House Bill 719

AN ACT TO AMEND SECTION 5-3-59, MISSISSIPPI CODE OF 1972, TO PROVIDE A CRIMINAL PENALTY FOR CONTEMPT OF INQUIRIES BY THE JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE EVALUATION AND EXPENDITURE REVIEW AND TO ESTABLISH PROPER VENUE IN CASES ARISING UNDER THIS PROVISION; TO CREATE NEW CODE SECTION 5-3-70, MISSISSIPPI CODE OF 1972, TO ESTABLISH AN ALTERNATE CIVIL PENALTY FOR CONTEMPT OF THE COMMITTEE; TO AMEND SECTION 25-61-9, MISSISSIPPI CODE OF 1972, TO EXEMPT THE COMMITTEE FROM THE SCOPE OF PROTECTIVE ORDERS REGARDING TRADE SECRETS OR CONFIDENTIAL COMMERCIAL OR FINANCIAL INFORMATION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 5-3-59, Mississippi Code of 1972, is amended as follows:

5-3-59. The committee, while in the discharge of official duties, shall have the following additional powers:

(a) To subpoena and examine witnesses; to require the appearance of any person and the production of any paper or document; to order the appearance of any person for the purpose of producing any paper or document; and to issue all process necessary to compel such appearance or production. When such process has been served, the committee may compel obedience thereto by the attachment of the person, papers or records subpoenaed; and if any person shall willfully refuse to appear before such committee or answer any question posed by a member of the committee, or to produce any paper or record in obedience to any process issued by the committee and served on that person, he shall be guilty of contempt of the committee and, upon conviction, shall be * * * punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than six (6) months, or both.

(b) To instigate contempt proceedings as provided in this paragraph (b) and in Section 5-3-70.

(i) Whenever facts alleged to constitute contempt under paragraph (a) of this section arise, the chairman of the committee shall certify a statement to this effect to the Attorney General, or to a county prosecuting attorney, who shall institute and prosecute a criminal proceeding against the accused for contempt under the provisions of paragraph (a) of this section. A contempt offense shall be deemed to have been committed in the county where the subpoena was issued, where the offender was served with the subpoena, or where the subpoena ordered the offender to give testimony or to produce papers or other evidence. The trial of the offender for such offense may take place in any of such counties.

(ii) No protective order issued under Section 25-61-9 or any other provision of law shall bar the committee from obtaining access to information that is the subject of the protective order or from determining how such information should be used and reported.

(c) To administer oaths to witnesses appearing before the committee when, by a majority vote, the committee deems the administration of an oath necessary and advisable as provided by law.

(d) To determine that a witness has perjured himself by testifying falsely before the committee, and to institute penal proceedings as provided by law.

SECTION 2. The following shall be codified as Section 5-3-70, Mississippi Code of 1972:

5-3-70. (1) (a) As an alternative to a criminal proceeding provided for in Section 5-3-59, in any instance wherein a witness fails to respond to the lawful subpoena of the committee at any time or, having responded, fails to answer all lawful inquiries or to turn over evidence that has been subpoenaed, the committee may seek judicial enforcement of the process as provided for in paragraph (b) of this subsection.

(b) The chairman, in the name of the committee, may file a complaint before any chancery court of the state describing the failure to respond on the part of the witness. On the filing of such complaint, the court shall take jurisdiction of the witness and the subject matter of the complaint and shall direct the witness to respond to all lawful questions and to produce all documentary evidence in the possession of the witness that is lawfully demanded. The failure of a witness to comply with an order of the court constitutes contempt of court, and the court shall punish the witness as provided for in Section 9-1-17.

(c) The committee may request that the Attorney General bring a civil enforcement action, or it may hire contract counsel to bring a civil enforcement action.

(2) The provisions of this section are declared to be supplemental to the powers of the Legislature, of the Senate and of the House of Representatives to punish for contempt, and the Legislature reserves to itself, the Senate and to the House of Representatives all inherent and all constitutional powers to punish for contempt.

SECTION 3. Section 25-61-9, Mississippi Code of 1972, is amended as follows:

25-61-9. (1) Except as otherwise provided in Section 5-3-59 for the Joint Legislative Committee on Performance Evaluation and Expenditure Review, records furnished to public bodies by third parties which contain trade secrets or confidential commercial or financial information shall not be subject to inspection, examination, copying or reproduction under this chapter until notice to said third parties has been given, but such records shall be released within a reasonable period of time unless the said third parties shall have obtained a court order protecting such records as confidential.

(2) If any public record which is held to be exempt from disclosure pursuant to this chapter contains material which is not exempt pursuant to this chapter, the public body shall separate the exempt material and make the nonexempt material available for examination and/or copying as provided for in this chapter.

(3) Trade secrets and confidential commercial and financial information of a proprietary nature developed by a college or university under contract with a firm, business, partnership, association, corporation, individual or other like entity shall not be subject to inspection, examination, copying or reproduction under this chapter.

(4) Misappropriation of a trade secret shall be governed by the provisions of the Mississippi Uniform Trade Secrets Act, Sections 75-26-1 through 75-26-19.

(5) A waste minimization plan and any updates developed by generators and facility operators under the Mississippi Comprehensive Multimedia Waste Minimization Act of 1990 shall be retained at the facility and shall not be subject to inspection, examination, copying or reproduction under this chapter.

(6) Data processing software obtained by an agency under a licensing agreement that prohibits its disclosure and which software is a trade secret, as defined in Section 75-26-3, and data processing software produced by a public body which is sensitive must not be subject to inspection, copying or reproduction under this chapter.

As used in this subsection, "sensitive" means only those portions of data processing software, including the specifications and documentation, used to:

(a) Collect, process, store, and retrieve information which is exempt under this chapter.

(b) Control and direct access authorizations and security measures for automated systems.

(c) Collect, process, store, and retrieve information, disclosure of which would require a significant intrusion into the business of the public body.

SECTION 4. This act shall take effect and be in force from and after July 1, 2011.