BEFORE THE MISSISSIPPI ETHICS COMMISSION

JOEL BOMGAR COMPLAINANT

VS. PUBLIC RECORDS CASE NO. R-17-062

MISS. DEPARTMENT OF PUBLIC SAFETY RESPONDENT

FINAL ORDER

This matter came before the Mississippi Ethics Commission through a Public Records
Complaint filed by Mr. Joel Bomgar, a state representative, (hereinafter “Bomgar”) against the
Miss. Department of Public Safety (hereinafter “DPS”), which 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. The hearing officer prepared and presented a Final
Report and Recommendation in accordance with Rule 5.8, Rules of the Mississippi Ethics
Commission, and the Ethics Commission issued this final order at its regular meeting on the date
hereof.

On February 2, 2018, the hearing officer presented a Preliminary Report and

Recommendation to the Ethics Commission, which the commission approved. On February 20,
2018, the respondent filed an objection to the preliminary report, and a hearing was set for April
11, 2018. Pursuant to Section 25-61-13 and Rule 5.2, the hearing officer issued a Pre-Hearing
Order requiring DPS to produce certain documents for in camera review. Both parties were
represented by counsel at the hearing, and a record of the hearing sufficient for a court to review
was made by means of digital video and audio recordings. Witnesses who testified at the hearing
were Commissioner of Public Safety Marshall Fisher, DPS Chief of Staff Mandy Davis, DPS
Senior Counsel James Younger, DPS Executive Counsel Shannon Jones and the complainant,
Rep. Joel Bomgar. The parties filed post-hearing submissions on May 3, 2018.

I. FINDINGS OF FACT

1.1 According to the complaint, Bomgar met with John Dowdy, Director of
Mississippi Bureau of Narcotics, in early June 2017 to discuss a number of issues related to the
ongoing opioid crisis, addiction, drug related crimes and current drug policies in Mississippi. As
a follow-up to this meeting, Bomgar sent an email to Dowdy on or about June 12, 2017,
including a series of observations, statistics and questions related to the subject matter above and
requesting Dowdy respond to him at his convenience. Dowdy agreed, stating, “I will be working
on getting you some ‘answers’ to these questions.” In the months that followed, Bomgar emailed
Dowdy on numerous dates inquiring as to the status of his response. After some initial back and
forth via email and by telephone, Dowdy wrote a response and forwarded it to the DPS
Commissioner’s office for review. 1 On November 3, 2017, after hearing nothing further from
Dowdy, Bomgar met with DPS Chief of Staff Mandy Davis regarding his request. During that

1
In an email to Bomgar dated September 12, 2017, Dowdy states, “I was compelled to run our response through
Commissioner Fisher’s office. I was advised yesterday that DPS Chief of Staff Mandy Davis will be contacting you
regarding the response to your inquiry.”
R-17-062 Final Order Page 2 of 7

meeting Bomgar submitted a formal public records request to Davis via email, requesting a copy
of the “responses of Director Dowdy and/or his staff to my questions, sent to him in an email
dated on or around June 12, 2017.”

1.2 At the hearing Davis testified that processing requests for public records is not
one of her job duties and that she had never before received such a request. (Video Part 1,
01:04:19 – 01:04:48) Davis also testified she had never received any training at DPS about
processing public records requests and was not aware of any written policy or rules at DPS
regarding public records. (Video Part 1, 01:13:20 – 01:15:55) Davis further testified that on
Monday, November 6, 2017, she forwarded Bomgar’s request for public records to Shannon
Jones at Jones’s request. (Video Part 1, 01:04:50 – 01:05:10) That statement is corroborated by
the emails produced to the hearing officer. Based on this testimonial and documentary evidence,
it is clear that Shannon Jones, and not Mandy Davis, was responsible for responding to the
request for public records submitted by Bomgar in his email of November 3rd.

1.3 After receiving no response from Davis to his public records request, Bomgar
followed up again via email on November 17, 2017, in order to check on the status of his
request. Davis testified that she checked with Shannon Jones about the request and learned for
the first time that DPS had not responded to Bomgar. (Video Part 1, 01:05:10 – 01:05:50) It was
at this point that Davis responded to Bomgar explaining, “I am afraid I was unable to
accommodate your request though this email. You will need to contact Jim Younger in the Legal
Office.” 2

1.4 As directed, Bomgar contacted Jim Younger, Senior Attorney for DPS, via
telephone on November 21 and again on November 29, 2017 in order to discuss the ongoing
status of his public records request. Younger sent a letter to Bomgar on November 29, 2017,
denying his request for public records which included the following explanation: 3

While Director Dowdy did prepare a response to your letter, he did not release it
because it is not a record which his agency is required to maintain. Here, your
request is a series of interrogatories which is not a valid public records request.
See R-10-013: Thomas v. City of Gulfport, Mississippi Ethics Commission. For
these reasons, the Mississippi Department of Public Safety declines your request.
If you are aggrieved by the decision, you may file a complaint with the
Mississippi Ethics Commission or a complaint in Chancery Court.

1.5 On November 30, 2017, Bomgar sent an email to Younger outlining their
conversations. In this email Bomgar stated that during both telephone conversations with
Younger, he attempted to clarify his original email of June 12, 2017, addressed to Dowdy, was
not a public records request but was a request seeking information. Bomgar also explained that
he was aware a document was created by Dowdy in response to his questions, and that document
should be produced to him pursuant to his records request of November 3, 2017. Bomgar again
requested an explanation for the denial of his public records request, stating, “[p]lease let me

2
Davis responded to Bomgar ten (10) business days after the initial public records request was submitted and only
after Bomgar initiated contact.
3
Younger issued the denial letter to Bomgar sixteen (16) business days after the initial public records request was
submitted and only after Bomgar initiated contact.
R-17-062 Final Order Page 3 of 7

know why I have not yet received a response to my valid public records request in my email to
Mandy Davis … dated November 3, 2017.” Bomgar sent an additional email to Younger on
December 11, 2017, outlining further unsuccessful attempts to contact him via telephone on
numerous dates and asserting, “[i]t has now been more than five (5) weeks since that valid public
records request was submitted.” Younger did not respond further.

1.6 Aggrieved, Bomgar filed a public records complaint against DPS with the Ethics
Commission on December 12, 2017. DPS responded by and through its counsel, Jim Younger.
With respect to the timeline provided in the complaint, the response states, “[o]n November 17,
2017, Ms. Davis told Representative Bomgar to call me, and I spoke with [Bomgar] on
November 21, 2017. Since I did not have full details relating to any responses DPS had made at
that point, I requested that [Bomgar] allow me to get back with him concerning his request, and
he agreed. In doing so, Representative Bomgar waived any time requirements under the Public
Records Act.” Younger also denies that DPS did not respond to Bomgar’s public records request,
noting a denial letter was issued to Bomgar on November 29, 2017. Additionally, concerning the
reasons DPS denied the request, Younger explains:

Representative Bomgar is not entitled to Director Dowdy’s responses to his series

of questions is supported by the Ethics Commission’s opinion in Thomas v.
Gulfport, Public Records Opinion R-10-013. There, Thomas sought records
showing employees who were discharged by the City from July 2009 to present.
He demanded a list showing position, job title, race, years of service, reasons for
discharge, and salary. The City replied that the Public Records Act does not
require a public body to create a document. In upholding the denial of Thomas’
request, the Commission wrote that a requestor must request an identifiable record
or class of records, and noted that an identifiable record is not a request for
information. Further, public records requests are not interrogatories.

Applying this opinion to Representative Bomgar’s request, his request should be

denied. Representative Bomgar’s email of June 12, 2017, contains what he calls
observations concerning how much crime is related to drugs, how to avoid
recidivism, and preventing addicts from switching to street drugs. Representative
Bomgar describes the increased demand for more potent drugs, then asks, “how
do we solve this deadly conundrum?”

Here Representative Bomgar’s public records request is nothing more than a

series of questions and observations, and are not identifiable records which the
Bureau of Narcotics is required to maintain. For these reasons, Representative
Bomgar’s request should be denied.

1.7 At the hearing Mr. Younger testified that he also prepared a memorandum to
Shannon Jones regarding the response of DPS to Bomgar’s request. (Video Part 1, 00:25:09 –
00:25:26) That memorandum was provided to the hearing officer by DPS for in camera review.
Younger also confirmed that he received and read Bomgar’s email of November 30th and did not
respond. (Video Part 1, 00:32:28 – 00:33:48)
R-17-062 Final Order Page 4 of 7

1.8 The hearing was the first time in this case that information was provided by DPS
Commissioner Marshall Fisher and DPS Executive Counsel Shannon Jones. Commissioner
Fisher testified that he read Dowdy’s proposed responses and concluded the document was not
appropriate for dissemination to the public. He consulted Jones and Younger about whether DPS
should produce the responses to Bomgar. (Video Part 1, 00:05:20 – 00:18:02)

1.9 DPS Executive Counsel Shannon Jones testified that Commissioner Fisher asked
whether DPS should produce Dowdy’s responses to Bomgar. (Video Part 1, 00:39:31 –
00:39:40) Jones testified she determined the responses were not public records. (Video Part 1,
00:37:35 – 00:37:42) Jones delegated the task of responding to Bomgar’s request to Younger
since he typically handles Public Records issues for the department. (Video Part 1, 00:44:30 –
00:44:58) Younger provided Jones with a memorandum, in which he concluded the request was
not valid, and a draft response denying the request. This is the same memorandum which was
provided to the hearing officer for in camera review and the same letter which was subsequently
sent to Bomgar. The memorandum proposed two options: “Option 1” - deny the request and
“Option 2” – produce the records. Jones agreed with Younger’s conclusions and decided to deny
the request for the reasons stated in the letter. (Video Part 1, 00:45:34 – 00:46:20) In her
testimony Jones steadfastly held to the conclusions set forth in that letter. (Video Part 1, 00:47:10
– 00:52:00)

II. CONCLUSIONS OF LAW

A. The Definition of “Public Record”

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 otherwise provided by
law. Section 25-61-2, Miss. Code of 1972. “Public records” are defined as all documents or
records “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, or required to be maintained by any public body.” Section 25-61-3(b). Section 25-
61-5(1)(a) mandates that “[n]o public body shall adopt procedures which will authorize the
public body to produce or deny production of a public record later than seven (7) working days
from the date of the receipt of the request for the production of the record.” Section 25-61-
5(1)(b) allows up to fourteen working days for production of public records when the public
body provides a specific, written explanation why the records cannot be produced within seven
days. Section 25-61-5(3) further 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 In his November 29, 2017 denial letter to Bomgar, Younger admits that Dowdy
“did prepare a response to [Bomgar’s] letter, but he did not release it because it is not a record
which his agency is required to maintain.” Dowdy’s written responses to questions posed by a
legislator about a known public safety crisis are certainly documentary materials used, prepared,
possessed and retained in the conduct, transaction or performance of the business, work, duty
and function of the Mississippi Bureau of Narcotics and its parent agency, the Department of
Public Safety. Dowdy’s written responses to Bomgar’s questions meet the definition of “public
R-17-062 Final Order Page 5 of 7

record,” and DPS made no assertion that they were exempt until after the preliminary report was
issued in this case. That issue is addressed below.

2.3 Rather, in his response, Younger focused on Bomgar’s June 12th email to Dowdy,
which posed a series of questions, and cited a prior case for the proposition that DPS is not
obligated to answer questions. This argument is disingenuous in light of every witness’s
admission that DPS possesses the very same public record Bomgar has repeatedly requested
since his November 3rd email to Mandy Davis. Bomgar has also made it repeatedly and
abundantly clear to DPS personnel that he seeks Dowdy’s written responses to his earlier
questions. Bomgar has requested a specific and easily identifiable record and has repeatedly
clarified and reiterated his request. No reasonable person who has read the correspondence in
this case can misunderstand the request.

2.4 Moreover, there is no authority in Mississippi law which implies that a record
must be “required to be maintained by a public body” in order for that document to qualify as a
public record. “Public records” are defined as all documents or records “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, or required to be
maintained by any public body.” Section 25-61-3(b) (emphasis added). The definition is clear
and unambiguous. The use of the conjunction “or” means each part of the definition separated by
commas is independent, and a document need not meet all conditions to qualify as a public
record. By contrast, the conjunction “and” does not appear in the definition. Younger’s
arguments to the contrary, set forth in the denial letter and the response to the complaint, simply
collapse when they run up against the plain language of the statute.

B. The Attorney-Client Privilege

2.1 In the Objection to the hearing officer’s Preliminary Report and

Recommendation, DPS cited, for the first time, an exemption to the Public Records Act. The
respondent asserted that, because DPS Executive Counsel Shannon Jones was copied on
Dowdy’s email, the attachment to that email, which Bomgar sought, was covered by the
Attorney-Client Privilege. Not only is this assertion untimely; it is also incorrect.

2.2 Analysis of this issue begins with the statutory exemption codified in Section 25-
1-102. The statute, in its entirety, reads as follows:

Records in the possession of a public body, as defined by paragraph (a) of Section

25-61-3, which represent and constitute the work product of any attorney, district
attorney or county prosecuting attorney representing a public body and which are
related to litigation made by or against such public body, or in anticipation of
prospective litigation, including all communications between such attorney made
in the course of an attorney-client relationship, shall be exempt from the
provisions of the Mississippi Public Records Act of 1983.

(emphasis added) While the statute encompasses two separate and distinct exemptions – attorney
work product and attorney-client communications – the respondent has asserted the latter. The
Attorney-Client Privilege is further defined in Rule 502, Miss. Rules of Evidence, and applies to
R-17-062 Final Order Page 6 of 7

“confidential communications made for the purpose of facilitating the rendition of professional
legal services to the client” and which are generally made between a client and a lawyer or
lawyer’s representative. See also Hewes v. Langston, 853 So.2d 1237, 1244 (Miss. 2003).

2.3 The email in question was included as Attachment “D” with the respondent’s
Objections to the Preliminary Report. The email was sent by Dowdy on Thursday, August 3,
2017, and addressed to Fisher, Davis, Jones and MBN Deputy Director Steven Maxwell. The
email reads as follows:

I wanted to have y’all review the attachments to this email because it deals with a
direct communication with Representative Joel Bomgars and I think we could
probably see this again. I want it to be thorough and spot on.

The first document are the questions he posed and the second document contains
the agency answers. I have had my resident experts helping formulate the
response but do not want to send unless it meets your approval. Please
recommend changes, deletions, and/or additions. [sic]

2.4 Nothing in Dowdy’s email indicated that the communication was confidential, nor
did he request legal services. Nothing in the email implied the existence of an attorney-client
relationship between Dowdy and Jones. Dowdy did not ask whether the responses were subject
to the Public Records Act, nor did he pose any other question seeking legal advice. Rather, the
content of the email suggests Dowdy was simply asking for editorial help and clearing the
responses with his boss prior to sending them to a legislator because he feared they would “see
this again” in the Legislature and the media, not as a result of litigation, or some other potential
matter requiring legal advice.

2.5 Furthermore, none of the testimony at the hearing indicated that any legal advice
was given to Dowdy regarding his responses. On the contrary, there was a clear consensus
among top executives at DPS that the responses should not have been publicly released to
Bomgar because they disagreed with the content, not because of any legal advice regarding the
content. It is equally evident that Dowdy did not send the email “for the purpose of facilitating
the rendition of professional legal services.” Simply including a lawyer in the list of recipients on
this correspondence does not make the communication privileged. Consequently, neither the
email nor the attached responses, are exempt from disclosure under the Public Records Act, and
they should have been provided to Bomgar in response to his request.

C. Liability

2.6 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.” 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
R-17-062 Final Order Page 7 of 7

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.

2.7 Based on the record in this case, the DPS employees responsible for responding to
Bomgar’s November 3, 2017, public records request, namely Shannon Jones and Jim Younger,
violated the Public Records Act by denying Bomgar access to a public record which is not
exempt and by failing to respond to his request within the period of time required by statute.

2.8 Jones and Younger have clearly acted in bad faith by failing to respond to a valid
public records request in a timely manner, by asserting a patently fallacious interpretation of the
statutory definition – that the document was not a public record simply because it was not a
document the public body was required to maintain, and by purposefully using that incorrect
interpretation of the law to refuse to produce the requested document they admitted to
possessing. These bad faith actions demand that Jones and Younger be fined to the full extent
allowed by law.

WHEREFORE, the Ethics Commission finds as follows:

3.1 Shannon Jones and Jim Younger violated Section 25-61-5, Miss. Code of 1972,
by denying Rep. Joel Bomgar access to a public record which is not exempt under the Act,
specifically, Dowdy’s written responses to Bomgar’s questions.

3.2 Shannon Jones and Jim Younger also violated Section 25-61-5, Miss. Code of
1972, by failing to respond to Rep. Joel Bomgar’s public records request dated November 3,
2017, within the period of time required by statute.

3.3 The Ethics Commission hereby imposes a civil penalty in the amount of $100.00
against Shannon Jones, in her personal capacity, and imposes a civil penalty in the amount of
$100.00 against Jim Younger, in his personal capacity, for the violations enumerated herein. The
penalty shall be paid to the General Fund of the State of Mississippi upon receipt of this Final
Order.

3.4 The Ethics Commission hereby orders the Mississippi Department of Public
Safety to produce to Rep. Joel Bomgar an exact copy of Dowdy’s written responses to Bomgar’s
questions within one (1) working day of the Department receiving this Final Order.

3.5 The Ethics Commission hereby orders the Mississippi Department of Public
Safety to refrain from further violations and to strictly comply with the Public Records Act.

SO ORDERED, this the 1st day of June 2018.

MISSISSIPPI ETHICS COMMISSION

BY: ______________________________
Tom Hood, Executive Director