recognized a right to inspect and copy public records such as land title records. The requester was not required to show a special interest in the records. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716 (1941) (interpreting what is now Miss. Code Ann. § 9-5-169). See also W. T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250, 254 (Miss. 1941) (right to inspect public records in sheriffs office); Pollard v. State, 205 So. 2d 286, 288 (Miss. 1967) (records of circuit and chancery clerks are public documents); In re Coleman, 208 F. Supp. 199, 201 (S.D. Miss. 1962), affd. 313 F.2d 867 (5th Cir. 1963) ("the right of free examination of official records is the rule").

It was not until 1983, however, that Mississippi adopted a generally applicable public records statute, now codified as § 25-61-1 et seq. There is no official legislative history, other than the record of votes and proposed amendments in the legislative journals. In the first decision by the Mississippi Supreme Court construing the Act, the court relied in part on the title of the bill in the session laws. Quoting from the title, the court held that the Act covered "records of all public bodies of government," even driver's license name lists formerly sold at a profit by the state. Roberts v. Miss. Republican Party State Executive Comm., 465 So. 2d 1050 (Miss. 1985). The Mississippi statute is not modeled on the records act of any other state.

Because the Act has not received very much judicial attention, the primary guides to its interpretation are the opinions of the state attorney general. These opinions are not formally published but are available on Westlaw. Also, the Act authorizes agencies affected to promulgate "reasonable written procedures concerning the cost, time, place and method of access" to records, § 25-61-5(1).  Any doubt about the disclosure of the requested information should be resolved in favor of disclosure.  Harrison County Development Comm’n v. Kinney, 920 So. 2d 497 (Miss. 2006).

Since passage of the 1983 Act, the legislature has steadily eroded its coverage by the adoption of exemptions. These include exemptions for medical examiner reports, § 41-61-63, and for case files of the Workers' Compensation Commission, § 71-3-66. In general, the press has failed to monitor the legislative process closely enough to mount any effective opposition to these exemptions. The legislature has scattered exemptions throughout the code. They are not codified with the Act, which has made them less visible.

In 1996, Mississippi joined those states which have updated their public records laws for the electronic age. The law gives members of the public the right to request electronic records in electronic formats. The law also forbids public agencies from contracting for information services unless the public also can access information provided by those services. However, the law does add exemptions to the Public Records Act for various forms of proprietary software. See § 25-61-1, -2, -10.

Open Meetings.

Mississippi first adopted an open meetings law in 1975. As originally enacted, the law permitted closed meetings for any reason so long as certain procedures were followed. In 1981, the legislature strengthened the law by limiting executive sessions to matters falling within one of 11 statutory exemptions. 1981 Miss. Laws, ch. 456. In 1990, the legislature changed the definition of "personnel matter" and added new notice requirements. 1990 Miss. Laws, ch. 541. The exemptions are in some respects similar to exemptions adopted previously in Louisiana. Compare Miss. Code Ann. § 25-41-7(4) to La. Rev. Stat. 42:6.1 (West Supp. 1990). There is no official legislative history of either the 1975, 1981, or 1990 bills. All that is available is the record of votes and proposed amendments in the session laws.

The Act contains a strong statement of policy which has guided the courts in interpreting the Act:

It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.

The Mississippi Supreme Court has said, "However inconvenient openness may be to some, it is the legislatively decreed public policy of this state." Mayor and Aldermen v. Vicksburg Printing & Publishing Co., 434 So. 2d 1333, 1336 (Miss. 1983), followed in Board of Trustees v. Miss. Publishers Corp., 478 So. 2d 269 (Miss. 1985).

The Act sweeps broadly. A meeting is an "assemblage of members of a public body at which official acts may be taken," § 25-41-3(b) (Supp. 2000). "Official acts" includes deliberations, and is not limited to voting. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278 (Miss. 1985). Problem areas are the "personnel" exemption, § 25-41-7(4) (a), and the failure of the Act to provide attorney fees to successful plaintiffs. Also, violation of the Act is not grounds for setting aside actions taken during a closed meeting. Shipman v. North Panola Consolidated School District, 641 So. 2d 1106 (Miss. 1994). See also Citizens for Equal Property Rights v. Board of Supervisors of Lowndes Co., 730 So. 2d 1141, 1144 (Miss.)

Any rules or regulations of public bodies governing public access should be no more restrictive than the access afforded by the state public records and open meetings laws.  State Oil & Gas Bd. v. McGowan, 542 So. 2d 244 (Miss. 1989).

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Open Records

A complete copy of the Mississippi Open Records Act is available at:

http://www.ethics.state.ms.us/ethics/ethics.nsf/PageSection/A_records_entire_pub_rec_act/$FILE/Public%20Records%20Act_7.14.17.htm?OpenElement

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I. Statute

A. Who can request records?

Under Mississippi law, “any person” may request records.

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1. Status of requester

"Any person" may request records under the Act. § 25-61-5; Op. Att'y Gen. Aug. 1, 1984 to Earline Dugan.

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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 (Department of Health, Bureau of Vital Statistics records limited to those with a "legitimate and tangible interest"); §25-61-7(a) (purpose taken into account in setting fee for “electronically accessible data”).

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3. Use of records

The Act does not restrict the requester's use of the information provided.

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B. Whose records are and are not subject to the act

All three branches of government are covered by the act.

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1. Executive branch

“Public bodies” are covered and these include departments, boards, agencies and “any other entity of the state or a political subdivision thereof and any municipal corporation and any other entity created by” state law.  §25-61-3(a).

Records of a "public body" are covered. This does not include appointed or elected public officials or their employees. See Att'y Gen. May 15, 1984 to Griffith construing § 25-61-3(a).

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, or personnel, § 25-1-100.

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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.

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3. Courts

Courts are covered, but statutes exempt records developed among judges and among judges and their aides, § 9-1-38, and among juries concerning judicial decisions, § 13-5-97.

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4. Nongovernmental bodies

Nongovernmental bodies 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). Private non-profit corporations and limited liability corporations do not meet the definition of "public body" under the act. Att'y Gen. No. 99-674, February 4, 2000 to Williamson.  Political parties also do not meet that definition.  Att’y Gen. No. 99-95, March 12, 1999 to Gardner.  Other organizations that do not meet the definition are planning and development districts, Att’y Gen. No. 2004-103, March 9, 2004 to Tutor, and the Mississippi Surplus Lines Association, Att’y Gen. No. 2004-300, July 16, 2004 to Dale.  In addition, bodies that happen to have government officials as members are not covered, see § 25-61-3(a). Records officials use in the performance of business for a public body are, however, covered. § 25-61-3(b).

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5. Multi-state or regional bodies

These would be covered if "created by the Constitution or by law, executive order, ordinance or resolution." § 25-61-3(a). Regional libraries are covered. Att’y Gen. No. 2002-479, Sept. 20, 2002 to McGough.

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6. 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).

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7. Others

A fire protection district is covered. Att’y Gen. No. 2004-91, March 5, 2004 to Schwartz. Sewer district is covered. Att’y Gen. No. 2004-170, April 16, 2004 to Cobb.

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C. What records are and are not subject to the act?

A public record includes “all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recording or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or 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 required to be maintained by any public body.” § 25-61-3(b).

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1. What kinds of records are covered?

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).

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2. What physical form of records are covered

Records are covered "regardless of physical form or characteristics." § 25-61-3(b). Computerized voter registration lists and applications for registration are "records." Att'y Gen. Jan. 16, 1990 to Molpus. The 1996 legislation, codified as § 25-61-10(a), gives requesters the right to choose the format in which they want the records provided the body maintains the record in that format, and so overrules. Att'y Gen. April 17, 1991 to Lee. The requester's rights are qualified only by the agency's right to charge a reasonable fee.

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3. Are certain records available for inspection but not copying?

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).

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4. Telephone call logs

Telephone call logs, if maintained by the public body, would be a public record if not exempt under another provision, as discussed infra.  A public body, however, is not required to create a record in order to fulfill a public records request.

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5. Electronic records

Electronic records are documentary materials that are subject to the act.

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a. Can the requester choose a format for receiving records?

Miss. Code Ann. § 25-61-10(2) 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."

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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. See also §25-61-10(1).

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c. Does the existence of information in electronic format affect its openness?

No. § 25-61-2. 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.

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d. Online dissemination

See above.

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6. How is email treated?

Contents of an e-mail system are public records.  See Miss. Code Ann. § 25-61-3(b) (defining "public records") to include “documentary materials, regardless of physical form or characteristics”); §25-61-7(a) (access to “electronically accessible data.”); Att’y Gen. No. 2007-543, Oct. 26, 2007 to Brown.  Public matter on a government e-mail or government hardware is subject to the Act.  Even private matter on government hardware may be subject to the Act, depending on the content.  Use of private email, even if public information appears on private email, is not covered.

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7. How are text messages and instant messages treated?

There is no special treatment for text messages or instant messages.  If the same are otherwise a public record as defined under the Act, then they are subject to a request.  This would not include private messages on a private phone by a government employee.

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8. How are social media postings treated?

No special treatment.

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9. Computer software

Software is not public if the license prohibits disclosure and it is a trade secret, or if it is “sensitive” i.e., controls access to exempt information, or security reasons, or information whose disclosure would “require significant intrusion into the business of a public body.” §25-61-9(6). §25-61-10(1). Att’y Gen. No. 04-193; June 4, 2004 to Thompson.

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D. Fee provisions or practices

Public bodies may “establish and collect fees reasonably calculated to reimburse it for…the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records.”  § 25-61-7.

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1. Levels or limitations on fees

Fees must be "reasonably 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(1). An agency may not charge more than "actual cost," Roberts v. Miss. Republican Party State Executive 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 Att'y Gen. Oct. 5, 1994 to Gex.  There is no statutory authority for chancery clerks to charge a flat monthly fee to abstractors for use of their office fax machine to transmit records to members of the public.  Att’y Gen. No. 2002-344, Sept. 13, 2002 to Crook.  Where the statute authorizes a court clerk to charge a fee, the fee does not count against the cap on the clerk’s compensation.  Att’y Gen. No. 96-003, Feb. 7, 1996 to Carpenter.

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2. Particular fee specifications or provisions

There are no particular fee specifications in the statute except “actual cost.”  The Mississippi Ethics Commission, an administrative agency charged with enforcement of the open-record act, has stated that 15-cents per page is standard and reasonable.  Op. R.-16-007.

Each agency may, however have "reasonable written procedures" concerning its charges. § 25-61-5(1).  In a case before the Ethics Commission’s role expanded, the Attorney General opined that the Workers’ Compensation Commission could charge $75 per hour to construct and test a search program.  Att’y Gen. No. 2000-285, June 16, 2000 to Clark.

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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.

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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.

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5. Have agencies imposed prohibitive fees to discourage requesters?

Several types of records are now available online free of charge. For example, audits and reports available from the Office of the State Auditor are contained in a searchable database at www.osa.state.ms.us and opinions from the Mississippi Supreme Court are available at www.mssc.state.ms.us. Otherwise, most agency regulations have adopted reasonable fee provisions.

For example, the Department of Archives and History charges $.10 per page for copying and $15 per hour for research. The first hour of research is free for Mississippi residents. By contrast, the State Department of Education charges $.25 per page and, if the search takes more than 15 minutes, an hourly search fee. For a general list of agency websites, see section III. H., below.

The Ethics Commission has stated that 15-cents per-page is a reasonable charge, but to go over that amount would warrant scrutiny.

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6. How are fees for electronic records determined?

Fees for “electronically accessible data” charges must be reasonably related to cost but may take into account the type of information, the purpose for the request, and the commercial value of the information. §25-61-7(a).

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E. Who enforces the act?

The act may be enforced either through the Mississippi Ethics Commission or through a lawsuit filed in chancery court.

In seeking relief through the Mississippi Ethics Commission, a complaint form is available at:

http://www.ethics.state.ms.us/ethics/ethics.nsf/PageSection/A_records_records_form/$FILE/Public%20Records%20Complaint%20Form.pdf?OpenElement

In court, suit must be filed in the chancery court of the county in which the public body sits. § 25-61-13(1). Proceedings take precedence over all other matters on the court docket. § 25-61-13(3).

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1. Attorney General's role

The act does not specifically address the role of the Attorney General.

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2. Availability of an ombudsman

See below.

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3. Commission or agency enforcement

The Mississippi Ethics Commission (http://www.ethics.state.ms.us/ethics/ethics.nsf) has enforcement power over the act.

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F. Are there sanctions for noncompliance?

“Any person who shall deny to any person access to any public record which is not exempt from the provisions of this chapter or who charges an unreasonable fee for providing a public record may be liable civilly in his personal capacity in a sum not to exceed One Hundred Dollars ($ 100.00) per violation, plus all reasonable expenses incurred by such person bringing the proceeding.” Miss. Code Ann. 26-61-15; see also Final Order R-17-026.

Attorneys’ fees are recoverable “expenses.”  Miss. Dept. of Wildlife, Fisheries and Parks v. Miss. Wildlife Enforcement Officers Ass’n, 740 So. 2d 925 (Miss. 1999).

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G. Record-holder obligations

1. Processing records requests

A public body generally has up to seven (7) days to respond to a written request, and may take up to fourteen (14) days if more time is needed.  As to whether identified records should be disclosed, the Mississippi Court of Appeals has stated: “Any doubt about whether records should be disclosed should be resolved in favor of disclosure.”  Harrison County Development Comm’n v. Kinney, 920 So.2d 497, 502 (Miss. Ct. App. 2006).

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2. Proactive disclosure requirements

Even if a public body determines some material may be exempt, the public body must redact the exempt material and produce the non-exempt material for examination.  § 25-61-7(2).

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3. Records retention requirements

Record retention can vary for city, county and state agencies.  A list of record retention guidelines in Mississippi may be found at the Mississippi Department of Archives web site: http://www.mdah.ms.gov/new/government-2/records-management/local-government-records/.

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A. Exemptions in the open records statute

1. Character of exemptions

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. § 25-61-11.  This would include information which federal law classifies as “Sensitive But Unclassified” given to the state health department.  Att’y Gen. No. 2008-358, Aug. 8, 2008 to Thompson.

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). The immunity provisions of the Tort Claims Act prevent liability claims from being asserted against officials who choose to release exempt material.  Att’y General No. 2000-74, March 10, 2000 to Hinter.  However, certain statutory exclusions found outside the Public Records Act require confidentiality.

Unlike the federal Freedom of Information Act, the Mississippi Act contains no exemption for records concerning pre-decisional and deliberative matters. Att'y Gen. Oct. 16, 1989 to McKinley.

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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. Social security numbers, telephone numbers and date of birth and age information in voter registration files are exempt.  §23-15-165(6)(a).

e. 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). This does not exempt the names of persons employed and the compensation paid to such person. Att'y Gen. June 5, 1984 to Bennie G. Thompson. Gross salary and accrued leave time are not exempt.  Miss. Dept. of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers Ass’n, 940 So. 2d 925 (Miss. 1999).  A form listing teachers by name, race, sex, areas of endorsement, grade ranges, and salary is not exempt, but teachers' home telephone numbers would be. Att'y Gen. July 2, 1984 to Smith. A mailing list for employees is not exempt. Att'y Gen. June 10, 1987 to Singletary.  A “Form for Absence of Staff” not kept in a personnel file is not exempt.  Att’y Gen. May 20, 1992 to Oakes.  Documents relating to contract employee authorizations under § 25-9-120 are not exempt. § 25-1-100(4). Evaluations of public school administrators are not exempt. § 37-3-2(23).  Statements made by a police officer during an internal affairs investigation are not subject to disclosure.  Miss. Ethics Commission Op. R-08-001 (March 6, 2009).  Contracts between a university and a university football coach and basketball coach are public records that are not exempt as personnel records.  Miss. Ethics Commission Op. R-08-009 (April 3, 2009).

f. Employment test questions and answers. § 25-1-100(2).

g. Letters of recommendation. § 25-1-100(3).

h. 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. This includes itemized statements relating to attorney’s fees, but not the total dollar amount of attorney’s 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).  An expert’s appraisal prepared in anticipation of an eminent domain suit is exempt.  Att’y Gen. Op. 2005-0294 July 1, 2005, to Graham.

i. 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.

j. Trade secrets and proprietary information developed by a college under contract with a business are exempt. § 25-61-9(3).  The definition of “trade secret” in this statute is broader than the definition found in §75-26-3.  Caldwell & Gregory, Inc. v. University of Southern Miss., 716 So. 2d 1120 (Ct. App. 1998).

k. Waste minimization plans developed under the Mississippi Comprehensive Multimedia Waste Minimization Act of 1990 are exempt. § 25-61-9(5). See also § 49-31-1 et seq.

l. Data processing software that is subject to license restrictions, or is a trade secret, or is "sensitive" is exempt. § 25-61-9(6).

m.  Home address and telephone number of any law enforcement officer, criminal private investigator, judge, district attorney or their spouse or child.  §25-61-12(1).

n.  Investigative reports in the possession of a law enforcement agency are exempt.  § 25-61-12(2)(a); investigative reports go beyond the scope of incident reports and include records whose disclosure would harm an investigation, or reveal the identity of informants or witnesses, or disclose investigative techniques, or deprive a person of the right to a fair trial, or endanger a public official or impede a prosecutor, or pertain to quality control or PEER review.  §25-61-3(f)(1).  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-i Inc. v. Jackson, 19 Med. L. Rptr. 1312 (Aug. 28, 1991).

o. Records which disclose information about a person's individual tax payment or status. § 27-3-77. A public employee's salary deductions for taxes are exempt. Att'y Gen. Aug. 8, 1985 to Williamson; Att’y Gen. Op. 2001-0753, Jan. 22, 2002 to Howell.

p. 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.

q. 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.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.

r. 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.

s. Records maintained by public hospitals, except the official minutes of the board of trustees and certain financial reports. § 41-9-68.  Att’y Gen. No. 2009-160, May 1, 2009 to Sanders.

t.  Individually identifiable information given to the State Birth Defects Registry is exempt.  §41-21-205(8)(b).

u. 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.  Lists of deceased persons sent to circuit clerks are not exempt if a person has a legitimate tangible interest in such records.  Att’y Gen. Op. 2003-0555, Oct. 24, 2003 to Allen.

v. Reports of the state medical examiner are "maintained as confidential so as to protect the doctor/patient privilege." § 41-61-63(2) (a).

w. The State's Concealed Weapon's Law exempts, for a period of 45 days from the date of issuance of license or final denial of an application, records that show who has gotten or applied for concealed weapon's permits. § 45-9-101 (8).

x. Records of the Mississippi Justice Information Center, which collects information on crime and criminal offenders, including finger prints and criminal records, and separately-maintained intelligence and investigative files, are exempt.  §45-27-19(1), (2).  Unauthorized release of criminal history record information is a crime.  §45-27-13(1).

y. Trade secrets in records relating to the financial aspects of state authorized but privately run prisons are exempt. § 47-5-575.

z. 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.

aa. Noncontroverted case medical reports, rehabilitation counselor reports and psychological reports of the Workers Compensation Commission "insofar as they refer to accidents, injuries and settlements." § 71-3-66. The Attorney General's office has said this exempts the names of all persons filing claims of work-related injuries. Att'y Gen. June 3, 1987 to 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.

bb. Test questions to be used in future license examinations, license applications, and recommendations for action on applications are exempt except when the application is requested by the applicant or is released with the applicant's prior written consent. § 73-52-1(2).

cc. Information "in connection with any investigation or examination" under the Mississippi Securities Act is exempt. § 75-71-111(c).

dd. 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 to 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); Att'y Gen. Oct. 16, 1989 to McKinley (Public Service Commission records). This would apply to Medicaid cost reports for nursing homes. Att'y Gen. March 4, 1987 to 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. Att'y Gen. Nov. 21, 1986 to Thrash. A list of public water district customers is not confidential, but their customers' bank account numbers are confidential. Att'y Gen. July 18, 1994 to Harper.

ee. Records provided by an insurer in the course of financial examination by the Commissioner of Insurance are exempt. § 83-5-209.

ff. Records maintained by domestic violence shelters, except official minutes and certain financial reports. § 93-21-109.

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B. Other statutory exclusions

a. Social security numbers must not be inadvertently disclosed by a state agency to the general public or to those without a “lawful and legitimate” need to know them.  §25-1-111.

b. 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 Comm v. Committee on Professional Responsibility, 672 So. 2d 1222 (Miss. 1996).

c. The Public Employees' Retirement Systems' individual member records are not to be disclosed without the individual's prior written consent. § 25-11-119(3).

d. Permanent records and cumulative folders of public school students shall not be available to the general public. § 37-15-3.

e. Library records relating to the identity of a user relative to the user's use of books are confidential. § 39-3-365. Generally, books and papers owned by a municipal library are public records under the act.  Att'y Gen. April 29, 1993 to Ellis. Budgets and proposed budgets of libraries are likewise public. Att'y Gen. September 20, 2002 to Gough.

f. Mississippi Bureau of Narcotics to make and maintain a private, nonpublic record of certain convictions. § 41-29-139(c)(2)(A).

g. Individually identifiable information received for purpose of ambulatory surgical facility license shall not be disclosed except in a licensure proceeding.  §41-75-19.

h. Records involving children, which includes 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(u), -251.

i. 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.

j. Information obtained by the Environmental Commission regarding trade secrets shall be kept confidential if a written confidentiality claim is made when the information is supplied and such confidentiality claim allows for disclosure to authorized department employee and to EPA.  §49-17-39.

k.  Trade secrets and "confidential information concerning business activities" acquired by the Commission on Environmental Quality as it relates to water and water resources must be kept confidential and it is a misdemeanor for any public employee to divulge such information. § 51-3-44.

l. Highway patrol accident reports are for the confidential use of the department, but may be disclosed to persons involved in the accident, the estate, spouse or next of kin. § 63-3-417.

m. 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.

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C. Court-derived exclusions, common law prohibitions, recognized 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. Att'y Gen. Oct. 6, 1993 to Lawrence. A statute authorizing blood tests of dead or unconscious accident victims, § 63-1 1-7, has been said to exempt by implication those tests from disclosure. Att'y Gen. Dec. 29, 1993 to Younger. Most medical records in a mental commitment file are exempt and not to be released absent a court order or with authorized consent. Op. Att'y Gen. December 2, 2002 to McGee.

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D. Are segregable portions of records containing exempt material available?

Yes. §§ 25-61-5(a), 25-61-9(2). 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.

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III. Record categories - open or closed

A general rule of thumb under Mississippi law: “Any doubt about whether records should be disclosed should be resolved in favor of disclosure.”  Harrison County Development Comm’n v. Kinney, 920 So.2d 497, 502 (Miss. Ct. App. 2006).

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A. Autopsy and coroners reports

Are exempt from disclosure.  See §  41 -61-63(a).  Att’y Gen. No. 2008-142, June 6, 2008 to Martin.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

No specific statutory authorization provides for the production of administrative enforcement records.  Many records may be exempt under various statutory exemptions, as, for example, the identity of informants who disclosed improper waste disposal to DEQ is exempt.  Singing River Elec. Power Ass’n v. State ex rel Miss. Dept. Env. Quality, 693 So. 2d 368 (Miss. 1997).  Active investigations are exempt.  Closed investigations may or may not be exempt depending on whether the release would harm an investigation or disclose investigating techniques or informants.

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C. Bank records

Closed if commercial and financial information of a proprietary nature is required to be submitted to a public body. See § 79-23-1 (1).

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D. Budgets

Are public records. Att’y Gen No. 2002-479, Sept. 20, 2002 to Gough.

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E. 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).  See II.A.2[bb], supra.  Confidential information about animal research at State University is exempt.  Miss. State Univ. v. People for Ethical Treatment of Animals, 992 So. 2d 595 (Miss. 2008).

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F. Contracts, proposals and bids

Open unless considered appraisal information. See §  31-1-27.  Att’y Gen. No. 90-181, March 21, 1990 to Tabb. An insurance policy, plan description, rate structure and renewal notice are public records.  Att’y Gen. No. 2007-534, Oct. 19, 2007 to Morgan.

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G. Collective bargaining records

Open.

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H. Economic development records

Open.  See Harrison County Dev. Comm’n v. Kinney, 920 So. 2d 497 (Miss. 2006).

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I. Election Records

Election records are open. Att'y Gen. Nov. 2, 1994 to Gunn.  Voter registration records are open, except for Social Security numbers, phone numbers, age and date of birth.  §23-15-167(a), (b).  Att’y Gen. No. 2009-25, Feb. 13, 2009 to Ivy.  Voter registration records are open, as are voting results.

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J. Emergency Medical Services records

If the records are maintained by public hospitals, they are exempt except the official minutes of the board of trustees and certain financial reports. § 41-9-68. Att’y Gen. No. 2009-160, May 1, 2009 to Sanders.

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K. Gun permits

Closed for a period of 45 days from issuance or denial of a permit. § 45-9-101(8).

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L. Homeland security and anti-terrorism measures

Computer vulnerability study is exempt. Att’y Gen. No. 2004-342, July 30, 2004 to McLeod.

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M. Hospital reports

Generally closed except board minutes and certain financial reports. See § 41-9-68.  “Run reports” for city EMS units are public records but name of person treated and medical information is exempt.  Att’y Gen. No. 93-592, Oct. 6, 1993 to Lawrence.

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N. Personnel records

Generally closed. See § 25-1-100(1).

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1. Salary

Gross salary is public but not net salary and tax status are not. Att’y Gen. No. 93-900, March 23, 1994 to Stringer.

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2. Disciplinary records

Closed.

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3. Applications

Depends on content.

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4. Personally identifying information

Information such as social security numbers, telephone numbers, dates of birth and age information should be removed. Att’y Gen. No. 3-555, Oct. 24, 2003 to Allen. Name, age, gender, and insurance information should be disclosed. Att’y Gen. No. 2009-366, June 26, 2009 to Morgan. Home addresses should be disclosed unless they are for law enforcement personnel. Att’y Gen. No. 2007-514, Oct. 12, 2007 to Brown.

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5. Expense reports

Depends on content.

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6. Other

Depends on content.

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O. Police records

Generally permitted to be closed by law, but frequently open in practice. See § 45-29-1.  The home address and phone number of a law enforcement officer, judge, district attorney or spouse or child of one of these officials is exempt.  §25-61-12(1).

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1. Accident reports

Incident reports are public records. §25-61-12(c). They are defined as narrative descriptions of an alleged offense including the name and identification of the person charged, the time, date and location of the offense and the property involved, if known. §25-61-3(e). Contact information does not have to be given. Att’y Gen. No. 2009-534, Oct. 5, 2009 to Bruni. A law enforcement agency must include a narrative description on the incident report, and the agency’s failure to include a narrative description in what it discloses fails to comply with the Act. Miss. Ethics Commission Op. R-10-020 (February 11, 2011).

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2. Police blotter

No specific statutory mechanism provides for the disclosure of “blotters,” although if the same falls in the category of an incident report and is maintained by the agency, then it is public.

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3. 911 tapes

Are public records. Att’y Gen. No. 98-242, June 12, 1998 to Legett. See also Att’y Gen. No. 2007-07, Feb. 9, 2007 to Knight. But some information may be exempt. Att’y Gen. No. 2002-282, May 24, 2002 to Givens.

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4. Investigatory records

Investigative records are exempt to the extent they involve more than an incident report.  §§25-61-12(2)(a), 25-61-3(f).  However, for closed investigations, records should become public if release would not harm the investigation or disclose investigating techniques or informants.

Section 25-61-3(f) defines an “investigative report” as a record of a law enforcement agency containing information beyond the scope of the matters contained in an incident report, which will generally include the following:

(i) Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation which may include crime scene reports and demonstrative evidence;

(ii) Records that would reveal the identity of informants and/or witnesses;

(iii) Records that would prematurely release information that would impede the public body's enforcement, investigative or detection efforts;

(iv) Records that would disclose investigatory techniques and/or results of investigative techniques;

(v) Records that would deprive a person of a right to a fair trial or an impartial adjudication;

(vi) Records that would endanger the life or safety of a public official or law enforcement personnel, or confidential informants or witnesses;

(vii) Records pertaining to quality control or PEER review activities.

See MISSISSIPPI ETHICS COMMISSION Opinion No. R-10-008 October 8, 2010 Page 4 of 5

(viii) Records that would impede or jeopardize a prosecutor's ability to prosecute the alleged offense.

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5. Arrest records

An incident report must contain, at a minimum, the name and identification of each person charged with and arrested for the alleged offense, the time, date and location of the alleged offense, and the property involved, to the extent the information is known. § 26-61-3.

However, under § 45-27-12, state conviction information and arrest information (e.g., all of the arrests for an individual) contained in the Mississippi Justice Information Center’s database or the nonexistence of such information in the center's database shall be made available for the following noncriminal justice purposes:

  • To any local, state or federal governmental agency that requests the information for the enforcement of a local, state or federal law;
  • To any individual, nongovernmental entity or any employer authorized either by the subject of record in writing or by state or federal law to receive such information; and
  • To any federal agency or central repository in another state requesting the information for purposes authorized by law

Otherwise, such information is exempt.  Incident reports are not exempt, nor are jail logs.

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6. Compilations of criminal histories

Closed.

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7. Victims

Victim personal information, and letters of support on behalf of victims, are exempt. §25-61-12(3).

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8. Confessions

Closed.

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9. Confidential informants

Records that would reveal the identity of informants fall under the definition of “investigative report.” See N.4.a and N.4.b above. § 25-61-3(f)(ii).

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10. Police techniques

Records that would disclose investigatory techniques and /or the results of investigative techniques fall under the definition of “investigative report.” See N.4.a and N.4.b above. § 25-61-3(f)(iv).

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11. Mugshots

Public, if classified as part of the “identification” of the person charged. §§25-61-3(e), 25-61-12(2)(b).

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12. Sex offender records

Sex offender registry is public; but not identity of victims. §45-33-49.

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13. Emergency medical services records

Required to be kept confidential. Att’y Gen. No. 93-0592, Oct. 6, 1993 to Lawrence.

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14. Police video (i.e., “body camera footage”)

P. Prison, parole and probation reports

There is no general exemption for prison jail files. Att’y Gen. No. 2002-282, May 24, 2002 to Givens. Financial records of private prisons are public, except those that contain fraud secrets. §47-5-575.

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Q. Professional licensing records

Availability of records depends on each agency, but generally whether an individual is licensed in a particular area, and the date and expiration of that license are typically available, usually on regulating agency’s Website.  Other information, including personnel matters, are typically not available.

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R. Public utility records

A city’s utility records are not exempt except to the extent they contain confidential commercial or financial information. Att’y Gen. No. 2008-107, April 18, 2008 to Dye, or social security numbers. Att’y Gen. No. 2006-291, July 10, 2006 to Baker.

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S. Real estate appraisals, negotiations

1. Appraisals

Exempt. §31-1-27.

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2. Negotiations

Exempt.

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3. Transactions

Taxpayer who told tax assessor that transaction information was confidential must be given notice before information is disclosed. Att’y Gen. No. 1-111, March 9, 2001 to Allen.

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4. Deeds, liens, foreclosures, title history

Open.

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5. Zoning records

Open.

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T. School and university records

No specific state law.

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1. Athletic records

No specific state law.

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2. Trustee records

No specific state law.

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3. Student records

No specific state law.

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4. Other

Confidential financial information developed by a college or university under contract within two business entity is exempt. §25-61-9(3). Test questions and answers for future examinations are exempt. § 37-11-51.

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U. State guard records

No specific state statute

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V. Tax records

Exempt.

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W. Vital Statistics

Only available to those with “legitimate and tangible interest.” §41-57-2.

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1. Birth certificates

Only available to those with “legitimate and tangible interest.” §41-57-2.

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2. Marriage and divorce

Only available to those with “legitimate and tangible interest.” §41-57-2.

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3. Death certificates

Only available to those with “legitimate and tangible interest.” §41-57-2.

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4. Infectious disease and health epidemics

No specific state law.

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IV. 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.

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2. Does the law cover oral requests?

No.  To formally initiate a request, it must be in writing.  File written request and public body must deny “in writing” with a “statement of the specific reasons for the denial.”  §25-61-5(2).  Public body must keep denials for three years.  Id.

Inspection of records, as opposed to copying, is allowed on "reasonable" terms. § 25-61-5(1). The duty to allow inspection may not require the public body itself to search. Op. Att'y Gen. Oct. 5, 1994 to Jo-Ann Corvis.

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3. Contents of a written request

A written request should, if possible, describe the requested records as specifically as feasible.  Fees must be paid in advance. § 25-61-7.  An agency may adopt an individual policy for how long a request may take to process, but in no event may an agency take longer than fourteen (14) days to respond.

Records must exist before the statute applies to a request.  An agency is not required to “create” a record based on a request.

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B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

The public body must produce the record or deny production within 7 working days from the date of a request, or within one day if it has not adopted written procedures. § 25-61-5(1)(a). However, if you give reasons for delay it can take an additional 7 working days, for a total of 14. §25-61-5(1)(b).

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2. Informal telephone inquiry as to status

Informal telephone inquiries concerning the status of the request may be made.

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3. Is delay recognized as a denial for appeal purposes?

The Act does not classify delay as a denial, but it does specifically require action within a total of 14 days.

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4. Any other recourse to encourage a response

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.

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C. Administrative appeal

1. Time limit

None.

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2. To whom is an appeal directed?

If agency has a policy allowing for an internal appeal, then that is the first step. As part of any request, a requestor should ask for a copy of the specific agency’s open-records policy.

Following any internal agency review, a requestor may file a complaint with the Mississippi Ethics Commission.

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3. Fee issues

None to file complaint with Ethics Commission.

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4. Contents of appeal letter

The Ethics Commission provides a form online to fill-in in order to file a complaint.  The form is available at:

http://www.ethics.state.ms.us/ethics/ethics.nsf/PageSection/A_records_records_form/$FILE/Public%20Records%20Complaint%20Form.pdf?OpenElement

Written denial is attached to request for Ethics Commission review.

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5. Waiting for a response

Public body has 14 days after receiving request from Ethics Commission. §25-61-13(1)(b).

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6. Subsequent remedies

Ethics Commission may mediate. Opinion is to be considered if suit is filed. §25-61-13(10(a).

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D. Court action

A requestor may file first with the Ethics Commission and then seek review in chancery court, or may file a complaint first in chancery court.

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1. Who may sue?

Any person who is denied the right to inspect and/or copy public records may sue. § 25-6 1-13; 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); Mississippi Health Care Ass'n State of Mississippi, No. 134,127 (Hinds Co. Chancery Ct., April 12, 1988).

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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).

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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.

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4. Issues the court will address

a. Denial

Denial of records. § 25-61-13.

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b. Fees for records

Fees for records. § 25-61-13.

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c. Delays

Delays in procedure. § 25-61-13.

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d. Patterns for future access (declaratory judgment)

Declaratory judgment on procedural issues is available in Mississippi. Miss. R. Civ. P. 57.

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5. Pleading format

Mississippi's rules of civil procedure generally follow the federal rules.

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6. Time limit for filing suit

No specific time limit set, although the general statute of limitations in Mississippi is three years. § 15-1-49. Obviously, a person seeking prompt access to public records would be well advised to file suit promptly.

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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).

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8. Judicial remedies available

The Act specifically authorizes injunctive relief. § 25-61-13(2).

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9. Litigation expenses

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. See I.F., supra.  '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).

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a. Attorney fees

Attorneys’ fees are recoverable if there is an open-records violation.  § 25-61-15.

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b. Court and litigation costs

“[A]ll reasonable expenses, including court courts, would be recoverable if there is an open-records violation. § 25-61-15

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10. Fines

A penalty of up to $100 may be imposed. § 25-61-15.

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11. Other penalties

None.

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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 attorney’s fees, and it will be difficult for a person suing successfully to recover all fees.

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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.

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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.

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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 Mississippi Press Association, 351 Edgewood Terrace, Jackson, MS 39206; Mississippi Broadcasters Association, P.O. Box 4561, Jackson, MS 39216.

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F. Addressing government suits against disclosure

Not specifically addressed in the Act.

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Open Meetings

A copy of the Mississippi Open Meetings Act is available at:

http://www.ethics.state.ms.us/ethics/ethics.nsf/PageSection/A_meetings_meetings_law/$FILE/Open%20Meetings%20Act_Updated%207.14.17.htm?OpenElement

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I. Statute - basic application

Open meetings under Mississippi law are general defined as an assemblage of members of a public body at which official acts may be taken. § 25-41-1, et. seq.

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A. Who may attend?

Meetings are open to "the public." § 25-41-5 (1). Under Mississippi law, a meeting is defined as an assemblage of members of a public body at which official acts may be taken. § 25-41-3.

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B. What governments are subject to the law?

Public bodies covered by the act include policy-making entities, committees, or any political subdivisions or municipal corporations.

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1. State

Public bodies subject to the Act include any "policy-making entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state." § 25-41 -3 (a).

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2. County

Yes. § 25-41-3(a).

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3. Local or municipal

Yes. § 25-41-3(a).

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C. What bodies are covered by the law?

Public bodies covered by the act include policy-making entities, committees, or any political subdivisions or municipal corporations.

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1. Executive branch agencies

Executive branch agencies are covered, with the exception of public and private hospital staffs, public and private hospital boards and committees thereof, law enforcement officials, the military, the state probation and parole board, the workers compensation commission, the arbitration council, licensure, suspension and discipline proceedings by the State Board of Dental Examiners, hearings and meetings of the State Tax Commission and hearing officers, and the Board of Review of the State Tax Commission. § 25-41-3(a).

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a. What officials are covered?

Each individual member of the public body that is covered by the law. § 25-14-15.

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b. Are certain executive functions covered?

Executive functions are covered, excluding the exceptions noted in C.1., supra.

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c. Are only certain agencies subject to the act?

Executive branch agencies are covered, excluding the statutory exceptions.  C.1., supra.

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2. Legislative bodies

Standing, interim, or special committees of the legislature are covered, but not subcommittees or legislative conference committees. § 25-41-3(a); Op. Att'y Gen. Oct. 17, 1989 to Rep. Jim Simpson (legislature may not by its own rules negate the applicability of the Act to legislative meetings).

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3. Courts

The judiciary and all jury deliberations are exempt. § 25-41-3(a).

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4. Nongovernmental bodies receiving public funds or benefits

The Act covers entities both "created by statute or executive order" and "supported wholly or in part by public funds" or that expends public funds. § 25-41-3(a). Private or quasi-public entities that do not meet this test are not covered. See Op. Att'y Gen. September 21, 1989 to Cecil Brown (non-profit corporation receiving state money not covered); Op. Att'y Gen. Dec. 4, 1987 to Sen. Irb Benjamin (non-profit community action agency corporation not created by statute or executive order so not a "public body.") Op. Att'y Gen. Mar. 9, 1994 to Jerry L. Mills, City Attorney of Ridgeland (non-profit baseball corporation, even though partially funded by the City, is not covered because it is not created by statute or order).

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5. Nongovernmental groups whose members include governmental officials

These are not covered unless they meet the test set forth in § 25-41-3(a). and are both "created by statute or executive order" and are "supported wholly or in part by public funds." A county-wide volunteer governmental council is not covered by the Open Meetings Act but attendance at the meeting by members of locally elected boards may be covered. See Op. Att'y Gen. Feb. 24, 1994 to Ronald S. Cochran, City of Biloxi.

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6. Multi-state or regional bodies

These are not covered unless they meet the test set forth in § 25-41-3(a) (Supp. 2000) and are both "created by statute or executive order" and are "supported wholly or in part by public funds."

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7. Advisory boards and commissions, quasi-governmental entities

These are covered. § 25-41-3(a); Major and Aldermen v. Vicksburg Printing and Publishing Co., 434 So. 2d 1333, 1336-38 (Miss. 1983) (Vicksburg Planning Commission); Op. Att'y Gen. Aug. 7, 1981 to Howard C. Ross Jr. (Jackson Planning Commission).

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8. Other bodies to which governmental or public functions are delegated

These are covered if they meet the test set forth in § 25-41-3(a) (Supp. 2000) and are both "created by statute or executive order" and are "supported wholly or in part by public funds." The Board of Trustees of State Institutions of Higher Learning is not exempt, even though it is created by constitution as well as statute. Board of Trustees v. Mississippi Publishers Corp, 478 So. 2d 273-78 (Miss. 1985).  The Mississippi Public Service Commission is not exempt and is subject to the open-meetings law.  Att’y Gen. Op. 2009-00491 (August 27, 2009).

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9. Appointed as well as elected bodies

Whether the public body is elected or appointed is irrelevant to coverage under the Open Meetings Act.

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D. What constitutes a meeting subject to the law

Generally, when members of a public body are assembled at official acts can be taken constitutes a meeting.

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1. Number that must be present

To have a "meeting," there must be an "assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." § 25-41-3(b). There is no quorum requirement. Chance meetings or social gatherings are exempt. § 25-41-17. A "chance" meeting cannot be a meeting which was called, either officially or unofficially. Factors to be considered in determining whether a meeting is a "social gathering" include the activities that take place, the notice given, the agenda, and claims for per diem and travel expenses.  The Mississippi Supreme Court has listed a number of factors to consider when determining whether an activity is business or social: (1) the activity that takes place, (2) advance call or notice, (3) agenda, (4) claim for per diem and travel expenses, and (5) other pertinent factors.  Att’y Gen. Op. 2008-00446 (September 12, 2008); see also Gannett River States Publishing Corp., Inc. v. City of Jackson, 866 So. 2d 462 (Miss. 2004).  A pre-arranged dinner meeting among a quorum (two members) of the Mississippi Transportation Commission at which matters within the Commission’s jurisdiction was discussed was a “meeting” within the Act.  Miss. Ethics Commission Op. M-09-007 (Nov. 6, 2009).  A luncheon held on the day of a board meeting was held not to be a "social gathering" in Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 278 (Miss. 1985). A public board can, however, attend a social function without complying with the Act "where no action is taken and their only function is to listen" Hinds County Board of Supervisors v. Common Cause, 551 So. 2d 107, 123 (Miss. 1989). Meetings with other public bodies are covered. Id.

However, a mayor and other individual members of the board are not necessarily prohibited from discussing matters of city business with each other where the total number of participants in the conversation or conversations is less than a quorum, such as the mayor having a conversation with one selectman, where the mayor and one selectman do not constitute a quorum.  Miss. Ethics Comm. Order No. M-15-009 (May 6, 2016).  The violation occurs when a quorum of members discusses the same matter of city business with each other or another person outside of a properly noticed public meeting, whether assembled together at the same time or in separate conversations. See, Jones v. Yazoo City Board of Mayor and Aldermen, Miss. Ethics Comm. Order No. M-12-010. “However, no violation occurs when a board member or board employee merely conveys information to members of the board, even a quorum. The county administrator and other employees of the board are free to communicate with board members on matters of county business. Such communication is essential to the proper administration of governmental functions. Likewise, individual board members are free to communicate with other individual board members, so long as these communications do not involve a quorum of the members.” Williams v. Lauderdale County Board of Supervisors, Miss. Ethics Comm. Order No. M-14-001.

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a. Must a minimum number be present to constitute a "meeting"?

Under the statute, there is no “minimum” number that must be present, although the meeting must be one at which official action may be taken.  Official action usually can be taken only if a quorum of the body is present.

The Mississippi Supreme Court determined that regularly scheduled meetings of a “subquorum” (less than a quorum) number of councilmen and the mayor over a period of two months, none of which were open to the public, violated the act.  Mayor & City Council & Columbus v. Commercial Dispatch, No. 2016-CC-00897 (Sept. 7, 2017).

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b. What effect does absence of a quorum have?

None, unless no official act may be taken at a gathering because there is a lack of a quorum, which may affect whether the meeting is open to the public.

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2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

These are covered. Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 278 (Miss. 1985). 'Work sessions" are also covered. Op. Att'y Gen. Aug. 22, 1984 to Franklin C. McKenzie Jr.  A tour of a renovated courthouse by three members of a board of supervisors would be a “meeting” under the Open Meetings Law.  Att’y Gen. Op. 2008-00446 (Sept. 12, 2008).

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b. Deliberation toward decisions

These are covered. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278 (Miss. 1985). Board members cannot meet informally before the meeting to decide how they will vote. Op. Att'y Gen. Feb. 15, 1995 to Freida E. Sipes. Cf. Maxey v. Smith, 823 F. Supp. 1321, 1331 (N.D. Miss. 1993) (potential due process violation).  “Workshop” meetings one-hour before an official meeting are subject to the Open Meetings Law.  Att’y Gen. Op. 2007-00562 (Oct. 26, 2007).

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3. Electronic meetings

Any means of assemblage by electronic means are covered by the Law. § 25-41-3(b).

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a. Conference calls and video/Internet conferencing

Telephone polls may not be used to transact public business. Op. Att'y Gen. April 20, 1984 to George S. Smith; Op. Att'y Gen. May 14, 1987 to Sharron F. Abide. If telephone polls are taken, the deliberations must have taken place pursuant to the Open Meetings Act. Board of Trustees v. Mississippi Publishers Corporation, 478 So. 2d 269, 278-79 (Miss. 1985). See also, Op. Att'y Gen. Sept. 26, 1990 to Katherine Skelton (telephone conference call may be used by a board member to participate in a lawfully called meeting provided there is a quorum physically present and it is done in a manner that will allow the public in attendance to hear all discussion and deliberations regarding any and all matters taken up at such a meeting). § 83-23-219. (Mississippi Life and Health Ins. Guaranty Association to establish regular times and places for conference calls). See also Op. Att'y Gen. Jan. 23, 2001 to Kenneth Mayfield (board of trustees for a school district may not formulate policy by way of a telephone conference or poll).

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b. E-mail

No specific reference in the Act, but presumably covered by § 25-41-3(b).

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c. Text messages

No specific reference in the Act, but presumably covered by § 25-41-3(b).

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d. Instant messaging

No specific reference in the Act, but presumably covered by § 25-41-3(b).

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e. Social media and online discussion boards

No specific reference in the Act, but presumably covered by § 25-41-3(b).

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

“Meeting” means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power. “Meeting” also means any such assemblage through the use of video or teleconference devices.

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b. Notice

No notice need be given if the time and place of meeting is specifically prescribed by statute. § 25-41-13. If there is no statutory provision, the public body is to state in its minutes the times and places and procedures by which its meetings are to be held. Legislative committee meeting times are announced during the session by loudspeaker or bulletin board, and at other times are kept by the clerk. § 25-41-13(3) and (4).
Any recess meeting, adjourned meeting, interim meeting or any called special meeting shall be posted within one (1) hour after such meeting is called.
If notice is required per the statute, then notice must be to “the general public.” § 25-41-13. If notice is required due to a recess meeting, adjourned meeting, interim meeting or any called special meeting, then notice must be posted “in a prominent place available to examination and inspection by the general public in the building in which the public body normally meets.” § 25-41-13(1).
If an agenda is distributed to the members of the public body, then it must be available for public access at the time of the meeting. § 25-41-5(4).

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c. Minutes

Must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body request be included or reflected in the minutes." § 25-41-11. See Op. Att'y Gen. Nov. 27, 1989 to Guy T. Gillespie, III.

Minutes must be recorded within 30 days and are a public record. § 25-41-11; Op. Att'y Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y Gen. Jan. 2, 1986 to Charles S. Tindall III.

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2. Special or emergency meetings

a. Definition

No statutory definition.

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b. Notice requirements

For special/emergency meetings, notice "of the place, date, hour and subject matter of any recess meeting, adjourned meeting, interim meeting or any special meeting shall be posted within one (1) hour after such meeting is called in a prominent place available to examination and inspection by the general public in the building in which the public body normally meets." § 25-41-13(1). Notice given must be "reasonably calculated to insure that a person could find out that a regular, recessed, interim or special called meeting is scheduled and where and when it will occur." Op. Att'y Gen. March 23, 1983 to E. Foley Ransom. See Op. Att'y Gen. December 18, 1989 to John R. Tabb (notice provision applied to special meetings of the Miss. State Highway Commission). By special statute, notice of all special or adjourned meetings of a board of supervisors must be posted at the courthouse door or published in the newspaper five days before the meeting. § 19-3-19; Op. Att'y Gen. Aug. 24, 1989 to Ruma Hague (notice need not list every party that may be affected in deliberations). Op. Att'y Gen. Dec. 29, 1986 to Joe B. Moss.  

Notice must be given within one hour after such meeting is called. § 25-41-13. Notice must be given to the “general public.”  § 25-41-13.  Notice should be posted “in the building in which the public body normally meets.”  § 25-41-13.

As with regular meetings, if the board is given an agenda, then it is a public record.  § 25-41-5(4).

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c. Minutes

The minutes must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body request be included or reflected in the minutes." § 25-41-11. See Op. Att'y Gen. November 27, 1989 to Guy T. Gillespie, III.

Minutes must be recorded within 30 days and are a public record. § 25-41-11; Op. Att'y Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y Gen. Jan. 2, 1986 to Charles S. Tindall III.

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3. Closed meetings or executive sessions

All meetings must begin as open meetings, but they may go into executive sessions.

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a. Definition

No statutory definition.

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b. Notice requirements

Notice must be given as for other meetings. The meeting must begin as an open meeting and must be closed by a three-fifths vote. § 25-41-7(1). Op. Att'y Gen. June 13, 1990 to Freddie Love (application of § 25-41 -7 to a meeting of a mayor and city aldermen).

The time limits, to whom the notice should be given, and where such notice is posted is the same as for other meetings.

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c. Minutes

Must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body request be included or reflected in the minutes." § 25-41-11. See Op. Att'y Gen. Nov. 27, 1989 to Guy T. Gillespie, III.

Minutes must be recorded within 30 days and are a public record. § 25-41-11; Op. Att'y Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y Gen. Jan. 2, 1986 to Charles S. Tindall III.

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d. Requirement to meet in public before closing meeting

Meeting must begin as an open meeting. § 25-41-7. The subsequent procedures are as follows:

(1) A member must make motion in open meeting for the meeting to be closed to determine whether or not the board should declare an executive session. The vote on this motion is taken in an open meeting. If a majority votes to close the meeting to make a determination on the question of an executive session, the meeting is closed for this purpose. § 25-41-7(2).

(2) No other business during this closed interim shall be considered until a vote has been taken on whether or not to declare an executive session, § 25-41-7(2). In order to go into executive session, a majority of three-fifths of those present must vote in favor of it. § 25-41-7(1).

(3) The Board must then state in open meeting the reason for going into executive session, and this reason and total vote on that question must be recorded on the minutes of the meeting. § 25-41-7(3), (5).

(4) The vote to go into executive session is applicable only to that particular meeting on that particular day. § 25-41-7(6).

(5) Action on the stated subject matter of the executive session may be taken during executive session, but the action must be recorded in the minutes. Op. Att'y. Gen. Dec. 6, 1989 to Paul B. Henderson.

Matters discussed in executive session must be limited to matters disclosed to the public as exempted from the open meeting.  Att’y Gen. Op. 2007-00639 (Dec. 7, 2007).

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e. Requirement to state statutory authority for closing meetings before closure

The reason for holding an executive session shall be stated in an open meeting and shall be recorded in the minutes, § 25-41-7(3); Op. Att'y Gen. June 13, 1990 to Freddie Lover. The reason given must be stated "with sufficient specificity to inform those present that there is in reality a specific, discrete matter or area which the board had determined should be discussed in executive session." Hinds Co. Bd. of Supervisors, supra, 551 So. 2d 111. The discussion of "litigation" is not a sufficient reason. Id. See also Op. Att'y Gen. Aug. 22, 1991 to Diane Stewart. ("To simply say 'personnel matters,' or 'litigation' tells nothing.").  Nothing in the statute governing executive session allows for the exclusion of a member of the public body, even if that member has sued the public body.  Att’y Gen. Op. 2006-00127 (May 19, 2006).  Officials who discuss matters not exempt during an otherwise properly called executive session violate the Act.  Miss. Ethics Commission Op. M-10-016 (January 7, 2011).

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f. Tape recording requirements

None.

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F. Recording/broadcast of meetings

1. Sound recordings allowed

The public body may "make and enforce reasonable rules and regulations for the conduct of persons attending its meetings." § 25-41-9. Tape recording must be allowed so long as it does not interfere with the orderly conduct of the meeting. Op. Att'y Gen. Sept. 18, 1985 to Stanford Young. See also Op. Att'y Gen. Nov. 20, 1991 to Leslie Scott ("creating a rule which expressly prohibits all sound equipment is not reasonable. The commission could only bar sound equipment in the hearing if the equipment seriously disrupts the orderly flow of the meeting"). See also Op. Att'y Gen. Sept. 6, 1990 to Henry L. Lackey ("whether television and radio coverage disrupts a meeting are questions of fact to be determined by public officials charged with the responsibility to enforce reasonable rules and regulations for the conduct of persons attending open meetings"); Op. Att'y Gen. May 3, 1990 to Fred Garrett.

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2. Photographic recordings allowed

Not addressed in Act.

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G. Access to meeting materials, reports and agendas

An agenda and materials that will be distributed to members of the public body and that have been made available to the staff of the public body in sufficient time for duplication and forwarding to the members of the public body shall be made available to the public at the time of the meeting.  § 25-41-5.

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H. Are there sanctions for noncompliance?

The Mississippi Legislature adopted a new law in 2011, which takes effect July 1, 2011, allowing for penalties to be assessed against individual members of the public body found to have violated the Open Meetings Law. Per the statute, “If the Ethics Commission finds that a member or members of a public body has willfully and knowingly violated the provisions” of the statute, “the Ethics Commission may impose a civil penalty upon the individual members of the public body found to be in violation” up to $500 for a first offense, and up to $1,000 for a second and subsequent offenses, plus all reasonable costs incurred by the person or persons in bringing the complaint.

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A. Exemptions in the open meetings statute

1. Character of exemptions

Exemptions are specific, and exclusive. Bd. of Trs. v. Miss. Publishers Corp., 478 So. 2d 269, 277 (Miss. 1985).  Exemptions are not mandatory. They are discretionary. § 25-41-7(3).

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2. Description of each exemption

a. "Transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position." § 25-41-7(4)(a). This exemption includes the transaction of business and discussions regarding "employment or job performance of a specific person in a specific position or termination of an employee holding a specific position," including discussion "concerning a line item in a budget which might affect the termination of an employee or employees" but not including final budgetary approval. § 25-41-7(k). The Legislature adopted these definitions in 1990 to reject the suggestion in Hinds County Board of Supervisors v. Common Cause, 551 So. 2d 107, 113 (Miss. 1989) that "personnel matters" could include a "large area of subject matter" such as an "increase in life insurance" and the even broader views stated by the trial court. A "personnel matter" must relate to an employee "holding a specific position." Discussion of matters affecting employees generally are not exempt. Also not exempt are discussions concerning other state officials, the employees of other agencies, or independent contractors such as architects. Id. at 124-35. See also Note, The Personnel Matters Exception to the Mississippi Open Meetings ActA Cloud Over the Sunshine Law, 7 Miss. Coll. L. Rev. 181 (1987). Members of the Public Employees' Retirement System may request closure of hearings regarding a member's mental or physical incapacitation for the future performance of duty. § 25-11-113(1)(c).

b. "Strategy sessions or negotiations with respect to prospective litigation, litigation or issuance of an appealable order when an open meeting would have a detrimental effect on the litigating position of the public body." § 25-41-7(4)(b).  Att’y Gen. Op. 2006-00127 (May 19, 2006).  A public body can invoke this exception and close a meeting concerning city annexation, even when no attorney is present. The phrase "prospective litigation" "connotes litigation reasonably likely to occur in the reasonably foreseeable future," not "imminent" litigation. Major and Aldermen v. Vicksburg Printing & Pub. Co., 434 So. 2d 1339-40 (Miss. 1983); Op. Att'y Gen. May 1, 1987 to John R. Drennan.

c. "Transaction of business and discussion regarding the report, development or course of action regarding security personnel, plans or devices." § 25-41 -7(4)(c).

d. "Investigative proceedings by any public body regarding allegations of misconduct or violation of law." § 25-41-7(4)(d).

e. "Any body of the Legislature which is meeting on matters within the jurisdiction of such body." § 25-41-7(4)(e).

f. "Cases of extraordinary emergency which would pose immediate or irrevocable harm or damage to persons and/or property within the jurisdiction of such public body." § 25-41-7(4)(f). This exemption was interpreted to allow the State Board of Medical Licensure to hold executive sessions regarding the licensing of abortion doctors. Op. Att'y Gen. Apr. 20, 1995 to P. Doyle Bradshaw.

g. "Transaction of business and discussion regarding the prospective purchase, sale or leasing of lands." § 25-1-(4)(g).

h. "Discussions between a school board and individual students who attend a school within the jurisdiction of such school board or the parents or teachers of such students regarding problems of such students or their parents or teachers." § 25-41-7(4) (h).

i. "Transaction of business and discussion concerning the preparation of tests for admission to practice in recognized professions." § 25-41-7(4)(i). A 1988 statute purports also to exempt meetings of the Mississippi Advisory Council in Occupational Therapy "upon request of an applicant who fails an examination, to prepare a response indicating any reason for his or her failure." § 73-24-11.

j. "Transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business or an industry." § 25-41-7(4)(j).

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B. Any other statutory requirements for closed or open meetings

1. "[A]ll courts shall be open. . ." Miss. Const. of 1890, art. 3, § 24. Despite this language, the closure of pretrial proceedings in a murder case was upheld in Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163 (1987).

2. "In all criminal prosecutions the accused shall have a right to a speedy and public trial. Miss. Const. of 1890, art. 3, § 26.

3. The legislature may close its doors "in cases which may require secrecy." Miss. Const. of 1890, art. 4, § 58; see also § 25-41-7(4)(e).

4. Meetings in public schools must be "public meetings," § 37-7-301(k); Op. Att'y Gen. Jan. 20, 1983 to Will A. Hickman.

5. Insurers who wish to challenge actions by the insurance commissioner are given the right to a confidential hearing in certain instances. 1996 Miss. Laws ch. 478.

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C. Court mandated opening, closing

1. "In prosecutions for rape, adultery, fornication, sodomy or the crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial." Miss. Const. of 1890 art. 3, § 26. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 n.22 (1982), the United States Supreme Court expressly reserved the question of whether this clause is constitutional under the First Amendment.

2. "The general public shall be excluded [from Youth Court hearings and only those persons who are found by the youth court to have a direct interest in the cause or work of the youth court. Any person found by the youth court to have a direct interest in the cause shall have the right to appear and be represented by legal counsel." § 43-21-203.

3. On closure of court proceedings generally in Mississippi, see In re Gannett River States Publ'g Corp., 630 So. 2d 351 (Miss. 1994); Gannett River States Publishing Co. v. Hand, 571 So. 2d 941 (Miss. 1990); Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163 (Miss. 1987).

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

No express exemption, but the litigation exemption might apply to deliberations. See § 25-41-7(4)(b). See also Att'y Gen. Op. (Oct. 16, 1989) ("This office is of the opinion the Act does not exclude records made as they relate to pre-decisional and deliberative matters except to the extent that they may be otherwise expressly protected by the law").

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1. Deliberations closed, but not fact-finding

N/A

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2. Only certain adjudications closed, i.e. under certain statutes

N/A

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B. Budget sessions

Open, except for personnel matters. See § 25-41-7(4)(a).

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C. Business and industry relations

Sometimes exempt. Meetings involving the "[transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business or an industry" may be closed. See § 25-41-7(4)(j).

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D. Federal programs

No specific exemption.

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E. Financial data of public bodies

No specific exemption.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

No specific exemption.

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G. Gifts, trusts and honorary degrees

No exemption.

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H. Grand jury testimony by public employees

Grand jury proceedings may not be disclosed by grand jurors for at least six months after the final adjournment of the grand jury. § 13-5-61.

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I. Licensing examinations

Exempt. See § 25-41-7(4)(i).

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J. Litigation, pending litigation or other attorney-client privileges

Generally exempt. See § 25-41-7(4)(b).

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K. Negotiations and collective bargaining of public employees

No specific exemption.

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1. Any sessions regarding collective bargaining

N/A

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2. Only those between the public employees and the public body

N/A

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L. Parole board meetings, or meetings involving parole board decisions

Not covered by the Act. § 25-41-3(a).

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M. Patients, discussions on individual patients

Hospitals are not covered by the Act. § 25-41-3(a).

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N. Personnel matters

Exempt. See § 25-41-7(4)(a).

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1. Interviews for public employment

Exempt. See § 25-41-7(4)(a).

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2. Disciplinary matters, performance or ethics of public employees

Exempt. See § 25-41-7(4)(a).

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3. Dismissal, considering dismissal of public employees

Exempt. See § 25-41-7(4)(a).

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O. Real estate negotiations

Exempt. See § 25-4l-7(4)(g).

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P. Security, national and/or state, of buildings, personnel or other

Exempt. See § 25-41-7(4)(c).

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Q. Students, discussions on individual students

Exempt if before the school board. See § 25-41-7(4)(h).

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IV. Procedure for asserting right of access

A. When to challenge

As soon as practical after being denied access.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No.

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2. When barred from attending

Party seeking immediate relief should do so as quickly as possible after public body has refused access or indicated it will refuse access.

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3. To set aside decision

Courts will not reverse action taken in meeting closed in violation of the Act. Shipman v. North Panola Consolidated School District, 641 So. 2d 1106, 1116 (Miss. 1994).

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4. For ruling on future meetings

No provision.

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5. Other

None.

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B. How to start

1. Where to ask for ruling

The Mississippi Ethics Commission.

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a. Administrative forum

The Mississippi Ethics Commission provides an online complaint form for filing an open-meetings complaint:

http://www.ethics.state.ms.us/ethics/ethics.nsf/PageSection/A_meetings_meetings_complaint/$FILE/Open%20Meetings%20Complaint%20Form.pdf?OpenElement

Generally, a member of the public should seek access to a meeting and be turned away before filing a complaint with the Mississippi Ethics Commission or with the chancery court. It is a good idea to question members of the public body concerning what went on in executive session. If they will respond, this can be a way of establishing the public body wrongfully considered non-exempt matters in executive session. There is no official administrative procedure for challenging closed meetings.

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b. State attorney general

Only public officials can request formal opinions from the attorney general.

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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

c. Court

The Mississippi Ethics Commission has the authority to enforce provisions of the Open Meetings Law. § 25-41-15. An appeal of the Ethics Commission determination may be made to the chancery court of the county in which the public body is located. A suit to challenge a denial of access may also be filed in chancery court.

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2. Applicable time limits

None.

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3. Contents of request for ruling

No requirement.

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4. How long should you wait for a response

After filing a Complaint with the Ethics Commission, a response from the public body should be received within fourteen days. § 25-41-15. For matters filed in chancery court, this is not addressed.

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5. Are subsequent or concurrent measures (formal or informal) available?

An appeal may be made to the chancery court of the county in which the public body is located. § 25-41-15.

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C. Court review of administrative decision

1. Who may sue?

"[A]ny citizen of the state" may sue. § 25-41-15.

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2. Will the court give priority to the pleading?

There is no provision in the Act that would make these cases preference cases.

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3. Pro se possibility, advisability

Parties may proceed pro se given the ease of the Ethics Commission process, although it is advisable to retain counsel.

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4. What issues will the court address?

a. Open the meeting

The Ethics Commission may order the public body to take whatever reasonable measures are necessary to comply with the Act. On appeal, a chancery court may issue injunctive relief to enforce the Act. § 25-41-15. Similarly, for an action first filed in chancery court, the court may issue injunctive relief.

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b. Invalidate the decision

A violation of the Open Meetings Act does not make the decision void or voidable. Shipman v. North Panola Consolidated School District, 641 So. 2d 1106, 1116 (Miss. 1994).

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c. Order future meetings open

The courts have, for example, issued injunctive relief requiring the Board of Institution of Higher Learning to hold open meetings with college presidents. Board of Trustees, supra, 478 So. 2d at 278.

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5. Pleading format

Pleading format is governed by the Mississippi Rules of Civil Procedure. No format is specified in the statute for complaints to the Ethics Commission.

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6. Time limit for filing suit

None other than general three-year statute of limitations, § 15-1-49. As a practical matter, suits seeking extraordinary relief such as an injunction should be brought as soon as possible after the Act is violated.

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7. What court

Under the new statute, a complaint may first be filed with the Mississippi Ethics Commission, and from that decision, an appeal may be taken to the chancery court. Filing with the Ethics Commission appears to be optional. A complaint may also be first filed with the chancery court, although it is possible, with the adoption of the new statute in 2011, that a chancery court may dismiss a complaint that did not first go through the Ethics Commission.

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8. Judicial remedies available

The Ethics Commission may order the public body to comply with the Act, and may impose civil penalties, as discussed above. § 25-41-15. In chancery court, remedies may include injunctive relief or writs of mandamus.

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9. Availability of court costs and attorney's fees

Yes, the statute allows for the recovery of “all reasonable expenses incurred by the person or persons in bringing the complaint.” § 25-41-15.

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10. Fines

Yes. As discussed above, individual members found to have willfully or knowingly violated the Act may be fined $500 for a first offense, and $1,000 for subsequent offenses.

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11. Other penalties

No additional penalties are specified in the statute.  In chancery court, however, if a plaintiff obtains a consent decree, violation of the decree is civil contempt and a plaintiff establishing civil contempt is entitled to recover his or her attorney’s fees. Hinds Co. Bd. of Supervisors v. Common Cause, 551 So. 2d 107, 125 (Miss. 1989). A party who fails to prove criminal contempt cannot appeal the judgment because to do so would place the defendant in double jeopardy. Common Cause v. Smith, 548 So. 2d 412 (Miss. 1989).

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D. Appealing initial court decisions

1. Appeal routes

Appeal from the Ethics Commission’s decision is to the chancery court. § 25-41-14. Appeal from the chancery court is to the Mississippi Supreme Court which may refer the case to the Court of Appeals.

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2. Time limits for filing appeals

Generally 30 days. See Miss. Sup. Ct. R. 4.

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3. Contact of interested amici

The Society of Professional Journalists, Sigma Delta Chi, P. 0. Box 1024, Jackson, MS 39215, has filed an amicus brief in a Mississippi Open Meetings Act case in the past. Other interested organizations are listed in the records outline above.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

A citizen spectator or news reporter is not a participant and cannot interfere with discussion, deliberation or decision-making process. Hinds Co. Bd. of Supervisors v. Common Cause, 551 So. 2d 107, 110 (Miss. 1989). But see Board of Trustees of State Institutions of Higher Learning v. Mississippi Publishers Corp., 478 So. 2d 269, 276 (Miss. 1985). However, where an ad valorem tax increase is proposed, citizens are afforded "reasonable amount of time" to speak. § 27-39-205.Public body may make rules and regulations regarding those attending public meeting. § 25-41-9.

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B. Must a commenter give notice of intentions to comment?

Public body may make rules and regulations regarding those attending public meeting. § 25-41-9.

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C. Can a public body limit comment?

Public body may enact rules and regulations regarding those attending public meeting. § 25-41-9.

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D. How can a participant assert rights to comment?

Public body may enact rules and regulations regarding those attending public meeting. § 25-41-9.

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E. Are there sanctions for unapproved comment?

Public body may enact rules and regulations regarding those attending public meeting. § 25-41-9.

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Appendix