The eighth and final day of the MSMSM’s “Mississippi: The Secret State” series is instructively arranged, I’d have to say. As the trial specialists among us know, at closing-argument time, you’d prefer to get in the last word — and here, it’s the rebuttal to the case for reform that does. That’s for my next post, though; in this one, we have the advice of someone frequently-quoted throughout the series, Jackson’s Leonard Van Slyke, in Remedies proposed to allow more sunshine in Mississippi government.
A member of the advisory board for the Mississippi Center for Freedom of Information, Van Slyke begins:
– “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 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… “ – From Section 25-41-1 of the Mississippi Code.
And so, that sounds like citizens should be able to be see and hear pretty much everything there is to know about public business, doesn’t it? Well, that’s not the way it is in practice. Indeed, there’s a lot the taxpayers are not allowed to know and there’s more that the law says they should know, but the average citizen can’t afford to “fight City Hall” as the system now requires a court fight to enforce the law. …
The problem, he says, is neither the courts nor the “many public officials [who] do their best to follow a course of openness. … The real problem has been the Legislature’s unwillingness to provide the appropriate mechanisms, procedures and enforcement measures to make state and local government truly open.”
The Open Meetings Act and The Public Records Act, usually referred to as the “Sunshine Laws” or Freedom of Information laws, obviously aren’t getting the job done, and Van Slyke has suggestions to improve them.
£¢ Law Enforcement Records: Here Van Slyke finds “the single greatest weakness in the law.”
Did you know that you currently don’t even have a right, as many in law enforcement interpret the Public Records Law, to even know that a crime has been committed in your neighborhood? We are not talking here about law enforcement’s ability to withhold delicate investigative material while investigating a crime, but rather that the crime even occurred.
What must the MS Lege do? First, he recommends, repeal the general section allowing the withholding of law-enforcement records, leaving intact the “investigative exemption” protecting confidential sources and other specifics that, if made public, could compromise investigations. Next, pass a specific law to assert the public’s absolute right to know the basics about a criminal incident: what occurred, where it occurred, who was arrested, etc. Finally, pass a statute that specifically allows public access to the files on closed criminal investigations.
£¢ Ombudsman: “Another great weakness of our ‘Sunshine Laws,’” he writes, “is the inability of a citizen to get relief from a recalcitrant public body short of going to court, even if the public body is clearly violating the law.” Lawsuits are expensive, and current law says a PB has to pay a citizen’s legal fees only if it “knowingly and willfully” violated the law.
Therefore, the Lege should create an FOI ombudsman to whom an individual or corporation seeking records or access to a meeting can appeal after being denied either. Not only could the ombudsman direct a recalcitrant PB to provide the records or access but, should the PB still resist and the court find in favor of the requestor, “the individual seeking access would automatically be entitled to a reimbursement of expenses.”
£¢ Enforcement: I gather that the folo consensus agrees with Van Slyke: “Current $100 fines are a joke.” Not only should they be “substantially increased,” he says, but any action taken in an executive session held in violation of the Open Meetings Act should be void by (new) law.
£¢ Executive session votes: Van Slyke would have all PBs required to announce, immediately upon returning to open session, all individual members’ votes in executive session — not, as some of them argue, when those minutes are published (which can be up to 30 days later).
£¢ Records response time: Currently, Mississippi law allows up to 14 working days for a PB to respond to a records request — “almost three weeks and far longer than other states. This should be cut to three working days with a possible extension for good cause shown with total time allowed for response not to exceed seven working days.”
£¢ Sequential meetings: One way some PBs now get around the Open Meetings Act is by holding serial small meetings among their members, no single meeting reaching a quorum. This is “a blatant effort to circumvent the law” that new legislation should specifically prohibit. Although Supreme Court case law “already appears to prohibit this type activity,” the message obviously isn’t yet loud enough for some PBs to hear.
£¢ Quasi-public entities: Foundations related to university athletics, community development, and other activities often claim that, even though they are serving a public function, their incorporation as private entities exempts them from “Sunshine Laws.” Well then, specific new legislation needs to haul them into the “Sunshine.”
Leonard Van Slyke summarizes:
This is by no means an exhaustive list of changes needed in our Open Meetings and Public Records Laws; however, measures correcting these shortcomings would go a long way to addressing true openness in government. After all, it is the taxpayers’ business. I urge the Legislature to move forward with such corrections in this session, and I hope you will join me in seeking more open government.
A-dang-men to that!
