Mississippi Advisory Opinions February 12, 2010: No. 2010-00062 (February 12, 2010)

No. 2010-00062.

Dear Mr. Helmert:

Attorney General Jim Hood has received your request and assigned it to me for research and reply.

1. Are initiative petitions subject to disclosure under the Mississippi Public Records Act?

2. Are the signatures of persons signing the petitions, including the circulator, subject to disclosure under the Public Records Act?

3. If petitions are subject to disclosure under the Public Records Act, is any information contained on the petition subject to exemption?

4. May a request for public records be transmitted to the requestor in electronic format rather than paper copies?

Miss. Code Ann. Section 25-61-2 (1972) reads as follows:

It is the policy of this state that public records shall be available for inspection by any person unless otherwise provided by this chapter; furthermore, 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.

Miss. Code Ann. Section 25-61-5 (1972) reads in pertinent part as follows:

(1) Except as otherwise provided by Sections 25-61-9 and 25-61-11, all public records are hereby declared to be public property, and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning the cost, time, place and method of access, and public notice of the procedures shall be given by the public body, or, in the event that a public body has not adopted such written procedures, the right to inspect, copy or mechanically reproduce or obtain a reproduction of a public record of the public body shall be provided within one (1) working day after a written request for a public record is made. No public body shall adopt procedures which will authorize the public body to produce or deny production of a public record later than fourteen (14) working days from the date of request for the production of such record.

Miss. Code Ann. Section 25-61-10 (1972) reads in pertinent part as follows:

(2) A public body shall provide a copy of the record in the format requested if the public body maintains the record in that format, and the public body may charge a fee which must be in accordance with Section 25-61-7.

Unless there exists a specific exemption which would prevent their disclosure, records in the possession of a public body are open and are to be available for public inspection and duplication. See MS AG Op., Ray (December 16, 2005), MS AG Op., Minniece (May 30, 2003).

Initiative petitions are designed by the Secretary of State in accordance with Miss. Code Ann. Section 23-17-19 (1972). We find no information on the example petition you have provided to us to be exempt under the Mississippi Public Records Act. Accordingly, as a matter of state law, such petitions are public records and must be available for inspection and duplication as required by Mississippi Public Records Act.

Therefore, yes is the answer to your first two questions and no is the answer to the third.

In response to your fourth question, Section 25-61-10 requires that public records be furnished to the requestor in electronic format if the agency maintains the record in that format. If the requestor requests the records be provided in an electronic format and the agency maintains them in such format, rather than paper copies, then it must do so.

As you are aware, the Attorney General's Office may only issue official opinions with respect to state law. Based on our conversations with respect to this opinion, you are aware that there is presently litigation ongoing with respect to public disclosure of certain information contained on initiative petitions. If the federal courts issue a decision which impact on state law regarding disclosure of public records, the Secretary of State may need to revisit this issue.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Reese Partridge

Assistant Attorney General