BEFORE THE MISSISSIPPI ETHICS COMMISSION

COMPLAINANT

VS. PUBLIC RECORDS CASE NO. R-17-026

MISS. DEPARTMENT OF PUBLIC SAFETY RESPONDENT

FINAL ORDER

This matter came before the Mississippi Ethics Commission through a Public Records
Complaint filed by against the Miss. Department of Public Safety (hereinafter
“DPS”), who filed a response to the complaint by and through its attorney. The Ethics
Commission has jurisdiction over this matter pursuant to Section 25-61-13, Miss. Code of 1972.
In accordance with Rule 5.6, Rules of the Mississippi Ethics Commission, the hearing officer
prepared and presented a Preliminary Report and Recommendation to the Ethics Commission at
its regular meeting on December 1, 2017. The respondent did not object to the Preliminary
Report and Recommendation and has thereby waived a right to a hearing on the merits.
Accordingly, the hearing officer enters this Final Order in accordance with Rule 5.6, Rules of the
Mississippi Ethics Commission.

I. FINDINGS OF FACT

1.1 On or about October 14, 2016, submitted a public records request to DPS
seeking “correspondence in 2016 with the National Highway Traffic Safety Administration
[“NHTSA”] . . . regarding the NHTSA DUI enforcement grants.” The public records request
specifically sought “emails, letters, and any memoranda.”

1.2 DPS timely responded to the request, but refused to produce records. DPS’s
written response explained that the Mississippi Highway Patrol had been conducting an
investigation “into paperwork filed in a federally-funded initiative targeting impaired motorists.”
DPS denied the request because of the investigation, stating that “pursuant to exemptions in the
Mississippi Public Records Act, DPS cannot release information regarding this investigation at
this time.”

1.3 eventually submitted a similar Federal Freedom of Information Act

request to NHTSA which produced in excess of one hundred pages of documents. These
documents consist of correspondence between state officials and NHTSA and related documents.
Thereafter, Hendrix filed this public records complaint against DPS.

1.4 DPS’s response to the complaint included the following explanation:

It is clear from the complaint and attached documents that complainant has met
with success in obtaining the records he apparently sought as they were available
from other sources. Therefore, complainant has not been prohibited from
accessing the documents he now complains of not receiving from DPS. Further,
as stated in DPS’s email response to complainant’s records request, DPS
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understood that an investigation was being conducted surrounding the subject area
of the request. As such, and without the permission of the investigating agency,
DPS did not believe it was clear to release such records that may impact another
agency’s investigations [without] the agency’s express authorization. DPS has no
authority or control over another agency that may choose to release records.

DPS states that the person who made the decision to deny s public records request is no
longer employed by DPS.

II. CONCLUSIONS OF LAW

2.1 The Mississippi Public Records Act of 1983 (the “Act”) declares that public
records shall be available for inspection or copying by any person unless a statute or court
decision “specifically declares” a public record to be confidential, privileged, or exempt. Section
25-61-2 and Section 25-61-11, Miss. Code of 1972. Section 25-61-5(3) states that a “[d]enial by
a public body of a request for access to or copies of public records under [the Act] shall be in
writing and shall contain a statement of the specific exemption relied upon by the public body for
the denial.”

2.2 Section 25-61-12(2) specifically exempts investigative reports in the possession

of a law enforcement agency. Section 25-61-3(f) defines an investigative report as:

[R]ecords of a law enforcement agency containing information beyond the scope

of the matters contained in an incident report, and generally will include, but not
be limited to, the following matters if beyond the scope of the matters contained
in an incident report:
(i) Records that are compiled in the process of detecting and investigating any
unlawful activity or alleged unlawful activity, the disclosure of which
would harm the investigation which may include crime scene reports and
demonstrative evidence;
(ii) Records that would reveal the identity of informants and/or witnesses;
(iii) Records that would prematurely release information that would impede the
public body's enforcement, investigative or detection efforts;
(iv) Records that would disclose investigatory techniques and/or results of
investigative techniques;
(v) Records that would deprive a person of a right to a fair trial or an impartial
adjudication;
(vi) Records that would endanger the life or safety of a public official or law
enforcement personnel, or confidential informants or witnesses;
(vii) Records pertaining to quality control or PEER review activities; or
(viii) Records that would impede or jeopardize a prosecutor's ability to prosecute
the alleged offense.

2.3 DPS’s response in this matter fails to explain how the investigative reports
exemption applies to the specific records sought by Hendrix. The response does not identify the
agency allegedly conducting the investigation or explain how DPS’s records related to the grant
R-17-026 Final Order Page 3 of 3

program qualify as investigative reports. 1 The burden of proof in this matter lies with DPS to
establish the exemption applies. See Davis v. City of Bay St. Louis, Ethics Comm. Public
Records Case No. R-13-015 and Comment 5.3, Mississippi Model Public Records Rules. DPS
has failed to establish the investigative reports exemption applies to any documents responsive to
Hendrix’s request. Based on this record, DPS violated the Act by refusing to produce documents
responsive to Hendrix’s public records request.

2.4 The Legislature has imposed an obligation on public bodies to provide the public
timely access to non-exempt public records. Section 25-61-15 states that “[a]ny person who shall
deny to any person access to any public record which is not exempt from the provisions of this
chapter or who charges an unreasonable fee for providing a public record may be liable civilly in
his personal capacity in a sum not to exceed One Hundred Dollars ($100.00) per violation, plus
all reasonable expenses incurred by such person bringing the proceeding.” The Ethics
Commission admonishes DPS officials whose duties include responding to public records
requests to carefully consider each request before denying that request. Any doubt about whether
records should be disclosed should be resolved in favor of disclosure. Harrison County
Development Commission v. Kinney, 920 So.2d 497, 502 (Miss. App. 2006). The improper
denial of a public records request is a violation of the Act which can result in the imposition of a
civil penalty against the individuals who are responsible for the denial.

III. CONCLUSION

IT IS HEREBY ORDERED as follows:

3.1 The Ethics Commission finds that the Mississippi Department of Public Safety
violated Section 25-61-2, Miss. Code of 1972, by failing to produce documents responsive to
s public records request.

3.2 The Ethics Commission orders the Mississippi Department of Public Safety to
produce documents responsive to s public records request within seven business days
from the Department of Public Safety’s receipt of this Final Order.

SO ORDERED this the 15th day of December, 2017.

____________________________________________
TOM HOOD
Executive Director & Hearing Officer
Mississippi Ethics Commission

1
DPS’s initial response to the public records request indicated the Mississippi Highway Patrol was conducting some
type of investigation, but did not provide any details helpful to the resolution of this case. DPS’s response to the
public records complaint is likewise unhelpful and vaguely states DPS understood that an investigation by an
unspecified agency was ongoing at the time sought the records. The records produced by establish
the Federal Office of Inspector General and NHTSA conducted some type of review of Mississippi’s highway safety
grant expenditures and made a demand to DPS for repayment of a substantial sum related to the grant program.