Mississippi Advisory Opinions May 03, 2013: AGO 2013-00164 (May 03, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Jessie Edwards

SUBJ: Elections

SBCD: 69

TEXT: The Honorable Jessie J. Edwards

Mayor, Town of Coldwater

Post Office Box 352

Coldwater, Mississippi 38618-0352

Re: Candidate's Qualifying Petition / Public Records

Dear Mayor Edwards:

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

Issues Presented

Your letter states:

The Democratic Party of Mississippi has requested a copy of my petition for mayor of the Town of Coldwater. I am running for mayor as an independent candidate in the general election. Does the Democratic Party have statutory authority to see or have this information? Does the Democratic Party have a right to this information? Is this privileged information, which is privy or handled by the local election commission and town clerk? Does any citizen have a right to this information and under what condition(s)? What liability is there if the individuals who signed the petition are harassed or intimidated by local citizens, whom I am certain that, this information would be turned over to? If petitioners are harassed, what code or statutory law or code can be used to file charges against these individuals? What if identity thieves get these names, and addresses, then what?

Response

The qualifying petitions of independent candidates filed with municipal clerks are public records and may be obtained by anyone pursuant to the provisions of the Mississippi

Public Records Act of 1983.

Your questions regarding potential harassment and identity theft are hypothetical and do not present questions of law relating to the office of mayor. Therefore, pursuant to Mississippi Code Annotated Section 7-5-25 (Revised 2002), we cannot respond to those questions by way of an official opinion.

Applicable Law

The Mississippi Public Records Act of 1983 (the Act) is found in Sections 25-61-1 through 25-61-17 (Revised 2010).

Section 25-61-5 provides:

(1)(a) 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, if a public body has not adopted 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 seven (7) working days from the date of the receipt of the request for the production of the record.

(b) If a public body is unable to produce a public record by the seventh working day after the request is made, the public body must provide a written explanation to the person making the request stating that the record requested will be produced and specifying with particularity why the records cannot be produced within the seven-day period. Unless there is mutual agreement of the parties, in no event shall the date for the public body's production of the requested records be any later than fourteen (14) working days from the receipt by the public body of the original request.

(2) If any public record contains material which is not exempted under this chapter, the public agency shall redact the exempted and make the nonexempted material available for examination. Such public agency shall be entitled to charge a reasonable fee for the redaction of any exempted material, not to exceed the agency's actual cost.

(3) Denial by a public body of a request for access to or copies of public records under this chapter shall be in writing and shall contain a statement of the specific exemption relied upon by the public body for the denial. Each public body shall maintain a file of all denials of requests for public records. Public bodies shall be required to preserve such denials on file for not less than three (3) years from the date such denials are made. This file shall be made available for inspection or copying or both during regular office hours to any person upon written request.

"Person, " as used in Section 25-61-5, applies to artificial as well as natural persons and would include a properly constituted political party, Miss. Code Sec. 1-3-39 (Rev. 2005).

While several records are statutorily exempt from the provisions of the Act, we find no exemption for independent candidates' qualifying petitions.

We have previously opined that petitions seeking to have constitutional initiatives placed on our general election ballots are public records and must be available for inspection and duplication as required by the Public Records Act. MS AG Op., Helmert (February 12, 2010).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General