March 13, 2019– Mary Greeley News – A cash-strapped state agency is poised to spend tens of thousands of dollars fighting a records request by a Mississippi state representative.
The Department of Public Safety and Rep. Joel Bomgar have grappled for more than a year over a letter written by the state’s top drug cop.
Bomgar emailed John Dowdy, the director of the Mississippi Bureau of Narcotics, with questions and observations about Mississippi drug policy.
Dowdy prepared a letter and sent it to DPS officials for review, but the commissioner nixed its release.
However, DPS told Bomgar that the letter existed, so Bomgar filed a records request for that document, titled: “Rep Bomgars Answers-Final.docx.”
DPS denied the request.
Bomgar filed a complaint with the Mississippi Ethics Commission, which ruled against DPS and fined two of the agency’s attorneys $100 each.
Now, DPS — which has repeatedly told lawmakers it is drastically underfunded — has spent $17,737.50 to fight the case in Hinds County Chancery Court.
They will likely spend much more.
The attorney representing DPS said the agency may appeal the decision further if it loses — and DPS could end up covering Bomgar’s legal fees, too.
Neither side is bowing out, with both saying the outcome could have serious implications for every state agency and how they respond to records requests.
Bomgar said it started out with a simple desire to be a better-informed legislator.
“In the Legislature, we are constantly told by agencies that they’re frustrated we don’t consult with them more before making law,” Bomgar said.
Bomgar, who sits on the House Drug Policy Committee, and Dowdy ate lunch at a billiards sports bar in Byram in June 2017.
“We had a great lunch catching up on the opioid epidemic, drug policy in Mississippi and a variety of other issues,” Bomgar said.
Bomgar had a few unanswered questions, though, and a few days later he sent an email to Dowdy.
The email was a series of questions and observations, touching on drug dealers “fighting over turf,” the economics of the drug trade, and whether prison hurts or helps people.
“I will be working on getting you some ‘answers’ to these questions,” Dowdy replied.
Bomgar emailed Dowdy from time to time, checking on the status of Dowdy’s response.
In August, Dowdy created a document titled “Rep Bomgars Answers-Final.docx” which he sent to the DPS Commissioner’s office for review.
DPS Commissioner Marshall Fisher told Dowdy not to send it.
The whole issue nearly fizzled out.
DPS was not legally obligated to send Bomgar anything.
The agency — and every other state agency — is not required to answer general questions, even if they’re asked by a state representative.
In September, Bomgar emailed again, and Dowdy hinted that a document related to Bomgar’s questions existed.
Dowdy apologized for his delay and wrote: “Because of the magnitude of the problems surrounding the Opioid Crisis and the extensiveness of your inquiry, I was compelled to run our response through Commissioner Fisher’s Office.”
Dowdy said DPS Chief of Staff Mandy Davis would reach out to him.
A month later, Bomgar emailed again about the meeting.
Another month after that, on Nov. 3, Bomgar met with Davis in her office.
Bomgar said Davis confirmed the existence of a document written by Dowdy.
“That was the point at which I filed a public record request to get the document that was written to me, for me, answering my questions, with my name on the document,” Bomgar said.
Two weeks passed, and Bomgar emailed her again.
“I wanted to make sure nothing had fallen through the cracks,” Bomgar wrote. “Please let me know the status. Thank you so much and have a great weekend!”
Davis replied she was “unable to accommodate” his request and referred him to another DPS attorney, Jim Younger.
Younger sent a letter to Bomgar denying the records request.
Bomgar told the Clarion Ledger he was confused by the denial.
“How am I supposed to make informed drug policies in the Legislature if I can’t even get a document with answers to my questions from the exact agency that is supposed to be responsible for drug policy in Mississippi?” Bomgar said. “…Why would any agency want laws being made without lawmakers being aware of what’s happening on the ground of what’s really going on?”
Bomgar said he realized DPS would not give him the letter — “no matter what the law said.”
Bomgar filed a complaint with the Mississippi Ethics Commission, which ruled in his favor and upheld the decision upon appeal by DPS.
The commission found that: “Bomgar has requested a specific and easily identifiable record and has repeatedly clarified and reiterated his request. No reasonable person who has read the correspondence in this case can misunderstand the request.”
The Ethics Commission also fined two DPS attorneys $100 each.
Up until this point, the Mississippi Attorney General’s Office had been representing DPS.
But in June, Attorney General Jim Hood wrote a letter to the Ethics Commission and DPS, saying his office would defend neither agency in further legal action.
He urged reconciliation “before additional and significant resources are spent.”
DPS turned over the letter written by Dowdy to Bomgar (and has since sent it to the Clarion Ledger), but is still fighting the Ethics Commission decision.
The agency hired private counsel to appeal it to Hinds County Chancery Court.
What’s at stake?
Tommy Whitfield, the private attorney representing DPS, said this case is about far more than just the $200 in fines or the Dowdy letter anymore.
“There are very few public records cases out there,” Whitfield said. “…All state agencies are going to be interested in the outcome of this appeal.”
According to Whitfield, there are two important points that need to be hashed out: At what point does a draft document become a public record? And what process is due to government employees before they are sanctioned?
Whitfield said the letter written by Dowdy was not something he would do in the normal scope of business and the letter wasn’t finished.
When does a draft document — or a partially finished policy — become a public record that must be maintained, Whitfield asked, and when can it be deleted?
In a filing to the Ethics Commission, DPS put it this way: “Where is the line between public record and trash and do we begin to hoard it for the benefit of the citizen?”
Whitfield said DPS is also appealing the case to protect state employees from being sanctioned without due process — something that seriously concerned Hood.
In his letter declining to represent DPS or the Ethics Commission, Hood noted that neither of the attorneys sanctioned were given enough notice that they “were parties to the proceedings, targets of the hearings, or were in jeopardy of losing their personal property.”
The attorneys — Younger and Shannon Jones — did appear at the hearings, Hood wrote, but as witnesses.
Younger was fined for denying access to a public record, but Hood felt Younger was only providing legal advice on how to respond to the records request.
“If true, the fine raises much broader concerns for hundreds of government and private attorneys providing advice to state, county, and municipalities on public records matters,” Hood wrote.
Nowhere in Hood’s letter does he dispute the core issue: that DPS wrongfully withheld a public record from Bomgar.
Rather, Hood urged DPS to drop its appeal as long as the Ethics Commission withdrew the sanctions against the attorneys.
The Ethics Commission did not withdraw the sanctions.
DPS appealed the decision to Hinds County Chancery Court. Bomgar then filed a cross-appeal.
As part of his cross-appeal, Bomgar is asking that Fisher, as the person who ultimately denied the records request, be sanctioned.
‘An insane runaround’
For Bomgar, this case has also come to encompass much more than the letter written by Dowdy.
“This records request at this point represents all the frustrations that any Mississippian has ever had getting a government agency to obey the law. It’s time in Mississippi that we make it clear that the people enforcing the law also have to obey the law,” Bomgar said.
DPS did not return numerous phone calls or emails, Bomgar said. He called DPS’ prolonged legal battle over his records request “an insane runaround that was custom built to make sure that the vast majority of Mississippians would just give up.”
DPS could eventually spend tens of thousands of dollars fighting the case, especially because Bomgar now wants his legal fees paid if he wins.
Bomgar said he has already spent $10,000 in legal fees.
“I’m extremely confident that I will prevail. At every step of the way, it has been reaffirmed that … the document that was created for me was a public record,” Bomgar said.
Bomgar was more than happy to pay his own legal fees up until this point, he said, but if DPS wants to continue this fight, they should be held responsible.
As someone who founded his own company before being elected to the Legislature, Bomgar called the decision to spend thousands of dollars appealing $200 in fines “unconscionable and irresponsible.”
“That would never happen in the private sector,” Bomgar said. “…the Department of Public Safety is burning through tens of thousands of dollars of taxpayer money all because they won’t admit what they did is wrong.”
Bomgar did agree with Whitfield that other state agencies are watching this case. But he thinks they’ll have a different takeaway.
“This case will have wide-ranging impacts and send a clear signal that the public records law says what it says and means what it says,” Bomgar said. “You have to follow the public records law.”
credit: in part with https://www.clarionledger.com/story/news/politics/2019/03/11/mississippi-agency-spends-18-k-fight-200-fine-over-public-records/2907507002/