Published: February 27, 2008 10:07 am         

Government secrecy puts hole in pocketbooks

TUPELO — If someone steals your car in Mississippi, you call the police. If someone defrauds you, you call the attorney general.

But if someone denies you access to public records, no taxpayer-funded agency will help you. Instead, you hire an attorney.

In Mississippi, a state with a long history of government secrecy, it can be difficult, expensive, time consuming — and sometimes an all but impossible — to know what government leaders are up to and what special interests pull their strings.

That's because enforcement of the state's Public Records Act and Open Meetings Act falls not on the shoulders of the state, but on those of the public itself.

"Who makes sure what is public is public?" asks Tom Wicker, media lawyer and attorney for the Northeast Mississippi Daily Journal. "The public does."

The problem, adds First Amendment specialist and Jackson-based attorney Leonard Van Slyke, is that Mississippi has very little enforcement of its own public-access laws.

"Essentially," he said, "if the public body denies your request, you're forced to go to court to get relief. There is no ombudsman or no ability to get the district attorney or the attorney general to enforce it."

That's what Pass Christian resident Tut Kinney discovered several years ago. He and his neighbors were denied access to information about Harrison County's plans to locate a huge rock and gravel distribution plant near their homes.

When Kinney, a lawyer, felt the Harrison County Development Commission was wrongly withholding the information, he sued the agency.

Eventually, he won. But it wasn't easy. It cost Kinney thousands of dollars and untold hours of work over five years. The development commission even filed a lawsuit against Kinney after he requested public records, some of which, it came out in court, the agency shredded after his request.

Such cases illustrate why Mississippi ranks near the bottom in recent independent surveys about openness in government.

On the surface, Mississippi's campaign-finance, ethics, Public Records and Open Meetings rules appear solid. But in practice, they are almost never enforced. Even if they are, the penalties are mild: The maximum fine a judge can impose is $100, plus all reasonable expenses incurred by those who brought the suit. But there's no guarantee the judge will do that. In fact, it's unlikely, experts said.

"I've never seen a fine imposed in any (open meetings/records) cases I've had," said longtime media lawyer Henry Laird, attorney for the Sun Herald. "I've had probably two or three dozen cases."

And Mississippi's open-government laws carry a caveat that makes it even tougher for citizens to prevail in court: They must, in most instances, prove a public official "willfully, knowingly and substantially" denied them access to information or proceedings.

"You rarely see individuals who can take that risk," Van Slyke said.

Kinney, of course, did. But despite his victory — including the reimbursement of about $20,000 in legal costs — the ordeal didn't leave him impressed with Mississippi open government laws or their enforcement.

"If enforcement of these laws means you have to go hire a lawyer, then that's an impediment to the process," Kinney said. "A $100 fine is a joke, and they need to punish the agency heads, not the agency. My case cost the Development Commission $20,000. But it didn't cost (the director of the agency) 10 cents. He wasn't facing a fine, or loss of any of his money for not giving me records I was entitled to. It cost the citizens $20,000 for his actions. He just figured he would use the county's money to play the game. They shredded records rather than give them to me.

"Penalize the person not giving you the information, and provide for a fine of a substantial amount of money for a violation. Those records belong to the person who is asking for them, not to the government official who's holding them."

While some agencies — including the attorney general's office and local district attorneys — potentially could investigate and prosecute violations of open government laws, no one is specifically assigned the job.

As opposed to some other states, the laws in Mississippi give no statutory authority to the attorney general's office to file cases or assess penalties to violators of the open records and open meetings acts, said Mike Lanford, deputy state attorney general.

"If they funded us for four or five attorneys and set us up with an office, we could take every complaint from an individual who turns one in," Lanford said. "But I don't think we'd be authorized to represent an individual in a private lawsuit such as that."

Lanford did acknowledge the state has a weak enforcement provision and said he believes the public needs a better remedy than what currently is in place.

But his office does what it can to enlighten public officials about their responsibilities. Lanford said before the newly elected chancery and circuit clerks took office in January, he talked to them about the sunshine laws.

"I tell them it's real easy to comply with the Public Records law because you've only got to remember one thing: Everything is a public record, and you have to give it to them unless there is an exemption," Lanford said.

But not all comply. Some withhold information outright, Wicker said. Others charge outrageous "processing" fees or claim the data isn't in an inaccessible format. Both, he said, are unlawful.

When those infractions are legally challenged, it's typically the media challenging them, Van Slyke said. Very rarely do people like Kinney take a public official or a public body to court.

And that's a shame, Van Slyke continued, because the only way things will change is if the average citizen gets involved.

"The public seems to be pretty complacent until it impacts that individual," he said. "If something happens in that individual's neighborhood and he wants to go to a meeting and he can't, then he becomes very concerned about the law."

Van Slyke urges citizens to lobby their legislators for change and asked the media to step up its own fight. Only with grass-roots pressure, he said, will lawmakers strengthen the laws and bolster enforcement.

Emily Le Coz of the Northeast Mississippi Daily Journal reported from Tupelo and Geoff Pender of the Sun Herald reported from Gulfport.