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MIssIssIPPI ETHICS COMMISSION Post Office Box 22746 Jackson, Mississippi 39225-2746 ‘Telephone: 601-359-1285 www.ethicsstate.ms.us @ Telecopier: 601-359-1292 February 1, 2019 VIA U.S. MAIL Ms. Heather Smith Board Attomey, City of Bay St. Louis 1300 25" Avenue, Ste. 204 Gulfport, MS 39501 Re: Public Records Case No. R-18-036; Wells vs. City of Bay St. Louis Dear Ms. Smith, Enclosed please find a copy of the Preliminary Report and Recommendation in the above referenced case. This Preliminary Report and Recommendation was prepared in accordance with Rule 5.6, Rules of the Mississippi Ethics Commission, and was presented to the Ethies Commission at its open meeting on Friday, February 1, 2019. Within five (5) business days of receiving a copy of this Preliminary Report and Recommendation, any party may file specific written objections to the Preliminary Report and | Recommendation. In the event either party files an objection to the Preliminary Report and Recommendation that would necessitate a hearing before the hearing officer, the undersigned hearing officer proposes to set this matter for hearing at 10:00 a.m., on Wednesday, April 24, 2019, at the offices of the Mississippi Ethics Commission in Jackson, Mississippi. If a hearing i ‘matter, the parties will be notified by a Notice of Hearing issued by the hearing officer. If no objection to the Preliminary Report and Recommendation is received within the time provided above, the right to a hearing in this matter shall be deemed waived and the undersigned hearing officer shall issue a Final Order substantively identical to this Preliminary Report and Recommendation, sincerely, SONIA SHURDEN Hearing Officer, ippi Ethics Commission ce: Mr. David Wells 109 Janell Street Bay St. Louis, MS 39520 Enclosure ssilk BEFORE THE MISSISSIPPI ETHICS COMMISSION DAVID WELLS COMPLAINANT vs. PUBLIC RECORDS CASE NO. R-18-036 CITY OF BAY SAINT LOUIS RESPONDENT PRELIMINARY REPORT AND RECOMM! ATION This matter came before the Mississippi Ethics Commission through a Public Records Complaint filed by David Wells against the City of Bay Saint Louis (the “city”). The Ethies Commission has jurisdiction over this matter pursuant to Section 25-61-13, Miss. Code of 1972. This Preliminary Report and Recommendation is prepared in accordance with Rule 5.6, Rules of the Mississippi Ethics Commission. Within five (5) business days of receiving a copy of the Preliminary Report and Recommendation, any party may file specific written objections to the Preliminary Report and Recommendation. Failure by the respondent to file an objection waives the respondent's right to a hearing on the merits and will result in the entry of a Final Order substantively identical to this Preliminary Report and Recommendation, I. PROPOSED FINDINGS OF FACT 1.1 Mr, David Wells submitted a public records request for a current list of the city’s, litigation matters. Mr. Wells states he handed his request to the Bay Saint Louis City Clerk, Sissy Gonzales at the council’s open meeting on Tuesday, August 7, 2018. Mr. Wells states no one from the city contacted him until August 27, 2018, when he received a phone call from the Deputy City Clerk, Linda Garcia, telling him they “had something for me to pick up.” He then received a letter dated August 27, 2018 denying his request because “no such record. ..exists to satisfy this request and no such record is required to be maintained.”" 1.2 Inresponse, the city states it responded to the request as allowed pursuant to current city policy. The city states that its policy contains reasonable procedures regarding the cost, time, place and method of access for public records requests. The city’s current policy provides: 2. The City shall produce or deny all requests for production of documents or records within fourteen (14) working days of the request... . 1.3 However, in its response the city recognizes that its policy does not comply with the Public Records Act as recently amended, and admits that “the only noncompliance with the Public Records Act here was the City’s lack of ‘written explanation to the person making the request” as to why the records could not be produced within seven working days.” The city further states that it is currently planning “to review and revise its policy and procedure with regard to public records requests and responses, updating several provisions consistent with recent changes ! Mr. Wells did receive the requested information from Mayor Favre, who he called upon receiving the denial. Mayor Fayre verbally provided the requested information the same day. 18-036, Preliminary Report and Recommendation Page 2 of 3 by the Mississippi Legislature to the Mississippi Public Records Act” and expects to present a revised policy to its city council before the year’s end. I, PROPOSED CONCLUSIONS OF LAW 21 sippi Public Records Act of 1983 (the “Act”) declares that public records shall be available for inspection or copying by any person unless a statute or court decision “specifically declares” a public record to be confidential, privileged, or exempt. Section 25-61- 5(1)(a) mandates that “[nJo 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 receipt of the request for the production of the record,” Section 25-61-5(1)(b) only allows up to (14) fourteen working days for production of public records when the public body has already provided, within the statutory seven (7) working day period, 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.” As a result, a public body has only seven (7) working days from receiving a public records request to provide a denial in writing, 2.2 Based on the record before the Ethics Commission, it appears the city provided a denial, in writing, on August 27, 2018 — the fourteenth working day after receiving Ms. Wells” request. AS a result, the city’s denial was untimely, and the city technically violated the Act. 2.3 Itshould be noted, however, that aside from the timing, the denial itself was proper. When a public body receives a request for documents that do not exist, the Public Records Act “does not require a public body to create a record in order to respond to a records request.” Shepard, Miss. AG Opinion No. 2011-00027 (Feb. 4, 2011), citing Brown, AG Op. No. 2007- 00514 (Oct. 10, 2007) (The public records act does not require a public body “to create documents that do not already exist."); Robertson, AG Op. No. 2006-00463 (Oct. 13, 2006) (“This office has often opined that the Public Records Act does not obligate a public body to create a record that does not already exist.”); and Ray, AG Op. No. 2005-0560 (Dec. 16, 2005) (“A public body is under no obligation to create a record that does not already exist.”). Mississippi Model Public Records Rules Comment 4.3(5) to Rule 4 is consistent with these AG Opinions: “A public body is not obligated to create a new record to satisfy a records request.” See also, Comment 4.4(4)(a) to Rule 4, Mississippi Model Public Records Rules II. PRELIMINARY RI MMENDATION ‘The undersigned hearing officer proposes to recommend the following: 3.1 The Ethies Commission should find that the City of Bay Saint Louis violated Section 25-61-5 by failing to provide a written denial to Mr, David Wells within seven (7) working days of receiving his public records request. 3.2 The Ethics Commission should order the City of Bay Saint Louis, through its officials and employees, to strictly comply with the statutory deadlines and procedures set forth in Section 25-61-5