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Mitchell: Public’s ‘Sword’ Can Be Used as Shield by Officials

Mississippi’s access laws were designed as a sword for citizens seeking truth, but can become into a shield in the hands of reluctant public officials.

No better illustration of this than last week’s fracas between the citizen group that seeks to ratchet up public school funding and leaders in the Capitol who like things just as they are, thank you.

The situation started with Aug. 10 letters from Michael Rejebian of the “42 For Better Schools” group, which is campaigning for votes in November in favor of a citizen initiative to change Mississippi’s constitution.

One letter was to Tate Reeves, lieutenant governor. Reeves is a statewide elected official. His job includes presiding during Senate sessions, but he’s not a senator.
The other was to Phillip Gunn, speaker of the House. In Mississippi, House members chose their speaker by internal voting, so Gunn is a lawmaker. But the speaker’s office is also freestanding; the speaker is separately compensated.

In the letters, Rejebian asks for access, as provided by state law, to correspondence and any and all types related to Initiative 42 or to Initiative 42A, the alternative that the House and Senate voted to place on statewide ballots to compete with the version arising via citizen petition.

To follow the spirit of the law, Reeves and Gunn could have responded, “OK, here you go,” and made the information public.

Instead, they turned the law into a shield by saying, “We don’t have to.”

The statute defines public records as those “…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…”

The law also makes clear computer and digital records are included and directs that “each agency must ensure reasonable access to electronic records,” which were also part of Rejebian’s request.

Why so broad?

Because it’s the policy of Mississippi to have faith in the public to discern what’s best for the state and, in keeping with that belief, to maximize access to information about processes, not merely outcomes. In dictatorships, no such rights exist. Governments act by edict. In democracies, the power to govern, at least in theory, comes from the consent to be governed. And consent without access is like signing a blank check.

Reeves and Gunn referred the request to legislative committees, citing a provision in the access law that preserves the power of the Legislature “to regulate access to its records.”
The law giveth; the law taketh away. Sen. Giles Ward, R-Louisville, chairs the Rules Committee. His response was that Senate rules only require release of expense records and, in all capital letters, “NO OTHER RECORDS ARE SUBJECT TO RELEASE.”

A couple of points:
• Rejebian did not ask for legislative documents. That’s significant. He specified correspondence of employees and staff of the Office of Lieutenant Governor and the same for the Office of the Speaker. (In a different scenario, it’s likely that both Reeves and Gunn would be adamant that their documents belongs to their offices and were not “legislative records.”)
• As Sen. Ward’s carefully worded response indicates, there’s no legal requirement that the correspondence be kept private. He says, in essence, “We could if we wanted to, but we don’t have to so we’re not.”

So what we have is an artful dodge. It brings to mind the late Chancellor Willard McIlwain who wrote in a different access case about a public body was “using the law to circumvent the law.”
Access statutes exist as a safeguard against imperial acts by public officials. But they can be parsed, and often are.

At this writing, it’s not clear whether the “42 For Better Schools” organization will pursue appeals and such. Time is not on their side.

As for the merits of the matter, they’re pretty straightforward. The initiative’s backers copiously followed state law and gathered petitions to force an election on whether, upon judicial decree if necessary, public schools will be properly funded. Lawmakers, who have increased K-12 funding each year — but not to the levels they set in state law — used their power to add a competing provision to ballots. The lawmakers’ provision is expected to function as a “poison pill” by not getting enough votes to pass, but enough to defeat the initiative.

The reasoning of both camps has been interesting, fully worth voters gauging all the pros and cons before casting their ballots.

As things stand, though, Reeves and Gunn have taken the position, “Trust us. We’ll tell you what you need to know.”


Charlie Mitchell is a Mississippi journalist. Write to him at cmitchell43@yahoo.com.

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