BEFORE THE MISSISSIPPI ETHICS COMMISSION MOLLIE BRYANT VS. ALCORN STATE UNIVERSITY COMPLAINANT CASE NO. R-15-038 RESPONDENT FINAL ORDER This matter came before the Mississippi Ethics Commission through a Public Records Complaint filed by Mollie Bryant against Alcorn State University. The Ethics Commission has jurisdiction over this matter pursuant to Section 25-61-13, Miss. Code of 1972. A Preliminary Report and Recommendation of the hearing officer was prepared in accordance with Rule 5.6, Rules of the Mississippi Ethics Commission. The respondent did not object to the Preliminary Report and Recommendation and has thereby waived a right to a hearing on the merits. Accordingly, the hearing officer enters this Final Order in accordance with Rule 5.6, Rules of the Mississippi Ethics Commission. I. FINDINGS OF FACT 1.1 This public records complaint was filed by Mollie Bryant, a reporter with The Clarion-Ledger newspaper in Jackson, Mississippi against Alcorn State University ( ASU ). On October 5, 2015, Ms. Bryant emailed a public records request to ASU seeking the number of [ASU] employees who resigned from 2010 through 2015, broken down by year; and the number of ASU employees who were terminated from 2010 through 2015, broken down by year. Clara Ross Stamps, Vice President for Marketing and Communication for ASU responded within 32 minutes of receiving the request, stating Alcorn does not maintain records responsive to this 1.2 Bryant followed up with Stamps via email on October 7, 2015, asking whether ASU tracked the number of employees removed from payroll each year. According to Bryant, ASU did not respond to this email. Bryant also maintains she attempted to contact the communications department by telephone to discuss alternative methods to obtain documents containing the information she sought, but she did not receive a return call. 1.3 On or about October 12, 2015, Bryant called ASU s Human Resources Department in order to discuss alternative ways to obtain the data she sought. According to Bryant, a human resources employee described what she called termination reports which contained the basic information sought by Bryant. The employee indicated these termination reports were produced quarterly by the Human Resources Department and given to the payroll division; were maintained by the university for no more than three years; and included an employee s reason for separation and date of separation. 1.4 On October 15, 2015, Ms. Bryant submitted an email to the communications department at ASU which contained the following records request:
R-15-038 Final Order Page 2 of 5 All termination reports as provided to the payroll department from 2010-2015. I make this request with the understanding that all names of personnel would be redacted. Within 68 minutes, the ASU Marketing and Communication s Department responded stating, Alcorn does not maintain records responsive to this Dissatisfied with ASU s response, Ms. Bryant filed this public records complaint against ASU. 1.5 In response to the complaint, ASU acknowledges receipt of the October 5, 2015 public records request submitted by Bryant, but reiterates that it does not maintain records which include all of the information sought by Bryant. ASU asserts that information for the five year period covered by Bryant s initial request is contained in personnel files and other records, and that ASU is not required to create a document responsive to the public records 1.6 ASU also acknowledges receipt of the October 15, 2015 public records request submitted by Bryant, and further acknowledges that Ms. Bryant s request was denied by Clara Ross Stamps, the Vice President for Marketing and Communication. Stamps admitted sending the denial to Bryant which simply stated Alcorn does not maintain records responsive to this Stamps also claims that Bryant called after receiving the written denial and that the two had the following exchange: Ms. Bryant stated that she had spoken with HR and that HR submits termination reports to Payroll. I stated to Ms. Bryant that I had spoken with HR several times and that they did not have records responsive to her She stated that she would call HR and Payroll back for the records. I explained to her that my office was the office responsible for public records and that if she contacted any other office then they would direct her back to my office. I stated that I would contact HR and Payroll to determine if they maintained records responsive to her The Complaint was filed before I could verify whether or not the University maintained records responsive to Ms. Bryant s The response explains that Stamps unsuccessfully attempted to contact employees in ASU s Payroll Office on October 15 and 16 to determine whether that department maintained records responsive to the The response also indicates that Stamps eventually discussed these reports with an employee of the Payroll Office, but the date that conversation took place is unclear. 1 1.7 ASU asserts the university never objected to providing public records to Ms. Bryant, given that they were in the process of trying to locate records responsive to the request when Bryant filed her complaint with the Ethics Commission. To clarify the record, Bryant signed her complaint on October 15, 2015. The Ethics Commission received the complaint on October 19, 2015 and that same day mailed a copy of the complaint to the president of ASU as well as Stamps. The certified mailing receipt for the copy of the complaint mailed to Stamps 1 Stamps also references a similar public records request submitted by Bryant, which sought the number of retirees from ASU from 2010 through 2015. Although not related to the complaint in this case, ASU created a record for Bryant in response to that request because ASU did not possess documents which contained all of the information sought by Bryant.
R-15-038 Final Order Page 3 of 5 reflects the complaint was delivered on October 26, 2015. This date is also 7 working days from the date Bryant made her public records request on October 15, 2015. There is no indication ASU attempted to notify Bryant that the termination reports existed, nor were these reports provided to Bryant by October 26, 2015. 1.8 With the response, ASU provided termination reports which are actually titled Quarterly Separations Reports covering a three year period which were responsive to Bryant s II. CONCLUSIONS OF LAW 2.1 The Public Records Act declares that public records shall be available for inspection or copying by any person unless otherwise provided by law. Section 25-61-2, Miss. Code of 1972. Public records are defined as all documents or records having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body. Section 25-61-3(b). A public body must provide access to public records upon request of any person, unless a statute or court decision specifically declares a public record to be confidential, privileged, or exempt. Section 25-61-11. 2.2 Section 25-61-5(1)(a), Miss. Code of 1972, of the Act mandates that [n]o 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. Section 25-61-5(1)(b) allows up to fourteen working days for production of public records when the public body provides a specific, written explanation why the records cannot be produced within seven days. The Public Records Act is clear that a public body has a duty to either provide records or a written denial after receiving a valid public records 2.3 Both requestors and public bodies have responsibilities under the Act. The public records process can function properly only when both parties perform their respective responsibilities. A requestor has a duty to request identifiable records and pay the actual costs of complying with the request, and a public body has a duty to promptly provide access to all nonexempt public records. Both parties have an obligation to communicate in good faith. See Rule 4 and comments, Model Public Records Rules. 2.4 Moreover, where a public body initially denies a public records request but then discovers that records responsive to the request existed at the time of the denial, the public body should notify the requestor in writing and provide a brief explanation of the circumstances. See Comment 12 to Rule 4 of the Model Public Rules. However, the public body is not required to provide responsive records which are obtained or created by the public body after the date of the 2.5 Based on the record in this case, ASU timely and correctly denied the initial public records request submitted by Bryant. ASU did not maintain documents in the format sought by Bryant. Moreover, ASU was not required to respond to the initial follow-up emails sent by Bryant to the communications department which simply asked questions of the
R-15-038 Final Order Page 4 of 5 department. Nonetheless, the human resources department communicated with Bryant in good faith when contacted concerning the records maintained which could be responsive to Bryant s When Bryant submitted her second request on October 15, 2015, she asked for specific reports which had been described by the human resources employee. Ms. Stamps denied the request in such a fashion that it is doubtful she had sought to confirm any documents responsive to the request existed. However, Stamps had previously received two somewhat similar requests from Bryant so it is plausible that she was simply mistaken in her belief that ASU did not have documents responsive to the 2.6 Upon receiving the denial, Bryant contacted Stamps by telephone to discuss the request and inform Stamps that other ASU employees had described the reports sought in the public records At this point, Stamps should have diligently sought to confirm the existence of the reports and communicated, in writing, to Bryant whether the reports in fact existed. Moreover, if Stamps needed more than 7 working days to respond to the request, Section 25-61-5(1)(b) provides a method for obtaining additional time to respond. 2.7 Section 25-61-15 states that [a]ny person who shall deny to any person access to any public record which is not exempt from the provisions of this chapter or who charges an unreasonable fee for providing a public record may be liable civilly in his personal capacity in a sum not to exceed One Hundred Dollars ($100.00) per violation, plus all reasonable expenses incurred by such person bringing the proceeding. Based on the record, a suspended civil penalty is appropriate in this case. III. CONCLUSION 3.1 The Ethics Commission finds that Alcorn State University violated Section 25-61- 5 of the Public Records Act by denying Mollie Bryant s October 15, 2015 public records request on the basis that no documents existed when in fact Alcorn State University maintained records responsive to the public records request; 3.2 The Ethics Commission finds that Clara Ross Stamps violated Section 25-61-5 by denying Mollie Bryant s October 15, 2015 public records request on the basis that no documents existed when in fact Alcorn State University maintained records responsive to the public records request; 3.3 The Ethics Commission finds that Clara Ross Stamps denial of the public records request is a violation of Section 25-61-5 which warrants imposition of a civil penalty in the amount of $100, the payment of which shall be suspended in its entirety; 3.4 The Ethics Commission orders Alcorn State University, through its officials and employees, to strictly comply with the statutory deadlines and procedures set forth in Section 25-61-5, and find that further violations may result in the imposition of additional penalties, including payment of reasonable costs incurred by the person seeking public records from the university.
R-15-038 Final Order Page 5 of 5 SO ORDERED, this the 29 th day of January, 2016. CHRIS GRAHAM, Hearing Officer Mississippi Ethics Commission