Fighting transparency

Some principles are worth fighting for, especially when someone else is ponying up the money to pay for the fight.

That seems to be the attitude of Mississippi’s Department of Public Safety, which has spent almost $18,000 so far on legal costs to try to avoid and now appeal a ruling that found the agency in violation of the state’s Public Records Act.

Republican state Rep. Joel Bomgar, who sits on a House committee that considers changes to the state’s drug laws, sent John Dowdy, the director of the state Bureau of Narcotics, an email in June 2017 asking him to respond to questions Bomgar had on the opioid epidemic, on using incarceration to punish drug-related crimes and other similar issues. Dowdy didn’t take offense at the request, as it was a follow-up to an amicable luncheon conversation the two had had.

A couple of months later, Dowdy drafted his responses and sent the document to the office of his boss, Public Safety Commissioner Marshall Fisher who told Dowdy not to send the document.

Bomgar persisted, though, once the Madison lawmaker learned from Dowdy himself that such a document existed, eventually filing a complaint with the state Ethics Commission, which enforces the Public Records Act, to get it. The Ethics Commission agreed with Bomgar that the document was a public record. It also sent a message that government employees can’t give state lawmakers or anyone else the runaround when they are exercising their rights. The commission fined two DPS attorneys $100 each, the puny maximum the law allows.

Rather than accept the reprimand, Fisher’s agency is appealing. And because Attorney General Jim Hood has washed his hands of the case, DPS has hired private counsel to handle it, which will rack up almost assuredly several thousand more dollars in legal bills.

Fisher et al. claim there are principles at stake. First, they object to the idea that documents still in drafting stage are public record. Second, they don’t think it’s fair to personally penalize attorneys for giving legal advice, even when it’s wrong.

On the first objection, although they have somewhat of an argument, it’s not a compelling one. The courts and the Ethics Commission have already established that written communications by government officials and other employees, unless those communications fall under certain exempt categories, are public records. That’s why emails sent or received by government employees in the scope of their job are fair game to request.

The second objection might have a little more merit. Unless the attorneys were personally given the authority to fulfill or deny Bomgar’s public records request, they shouldn’t be the ones penalized for the denial. More properly, as Bomgar himself argues, it should be Fisher.

Although we’re rooting for Bomgar in this case, it needs to be noted, as he has, that most citizens are not this persistent, nor do they have the money to fight government officials who try to stonewall on public records requests. Bomgar, who became wealthy as a high-tech entrepreneur before getting into politics, claims he has spent $10,000 of his own money on legal fees over the course of this nearly two-year-long fight.

If Fisher and those who work in the Department of Public Safety had to do the same, they would have thrown up the white flag long ago.

 

 

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