October 20, 2020

A Mississippi school district charged a newspaper $500 for public records to pay the attorney who had to review them first

Who owns a government’s records?

Who gets to view and copy the papers, e-mails, voicemails, memoranda, policy postings, maintenance records, invoices, bills, notices, meeting minutes and other documents created and used by publicly-funded bodies in the course of doing the public’s business?

The public. You.

Such information is called a public record, and it all belongs to you, the taxpayer. State law says you are entitled to receive public records within seven days of asking, and you can only be charged “a reasonable fee for the redaction of any exempted material, not to exceed the agency’s actual cost… at the pay scale of the lowest level employee or contractor competent to respond to the request.”

In other words, government bodies have a week to pull the material you request and hand it over as cheaply as possible.

The (Brookhaven) Daily Leader in November made a public records request to the Lincoln County School District, seeking copies of e-mails sent and received by three district employees over the course of a one-week period earlier in the year.

The bill for the request — $465.38.

“That’s pretty interesting. I don’t think the Mississippi Ethics Commission would like that,” said Leonard Van Slyke, a media and First Amendment law attorney with Brunini Law. “They cannot charge any more than what it would take the lowest-level person their staff to do that.”

Lincoln County School District Superintendent Mickey Myers responded to the newspaper’s request on Nov. 17, 2017, with a breakdown of the costs. It took a school technician one hour to gather the 3,444 e-mails sent and received during the dates of the public records request, billed at $35.38.

But the newspaper was also quoted $430 for attorney Jim Keith to review each e-mail. That’s Keith’s hourly charge (although an asterisk explains, “It took the attorney longer to review but he only charged you an hour”).

Two questions came to mind.

No. 1 — why is it necessary for Keith to review all those e-mails?

No. 2 — if Keith is going to review public records requests at more than $400 per hour, how can the average citizen afford to procure public records from the Lincoln County School District, as is their right under the law?

Affixing such lofty prices to public records requests will likely have the chilling effect of limiting the public’s access to information about how the district operates and what issues affect it.

The newspaper sought e-mails exchanged between Myers, Loyd Star Attendance Center Principal Robin Case and Loyd Star teacher Sherry Davis from around the time a pair of officers with the Federal Bureau of Investigation questioned Davis at her school (the entire recording was posted on the Facebook page “Lincoln County School Board Whistleblower” on Oct. 27, 2017).

The newspaper balked at the price of the request and never received the e-mails. The average working man or woman would probably do the same after being asked to fork over the equivalent of a monthly car note to see information that by law is public.

Keith told The Daily Leader on Nov. 21, 2017, that public requests for e-mails go through him, since any e-mails regarding litigation must be removed. Then, in an interview on March 14, Keith said the problem with the newspaper’s request was the e-mails sought were full of information he’s allowed to withhold from the public under attorney-client privilege.

“We have a right not to produce that,” he said. “If (school officials) would go through and save all of my e-mails as we communicate in a separate folder on their system, then it would be pretty easy to produce e-mails for public records. They just don’t have time to do that.”

Both explanations seem to fly in the face of the spirit — and the letter — of the Mississippi Public Records Act of 1983.

It states, right up at the top, that “providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each public body increases its use of, and dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained, subject to records retention.”

“Does it really require an attorney, especially the highest-paid attorney, to review an e-mail?” Van Slyke asked. “I think a staff person could do that. I think you might have an argument (Keith) is not the lowest-paid person competent to do that.”

On top of Keith’s attorney-client privilege, Myers said some of his e-mails in the newspaper’s requested date range contained discussions about specific children in the school system — personal information exempted from public disclosure.

“If Jim (Keith) gets involved… it could get to where it’s cost prohibitive,” Myers said. “But I can assure you the majority of the requests we get for information do not involve Mr. Keith. Some of the things that involve legality, I’d rather the legal expert review the situation.”

Maybe Keith’s information is more nuanced, but surely an attorney is not required to identify and redact student information from an e-mail.

“During that time I had sent zero e-mails to Sherry Davis and I received one from Mrs. Robin,” he said.

Myers said most of the district’s requests are for policy documents and are handled in the district office for “$20 or less.”

Maybe The Daily Leader inadvertently chose the most-expensive public records request timeframe of the year. Or, maybe, the Lincoln County School District needs to revisit the policies on which it relies for compliance with the Mississippi Public Records Law.

(Published by The Daily Leader)