July 18, 2013 10:16:26 AM
OXFORD -- Suppose computers and the Internet were not a new thing. Suppose they existed and were even commonplace back in 1817 when Mississippi was created. As things developed and it became clear that both the law and the public policy of the state would require that public records would be open to public inspection, do you think the Legislature would have created or allowed "pay walls" that required citizens to ante up?
In three words, "Of course not."
Whenever members of the Legislature have listened to their better angels, they have realized that open records are foundational to good government.
It's simply not a democracy if people can't know what laws are being considered and voice an opinion if they so desire. People can't be judges of whether their elected officials are good stewards unless they are able to see a town's income and expenditures. People can't know if their courts are just if they can't see pleadings, decisions and, in criminal cases, sentences.
There are situations in which it's in the public's interest for records to remain closed, and the law provides for that. But otherwise, it's delusional to describe ourselves as free people if government can seal records to protect itself.
Way back in 1983 -- before there home computers and well before the Internet -- the Legislature synthesized existing open records provisions. The better angels were flying. Witness the words of the statute as it appears today: "It is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act. 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 agency increases its use of and dependence on electronic record keeping, each agency must ensure reasonable access to records electronically maintained, subject to the rules of records retention." (emphasis added)
But a funny thing has happened en route to fulfillment of the admonition to be as open as possible.
In sum, it has been the "private vendor."
Town and county clerks, supervisors and mayors have been no different than other individuals and private companies. All -- or almost all -- balked at these mysterious things called computers and all their digital data management whiz-bangery. Fear not, though, entrepreneurs stepped in to manage the transition -- for a price.
Further, some made glowing promises of how this change "was going to pay for itself," perhaps even create a new and painless revenue source.
According to seethespending.org, one company billed Mississippi counties participating in that database (and not all do) $1.1 million in 2010 to provide records management services. Millions more has been paid by the state, by cities and by state courts (which are not directly answerable to the Open Records Act).
While almost all other states and several counties heeded the "open as possible" admonition, some counties and state courts did not. If anyone wants to see their records for free -- as the law requires -- a trip to city hall or the courthouse is still required. To see them online requires payment of a "convenience fee" and, sometimes, a per-page charge, too.
Now state law is clear that if a public body hires a private firm to create or manage public records, the contract must include public access. It just doesn't say "free."
So many offices have jumped on so-called "convenience fees." The rationale is that people should pay for looking at records at home they could see for free at city hall or the courthouse.
Again, the law does not expressly exclude such fees, but it certainly doesn't require them. That makes charging for public information purely a policy decision. Local officials who impose fees can remove them at any time, following the lead of other states and the vast majority of Mississippi agencies.
To do so would certainly be in the spirit of the mandate to be as open as possible and, again, there was never any thought of charging people to look at public records until computers and the Internet came along.
It's time for the better angels to spread their wings and fly again -- to remind officials at all levels that if they want the people's trust (and votes) they should remember what democracy is about. Despite what database management system sellers say, it's not about making people pay to find out how their money was spent.