The commission Monday delivered to the Daily Journal and the city of Tupelo its opinion that the city violated the state open records law by not making public Mayor Jason Shelton’s text messages when the Daily Journal requested them for a three-day period last fall.
It’s the first time the state body has specifically addressed text messages as public records.
Mississippi open government and transparency advocates view this unanimous commission opinion as precedent-setting for all government bodies and public officials in the state.
The city of Tupelo denied in October a Daily Journal public records request for Shelton’s text messages made with his personal phone in his official role as mayor from Oct. 23-26, a period when Development Services Director BJ Teal announced her resignation.
The Daily Journal requested in December an Ethics Commission non-binding, advisory opinion on the open records issue, a procedure laid out in state law.
The eight-member commission agreed without dissent Friday that Shelton’s text messages, regardless of the device used to produce them, qualify as public records based on the Mississippi Public Records Act passed in 1983. Commission member Sean Milner did not attend the meeting.
“Any text message used by a city official in the conduct, transaction or performance of any business, transaction, work, duty or function of (the city), or required to be maintained by (the city) is a public record subject to the Act, regardless of where the record is stored,” the commission wrote in the advisory opinion.
Shelton said Monday the commission’s opinion surprised him but he will work with City Attorney Ben Logan and other city officials to create a digital records policy for the city to meet state law. No government in the state is known to comply with the law for archiving and retaining text messages.
The mayor said he has yet to decide if he’ll keep using his personal cellphone for city business to keep potential public records separate from his personal information.
“I didn’t request a city phone because I didn’t want to carry two phones and thought it was wasteful and unnecessary,” Shelton said. “It’s unfortunate, but I may just have to carry two phones.”
Logan said in October the city does not have possession of Shelton’s text messages. Shelton said he has turned over to Logan the few remaining texts he could find related to the time period specified in the public records request.
The commission’s opinion said “purely personal messages having absolutely no relation to city business are not subject to protection under the Act.” “Any doubt about whether records should be disclosed should be resolved in favor of disclosure.”
Mississippi’s Department of Archives and History provides record retention schedules for state public bodies. State law requires municipalities’ permanent retention of “executive correspondence.”
State public record laws allow for exemptions of some government information, such as personnel records and individual tax records.
Charlie Mitchell, assistant dean of the Meek School of Journalism and New Media at the University of Mississippi, said the commission reinforced that Mississippi open records laws do not make distinctions between digital and hard-copy version of public records.
“Records, regardless of form, generated in the conduct of public business in Mississippi are public,” said Mitchell, also an attorney. “That’s the law and has been for decades and the commission is to be commended for its clearly worded analysis and ruling.”
Leonard Van Slyke, a media law attorney who advises the Mississippi Center for Freedom of Information, said the commission’s position on text messages should have reach across levels of government in Mississippi.
“This will be precedent for all public officials in Mississippi,” Van Slyke said. “I think the significance of the ruling is public officials can’t use text messages as a method to circumvent compliance of the Public Records Act.”
Lloyd Gray, executive editor of the Daily Journal, said he was glad the commission clarified the point of the public nature of text messages related to government business.
“That was our intention all along – to achieve clarity in what the law requires of public officials and we’re pleased that the commission came down on the side of transparency and openness,” Gray said.
While formal views on text messages as public documents in Mississippi did not exist before this commission decision, other states have interpreted the digital communication as public documents for years.
Mississippi law allows for fines to “any person” of up to $100 and all reasonable expenses related to lawsuits for “willfully and knowingly” denying public records access to anyone. However, Gray said the Daily Journal has no intention of filing a lawsuit as long as Tupelo officials proceed with plans to develop and institute policies that comply with state law.
The Ethics Commission currently has no binding legal authority; however, state Senate Bill 2507 provides the commission with enforcement power to hold hearings related to open records issues and to impose fines. The bill passed both legislative bodies in the 2014 session, and Gov. Phil Bryant signed it into law Friday.
Read the state Ethics Commission opinion below