Keeping legislative contracts secret seen as unusual practice

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National open government and public records experts say a policy adopted by the Mississippi Legislature this week keeping all legislative contracts secret from the public makes the state an exception to the rule.

“With regard to general procurement law, this would be an extreme outlier,” Emily Shaw, a senior analyst for the Sunlight Foundation, said when asked how Mississippi’s policy compares to other states’ practices. The Sunlight Foundation is a national, nonpartisan, nonprofit organization that promotes accountable and transparent government and politics.

Mississippi State Capitol

Mississippi State Capitol

The House Management Committee on Tuesday voted to adopt a policy that makes all contracts entered into by the state Legislature confidential, despite the fact all other state agencies’ contracts and procurement processes are public record.

The 2008 Mississippi Accountability and Transparency Act created a searchable website run by the Department of Finance and Administration where taxpayers can search data on state agencies’ contracts, budgets and revenue.

Citing state law that says the Legislature has the “right to determine the rules of its own proceedings and to regulate public access to its records,” the House Management Committee used a voice vote to pass the policy, which states all contracts will be kept confidential.

The exception is only when the committee would consider the release of the records “necessary for execution of the contract.”

In a statement released on Friday, Starkville Daily News Publisher Don Norman, president of the Mississippi Press Association, said, “We are disappointed in the House Management Committee’s decision to keep signed contracts and related costs private from the taxpayers of Mississipp. It is always very troubling when the leaders elected to represent us determine the better course of action is to not operate transparently.”

“The Association feels strongly that just because the state legislature can exempt itself from parts of the state Public Records Act does not mean that it should,” Layne Bruce, MPA Executive Director, said in the statement. “One of the most important responsibilities of our elected leaders involves the education of this state’s children. Taxpayers and parents in particular are entitled to maximum transparency on the issue.”

Shaw acknowledges that in a number of states legislators at times receive certain exemptions from the law.

“However, in Mississippi as in nearly every other state, legislators are prohibited from using state resources for personal benefits … to benefit themselves or businesses of which they are associated,” Shaw said. “If it is impossible to look at contracts, they make it impossible to ensure that law is being followed.”

Surrounding states have a variety of approaches to how they handle legislative records:

• In Alabama, all legislative bodies are “presumptively” subject to the public records law, although the law itself does not specifically state so, according to the Reporters Committee for Freedom of the Press.

• The Louisiana Legislature is covered by the public records law. In one case, however, the court held that legislative work files related to two bills from prior sessions were privileged records.

• In Tennessee, records are considered on a case by case basis. Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said her experience has been that when a reporter makes a request for legislative records, they’ve been fulfilled.

“It depends on who the custodian of the records is and what the record is in terms of confidentiality,” she said.

Fisher went on to say she doesn’t think a policy like the one adopted in Mississippi would hold ground in Tennessee.

“That’s outrageous … I don’t think the Tennessee Legislature would sign a contract spending taxpayer money and then claim the contract is confidential,” Fisher said. She noted that the Tennessee constitution also reaffirms the right for citizens to “essentially know what their government is doing.”

Speaker of the House Philip Gunn did not respond to repeated requests for comment from Mississippi Today on the House Management Committee’s decision to pass the policy. Mississippi Today also got no response from Lt. Gov. Tate Reeves on the policy. The Senate Rules Committee will consider adopting the same policy at its Nov. 23 meeting.

Sen. Terry Burton, R-Newton, whose Rules Committee is expected to pass an identical policy at its next meeting, said it’s longstanding practice not to release contracts.

“As a matter of fact, if I were going to make available any contract to the public, it’d be this one,” Burton said. “It’s just so innocuous. But the policy is the policy.”

According to legislative leaders in Mississippi, only records related to travel expenses are considered to be public. Also, legislative and staff salaries are published annually in the auditor’s financial report.

The Georgia Legislature operates in some ways similarly to Mississippi, also exempting itself from openness requirements.  Attorney David Hudson said while draft bills and committee hearings are open, he has never known the Legislature to honor an Open Records Act request.

Under Mississippi’s new policy, even members of the Legislature do not have a right to copy or share details of these contracts. They may only read or review them.

The House Management Committee, which approves contracts entered into by the House of Representatives, used a voice vote Tuesday to pass the policy. The policy states “All contracts entered into by the House Management Committee shall be confidential and shall not be released to any person or entity, except as specifically directed by the House Management Committee only when the committee deems necessary for the execution of the contract.”

The policy was passed after Mississippi Today submitted a public records request for the state’s contract with EdBuild, the New Jersey-based nonprofit it hired to analyze the state’s education funding formula. Rep. Jay Hughes, D-Oxford, said he had also made requests for a copy of the contract.

House Management Committee chairman Greg Snowden, R-Meridian, told Mississippi Today in an email that the new policy was not related to the public records request made by the news organization.

Rep. Greg Snowden, R-Meridian

Mississippi House

Rep. Greg Snowden, R-Meridian

“The policy clarification we adopted today was prompted solely by requests from members to review the EdBuild document,” Snowden wrote. “We had no policy specifically relating to members’ access to and treatment of confidential information.”

“We were at a loss as to the appropriate manner in which to present the requested information to members,” Snowden continued.  “So, our counsel (House and Senate) advised that we needed to adopt a clarified policy to allow members the access to which we believe they are entitled.”

“That is what we did,” he wrote. “That is all we did.  We did not change the longstanding practice as to the nondisclosure of the specific terms of legislative contracts.”

Snowden defended the committee’s action further: “I would be remiss if I did not remind you that this action was taken in an open meeting, at a regularly scheduled monthly meeting of the Management Committee. People other than committee members (including the media) were allowed to be present. Indeed, we welcome your attendance. We acted entirely above board and in the open.  We did not go into executive session to discuss this, although we legally could have done so.”

The action comes as a select group of state legislators have been meeting to review spending procedures, including contracting, by a number of state agencies.