By Robbie Ward
Tupelo and Lee County, like other local governments statewide, continue violating state laws by failing to maintain and archive public records involving key decisions about public money, policy and laws.
Public records of elected, appointed and other officials in government extend much deeper than basic information involving votes during meetings. Residents have a legal right to access most records and business-related communications from elected public officials and other public employees.
Lee County Administrator Sean Thompson told the Daily Journal he thinks the public should have limited access to documents related to how and why county government leaders decide policies, even if the records don’t involve sensitive information. He suggested an option is for officials to limit communication about county business to conversations and phone calls.
“I’m not trying to do anything underhanded, I just try to keep public records to a minimum,” Thompson said.
State law requires local governments to retain and archive public documents for periods of time, ranging from just a few years to forever, depending on their importance. Many records, such as audits, budgets, contracts, property deeds and documents approved during meetings are routinely maintained and archived by city, chancery and circuit clerks and other record-keepers. However, little oversight and accountability exists for maintaining and organizing other documents requiring compliance with the same standards.
Destroying public records can be much more subtle than shredding documents. It can happen as easily as pressing delete on a keyboard or cellphone.
Tim Barnard, director of the local government records office at the Mississippi Department of Archives and History, said he doesn’t know a single government among the state’s nearly 300 municipalities and 82 counties in full compliance with the law.
“Some are better than others,” he said.
Government officials not paying attention to Mississippi records laws should seriously reconsider, said Alan Shark, executive director and CEO of Public Technology Institute, a Virginia-based national nonprofit organization focused on technology issues that impact city and county governments.
Beyond open record laws, legal disputes often include electronic discovery, a federal rule since 2006, which allows judges to issue subpoenas for all digital and electronic records related to lawsuits. He said this additional legal aspect makes electronic records management systems essential to include records like emails, text messages and even communication on social media.
Beyond legal requirements, Shark said when governments don’t maintain and archive records, it can encourage an environment of public mistrust.
“The U.S. system of government was built on a healthy mistrust because they saw the excesses of bad government they had run from,” Shark said.
Federal laws require strict standards for maintenance and archiving of national records, but laws and policies vary from state-to-state. The level to which documents are maintained can have a direct impact on how well residents can follow the process leading to government decisions.
Public records, defined by the Mississippi open records law, include paper, electronic and other mediums. Communication of official government business makes a document a public record, not the material used to communicate the information. The public by law has access to all government documents except for specific sensitive information such as tax information and addresses of law enforcement officers.
The Mississippi Ethics Commission ruled in December that the Daily Journal should have access to emails it requested between Tupelo Mayor Jason Shelton and former department head B.J. Teal, although the city could redact information exempted by state law. The Commission ruled in April text messages qualify as public records. Local officials including Lee County’s Thompson and Tupelo city attorney Ben Logan have acknowledged that failure to archive emails and text messages identified as public records conflicts with state law.
Tupelo City Clerk Kim Hanna said she asked the mayor and all department heads to begin archiving and maintaining their emails after the state Ethics Commission ruling. Hanna said she has limited ability to ensure all city employees maintain electronic and digital information.
“We have archive capabilities for them to save and not delete it,” Hanna said. “But it’s up to the user to decide whether to archive it, just like hard copy letters.”
An electronic policy allowing public officials to decide whether to keep or delete emails allows for too much discretion, said Shark.
“I don’t think the honor system works here,” he said. “In terms of good government, there needs to be an official system for that to be stored.”
Logan said Tupelo will pursue a digital records policy to include text messages. In spite of state law requiring it, Lee County has no current plans to begin collecting electronic communications such as emails and text messages.
Hanna said city information technology employees have started exploring options, including use of outside companies for electronic record compliance. Commercial providers offer maintenance and archiving at required security levels for electronic records including emails, text messages and social media communication. Costs start as low as a penny per gigabyte monthly, which translates into a dollar for storing the equivalent of an entire library floor of academic journals.
However, local leaders usually rank any new expense for storing and archiving records toward the bottom of priorities when deciding how to spend tax money. City Council members discussed recently dipping into city reserves to pay for overlays for streets in poor condition. The Lee County Board of Supervisors will hold a work session this week to discuss finding new revenue to repair roads in critical condition.
Regardless of priorities and related costs, criminal laws exist to prevent destruction of public records.
Unauthorized personnel intentionally destroying public records can face a misdemeanor conviction resulting in fines from $500 to $1,000. Another law, a felony, requires up to 10 years in prison for anyone who “wittingly” erases or changes a public record.
However, state and local officials contacted by the Daily Journal had no knowledge of either law ever being enforced.
Tom Hood, executive director of the Mississippi Ethics Commission, sent an email denying any enforcement power for retaining and archiving records, as did a spokesman for state Auditor Stacey Pickering. They both referred related questions to the state Department of Archives and History.
“Unfortunately, we don’t have any enforcement power so all we can do is recommend,” said Barnard with Archives and History.
Both District Attorney Trent Kelly, who has responsibility for prosecuting criminal violations in seven counties, including Lee County, and Lee County prosecutor James Moore said they’ve never heard of any attempt at prosecutions for destroying public records in the area but said the laws could conceivably be enforced.
“If there’s a statute on the books that has been violated, the sheriff’s department or police department would be responsible for enforcing,” Moore said.
Suspected violations could be presented to a grand jury to decide whether to proceed with misdemeanor or felony charges. As for prosecuting the crimes against local officials, Kelly said he’d refer the matter to the Mississippi Attorney General’s public integrity division for assistance.
Lee County Sheriff Jim Johnson said he has no knowledge of any county or city investigation associated with local governments not retaining or archiving records.
Oklahoma State University faculty member Joey Senat, a reporter for the Commercial Appeal prior to earning a doctorate in mass communications, wrote a research article published recently in the journal Communication Law and Policy about public officials using personal electronic devices to send emails and text messages related to official business. He said governments not keeping and organizing digital records removes transparency and the public’s access to information.
“They may think it’s personal but it’s not,” he said. “It belongs to the rest of us.”
Mississippi email management guidelines
Local government records retention schedules