MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary A
By: Representative Smith (39th)
AN ACT TO CONSOLIDATE THE MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW, THE MISSISSIPPI PUBLIC RECORDS ACT OF 1983 AND THE OPEN MEETINGS LAW INTO A SINGLE NEW ACT TO BE KNOWN AS THE "MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW OF 2015"; TO DEFINE CERTAIN TERMS; TO REQUIRE CERTAIN INFORMATION TO BE PUBLISHED BY STATE AGENCIES WITH THE SECRETARY OF STATE AND MADE AVAILABLE TO THE PUBLIC; TO AUTHORIZE THE CHARGING OF FEES FOR INFORMATION PROVIDED TO THE PUBLIC; TO PROVIDE PROCEDURES FOR OBTAINING RECORDS; TO REQUIRE AGENCIES TO PROMULGATE RULES AND REGULATIONS AND TO PRESCRIBE THE PROCEDURE TO BE FOLLOWED IN THE PROMULGATION OF RULES AND REGULATIONS; TO REQUIRE REPORTING OF PROPOSED RULES TO THE LEGISLATURE; TO PRESCRIBE THE MANNER IN WHICH AGENCIES ARE TO MAINTAIN A SYSTEM OF RECORDS; TO REQUIRE THE DISCLOSURE OF AND ACCESS TO PUBLIC RECORDS; TO EXEMPT CERTAIN AGENCY RECORDS FROM PUBLIC DISCLOSURE; TO REQUIRE DETAILED ANNUAL REPORTS TO THE LEGISLATURE FROM AGENCIES PROVIDING INFORMATION ON REQUESTS FOR RECORDS AND APPEALS MADE WHEN RECORD REQUESTS HAVE BEEN DENIED; TO REQUIRE PUBLICATION REGARDING RULES AND REGULATIONS PROMULGATED UNDER THIS ACT; TO PROVIDE CIVIL REMEDIES; TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS OF THIS ACT; TO PROVIDE RULES FOR CONDUCTING AGENCY BUSINESS; TO PROHIBIT MEMBERS OF AGENCIES FROM CONDUCTING MEETINGS THAT ARE NOT OPEN TO THE PUBLIC; TO PRESCRIBE THE MANNER IN WHICH AGENCIES MAY CLOSE MEETINGS OR PORTIONS OF A MEETING TO THE PUBLIC UNDER PRESCRIBED CIRCUMSTANCES; TO PROVIDE JURISDICTION FOR ACTIONS AND PROCEEDINGS UNDER THIS ACT; TO REQUIRE AGENCIES TO MAKE CERTAIN ANNUAL REPORTS TO THE LEGISLATURE; TO ALLOW INTERESTED PERSONS AN OPPORTUNITY TO PARTICIPATE IN RULEMAKING; TO PROVIDE FOR AGENCY HEARINGS; TO COMPEL ATTENDANCE; TO PROVIDE FOR THE TAKING OF EVIDENCE; TO PROVIDE FOR THE POWERS AND DUTIES OF JUDGES AT HEARINGS; TO AUTHORIZE A CAUSE OF ACTION FOR AGGRIEVED PARTIES; TO PROVIDE FOR JUDICIAL REVIEW; TO PROVIDE THE DUTIES AND POWERS OF REVIEWING COURTS; TO REQUIRE THE LEGISLATURE TO ACCEPT OR DISAPPROVE OF RULES AND TO PRESCRIBE THE RULES TO BE FOLLOWED IN THE HOUSE AND SENATE IN THE CONSIDERATION OF JOINT RESOLUTIONS PROPOSING AGENCY RULES AND RULE CHANGES; TO BRING FORWARD SECTIONS 25-43-1.101 THROUGH 25-43-3.114, MISSISSIPPI CODE OF 1972, WHICH ARE THE MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW, FOR PURPOSES OF POSSIBLE AMENDMENT; TO BRING FORWARD SECTIONS 25-61-1 THROUGH 25-61-19, MISSISSIPPI CODE OF 1972, WHICH ARE THE MISSISSIPPI PUBLIC RECORDS ACT OF 1983, FOR PURPOSES OF POSSIBLE AMENDMENT; TO BRING FORWARD SECTIONS 25-41-1 THROUGH 25-41-17, MISSISSIPPI CODE OF 1972, WHICH REQUIRE PUBLIC BUSINESS TO BE CONDUCTED IN OPEN MEETINGS, SUBJECT TO PRESCRIBED EXCEPTIONS, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This act shall be known and may be cited as the "Mississippi Administrative Procedures Law of 2015."
(2) For purposes of this act, the following words and phrases have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Adjudication" means the agency process for the formulation of an order.
(b) "Agency" means each authority of the government of the State of Mississippi, whether or not it is within or subject to review by another agency. The term "agency" does not include:
(i) The Legislature;
(ii) The courts of the State of Mississippi;
(iii) The governments of the political subdivisions of the State of Mississippi;
(iv) The Mississippi National Guard; or
(v) Military authority exercised in the field in time of war or in occupied territory.
(c) "Agency action" includes the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial of such action, or the failure to act.
(d) "Agency proceeding" means any agency process.
(e) "Ex parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given. The term "ex parte communication" does not include requests for status reports on any matter or proceeding covered by this act.
(f) "License" includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission.
(g) "Licensing" includes the agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification or conditioning of a license.
(h) "Order" means the whole or a part of a final disposition, whether affirmative, negative, injunctive or declaratory in form, of an agency in a matter other than rule making but including licensing.
(i) "Party" includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes.
(j) "Person" includes an individual, partnership, corporation, association or public or private organization other than an agency.
(k) "Relief" includes the whole or a part of an agency, including, but not limited to:
(i) Grant of money, assistance, license, authority, exemption, exception, privilege or remedy;
(ii) Recognition of a claim, right, immunity, privilege, exemption or exception; or
(iii) Taking of other action on a person's application or petition and beneficial to that person.
(l) "Rule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or describing the organization, procedure or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting or practices bearing on any of the foregoing.
(m) "Rule making" means the agency process for formulating, amending or repealing a rule.
(n) "Sanction" includes the whole or a part of an agency, including, but not limited to:
(i) Prohibition, requirement, limitation or other
condition affecting the freedom of a person;
(ii) Withholding of relief;
(iii) Imposition of penalty or fine;
(iv) Destruction, taking, seizure or withholding of property;
(v) Assessment of damages, reimbursement, restitution, compensation, costs, charges or fees;
(vi) Requirement, revocation or suspension of a license; or
(vii) Taking other compulsory or restrictive action.
SECTION 2. (1) Each agency shall state and publish with the Secretary of State for the guidance of the public the following information:
(a) A description of the agency's central and field organization and the established places at which the public may obtain information, make submittals or requests, or obtain decisions, including the employees from whom the information may be obtained and the method for obtaining the information;
(b) Statements of the general course and method by which the agency's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available and the places at which those forms may be obtained, and instructions as to the scope and contents of all papers, reports and examinations;
(d) Substantive rules of general applicability adopted in accordance with law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(e) Each amendment, revision or repeal of the information required under this subsection.
(2) In addition to publishing the information described under subsection (1) of this section with the Secretary of State, each agency must make the information directly available to the public.
(3) Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published and not so published.
SECTION 3. (1) Each agency, in accordance with published rules, shall make the following available for public inspection and copying unless the materials are published promptly and copies offered for sale:
(a) Final opinions, including concurring and dissenting opinions as well as orders, made in the adjudication of cases;
(b) Those statements of policy and interpretations which have been adopted by the agency and are not published;
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) Copies of all records, regardless of form or format, which have been released to any person under Section 4 of this act and which, because of the nature of their subject matter, the agency determines currently are, or may become, the subject of subsequent requests for substantially the same records;
(e) A general index of the records referred to under paragraph (d) of this subsection, which index must be made available by computer telecommunications before January 1, 2016; and
(f) A current index providing identifying information for the public as to any matter issued, adopted or promulgated after July 4, 1967, and required by this section to be made available and published.
(2) Each agency shall make records created on or after January 1, 2016, available within one (1) year after the date of the respective record's creation. The records must be made available by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.
(3) To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction or copies of records referred to in paragraph (d) of subsection (1). However, the justification for each deletion must be explained fully in writing, and the extent of the deletion must be indicated on the portion of the record which is made available or published unless including that indication would harm an interest protected by an exemption under Section 9 of this act. If technically feasible, the extent of the deletion must be indicated at the place in the record where the deletion was made.
(4) Each agency shall publish, no less than quarterly, and distribute by sale or otherwise copies of each index or index supplement unless the agency determines, by order published, that the publication would be unnecessary and impracticable. In such case, the agency must provide copies of the index on request at a cost not exceeding the direct cost of duplication.
(5) A final order, opinion, statement of policy, interpretation or staff manual or instruction that affects a member of the public may be relied on, used or cited as precedent by an agency against a party other than an agency only if: it has been indexed and either made available or published as required under this section; or the party has actual and timely notice of the terms of the document.
SECTION 4. (1) For purposes of this section, the term "search" means to review, manually or by automated means, agency records for the purpose of locating those records that are responsive to a request.
(2) Except with respect to the records made available under Sections 1 and 2 of this act, each agency, upon any request for records which reasonably describes the records and is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall make the records promptly available to any person.
(3) In making any record available to a person under this section, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this subsection.
(4) In responding under this section to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when those efforts would interfere significantly with the operation of the agency's automated information system.
SECTION 5. (1) (a) In order to carry out the provisions of this act, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this act and establishing procedures and guidelines for determining when the fees should be waived or reduced. The schedule shall conform to the guidelines that shall be promulgated, pursuant to notice and receipt of public comment, by the Legislative Budget Office and which shall provide for a uniform schedule of fees for all agencies.
(b) The agency regulations must provide the following:
(i) Fees shall be limited to reasonable standard charges for document search, duplication and review, when records are requested for commercial use;
(ii) Fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research, or a representative of the news media. As used in this subparagraph, the term "a representative of the news media" means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. As used in this subparagraph, the term "news" means information that is about current events or that would be of current interest to the public. Examples of news-media entities include, but are not limited to, television and radio stations broadcasting to the public at large and publishers of periodicals that qualify as disseminators of news, which entities distribute their products to the general public free of charge or make their products available for purchase or subscription by the general public. As methods of news delivery evolve, alternative media, such as the adoption of the electronic dissemination of newspapers through telecommunications services, must be considered to be news-media entities. A freelance journalist must be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract may be deemed to present a solid basis for such an expectation. The agency also may consider the past publication record of the requester in making a determination regarding fees; and
(iii) For any request not described in (i) or (ii), fees must be limited to reasonable standard charges for document search and duplication.
(c) Documents must be furnished without any charge or at a charge reduced below the fees established under paragraph (b) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(d) Fee schedules must provide for the recovery of only the direct costs of search, duplication or review. Review costs include only the direct costs incurred during the initial examination of a document for the purposes of determining whether or not the documents must be disclosed under this act and for the purposes of withholding any portions exempt from disclosure under this act. Review costs may not include any costs incurred in resolving issues of law or policy which may be raised in the course of processing a request under this act. A fee may not be charged by an agency under this act: if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or for any request described in paragraph (b) (ii) or (iii) of this subsection, for the first two (2) hours of search time or the first one hundred (100) pages of duplication.
(e) An agency may not require advance payment of any fee unless the requester previously has failed to pay fees in a timely fashion or the agency has determined that the fee will exceed Two Hundred Fifty Dollars ($250.00).
(f) Nothing in this subsection may supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.
(g) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo; however, the court's review of the matter must be limited to the record before the agency.
(h) An agency may not assess search fees or, in the case of a requester described under paragraph (b)(ii), duplication fees, if the agency fails to comply with any time limit required under Sectuib of this act, unless unusual circumstances, as defined for purposes of Section 7, apply to the processing of the request.
(2) On complaint, the circuit or chancery court of the district in which the complainant resides or has his principal place of business or in which the agency records are situated has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case, the court shall determine the matter de novo, and may examine the contents of the agency records in camera to determine whether or not the records or any part of the records must be withheld under any of the exemptions set forth in Section 9 of this act. The burden is on the agency to sustain its action.
(3) An agency must serve an answer or otherwise plead to any complaint made under this section within thirty (30) days after service upon the agency of the pleading in which the complaint is made, unless the court otherwise directs for good cause shown.
(4) (a) The court may assess against the agency reasonable attorney's fees and other litigation costs reasonably incurred in any case under this section in which the complainant substantially has prevailed.
(b) For purposes of this subsection, a complainant substantially has prevailed if the complainant has obtained relief through either:
(i) A judicial order, or an enforceable written agreement or consent decree; or
(ii) A voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.
(5) (a) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the agency reasonable attorney's fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, then a special counsel appointed by the Attorney General promptly shall initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The special counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority must take the corrective action that the special counsel recommends.
(b) The Attorney General shall:
(i) Notify the special counsel of each civil action described under paragraph (a) of this subsection; and
(ii) Annually submit a report to the Legislature on the number of such civil actions in the preceding year.
(c) The special counsel shall submit an annual report to the Legislature on the actions taken by the special counsel under paragraph (a).
(6) In the event of noncompliance with the order of the court, the circuit or chancery court may punish for contempt the responsible employee.
SECTION 6. Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.
SECTION 7. (1) Each agency, upon any request for records made under Sections 2, 3 or 4 of this act, shall:
(a) Determine, within twenty (20) days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of the request, whether to comply with the request and immediately shall notify the person making the request of its determination and the reasons therefor and of the right of the person to appeal to the head of the agency any adverse determination; and
(b) Make a determination, with respect to any appeal, within twenty (20) days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of the appeal. If on appeal the denial of the request for records is upheld, in whole or in part, the agency shall notify the person making the request of the provisions for judicial review of that determination under Section 5 of this act.
The twenty-day period under paragraph (a) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten (10) days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests. The twenty-day period may not be tolled by the agency except that the agency may make one (1) request to the requester for information and toll the twenty-day period while it is awaiting the information that it has reasonably requested. In addition, the twenty-day period may be tolled if it is necessary to clarify with the requester issues regarding fee assessment. In either case, the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period.
(2) (a) In unusual circumstances as specified in this subsection, the time limits prescribed in either paragraph (a) or (b) of subsection (1) may be extended by written notice to the person making the request setting forth the unusual circumstances for the extension and the date on which a determination is expected to be dispatched. The notice may not specify a date that would result in an extension for more than ten (10) working days, except as provided in paragraph (b) of this subsection.
(b) With respect to a request for which a written notice under paragraph (a) extends the time limits prescribed under paragraph (a) of subsection (1), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that paragraph and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. To aid the requester, each agency shall make available its public liaison, who shall assist in the resolution of any disputes between the requester and the agency. Refusal by the person to reasonably modify the request or arrange an alternative time frame must be considered as a factor in determining whether exceptional circumstances exist for purposes of subsection (3).
(c) As used in this subsection, the term "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular requests, the following:
(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(ii) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) The need for consultation, which must be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two (2) or more components of the agency having substantial subject-matter interest in the request.
(d) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requester, or by a group of requesters acting in concert, if the agency reasonably believes that the requests actually constitute a single request and the requests involve clearly related matters. Multiple requests involving unrelated matters may not be aggregated.
(3) (a) Any person making a request to any agency for records under Sections 2, 3 or 4 of this act shall be deemed to have exhausted his administrative remedies with respect to the request if the agency fails to comply with the applicable time limit provisions of this section. If the government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records must be made available promptly to the person making the request. Any notification of denial of a request for records under this act must set forth the names and titles or positions of each person responsible for the denial of that request.
(b) For purposes of this subsection, the term "exceptional circumstances" does not include a delay that results from a predictable agency workload of requests under this act, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.
(c) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) after being given an opportunity to do so by the agency to whom the person made the request must be considered a factor in determining whether exceptional circumstances exist for purposes of this subsection.
(4) (a) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time, or both, involved in processing requests.
(b) Regulations promulgated under this subsection may require that a person making a request that does not qualify for the fastest multitrack processing be provided an opportunity to limit the scope of the request in order to qualify for faster processing.
(c) This subsection may not be considered to affect the requirement under subsection (3) to exercise due diligence.
(5) (a) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records:
(i) In cases in which the person requesting the records demonstrates a compelling need; and
(ii) In other cases determined by the agency.
(b) Notwithstanding subparagraph (i) of this paragraph (a), regulations under this subsection must ensure:
(i) That a determination of whether to provide expedited processing must be made, and notice of the determination must be provided to the person making the request, within ten (10) days after the date of the request; and
(ii) Expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.
(c) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subsection. Agency action to deny or affirm denial of a request for expedited processing, and failure by an agency to respond in a timely manner to such a request must be subject to judicial review under Section 4 of this act, except that the judicial review shall be based on the record before the agency at the time of the determination.
(d) A circuit or chancery court of the district of the complainant shall have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request. This review must be de novo.
(e) For purposes of this subsection, the term "compelling need" means:
(i) That a failure to obtain requested records on an expedited basis reasonably could be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged government activity.
A demonstration of a compelling need by a person making a request for expedited processing must be made by a statement certified by the person to be true and correct to the best of that person's knowledge and belief.
(6) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter that has been denied and shall provide the estimate to the person making the request unless providing the estimate would harm an interest protected by an exemption in Section 8 of this act.
SECTION 8. Each agency shall:
(a) Establish a system to assign an individualized tracking number for each request received which will take longer than ten (10) days to process and provide to each person making a request the tracking number assigned to that request; and
(b) Establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including the date on which the agency originally received the request and
an estimated date on which the agency will complete action on the request.
SECTION 9. (1) This act does not apply to matters that are:
(a) Specifically authorized under criteria established by an executive order to be kept secret and which matters are, in fact, properly classified pursuant to such executive order;
(b) Medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and
(c) Records or information compiled for law enforcement purposes, but only to the extent that the production of those law enforcement records or information reasonably could be expected to endanger the life or physical safety of any individual.
(2) This section does not authorize the withholding of any information or limiting the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold any information from the Legislature.
SECTION 10. (1) On or before February 1 of each year, each agency shall submit to the Chairmen of the Judiciary A Committees of the House of Representatives and the Mississippi Senate a report that covers the preceding fiscal year and includes the following:
(a) The number of determinations made by the agency not to comply with requests for records made to that agency under this act and the reasons for each determination;
(b) The number of appeals made by persons, the result of those appeals and the reason for the action upon each appeal that resulted in a denial of information; in addition, the agency must include a complete list of all statutes that the agency relies upon as authority for the agency to withhold information, the number of occasions upon which each statute was relied, whether or not a court has upheld the agency's decision to withhold information under each statute listed, and a concise description of the scope of any information withheld;
(c) The number of requests for records pending before the agency on September 30 of the preceding year and the median and average number of days that those requests had been pending before the agency on September 30;
(d) The number of requests for records received by the agency and the number of requests which the agency processed;
(e) The median number of days taken by the agency to process different types of requests, based on the date on which the requests were received by the agency;
(f) The average number of days taken by the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to those requests and the range in number of days for the agency to respond to the requests;
(g) Based on the number of business days that have elapsed since each request originally was received by the agency:
(i) The number of requests for records to which the agency has responded with a determination within a period of twenty (20) days, and in twenty-day increments, up to and including two hundred (200) days;
(ii) The number of requests for records to which the agency has responded with a determination within a period greater than two hundred (200) days but less than three hundred one (301) days;
(iii) The number of requests for records to which the agency has responded with a determination within a period greater than three hundred (300) days but less than four hundred one (401) days; and
(iv) The number of requests for records to which the agency has responded with a determination within a period greater than four hundred (400) days;
(h) The average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information and the range in number of days for the agency to provide the granted information;
(i) The median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency and the highest number and lowest number of business days taken by the agency to respond to an administrative appeal;
(j) Data on the ten (10) active requests with the earliest filing dates pending at each agency, including the amount of time which has elapsed since each request was received originally by the agency;
(k) Data on the ten (10) active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were received originally by the agency;
(l) The number of expedited review requests that were granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required ten (10) days;
(m) The number of fee waiver requests that were granted and denied, and the average and median number of days for adjudicating fee waiver determinations;
(n) The total amount of fees collected by the agency for processing requests; and
(o) The number of full-time staff of the agency devoted to processing requests for records under this act and the total amount expended by the agency for processing those requests.
(2) Information in each report submitted under subsection (1) must be expressed in terms of each principal component of the agency and for the agency overall.
(3) Each agency shall make each report available to the public, including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. In addition, upon request, each agency shall make the raw statistical data used in its reports available electronically to the public.
(4) The Chairmen of the Judiciary A Committees of the House of Representatives and the Mississippi Senate shall make each report that has been made available by electronic means available at a single electronic access point. Before April 1 of the year in which each such report is issued, the Chairmen of the Judiciary A Committees of the House of Representatives and Senate shall notify the Chairmen of Ethics Committees of the House of Representatives and the Senate that the reports are available by electronic means.
(5) The Chairmen of the Judiciary A Committees of the House of Representatives and the Senate, in consultation with the Legislative Budget Office, shall develop reporting and performance guidelines in connection with reports required by this section and may establish additional requirements for the reports which they determine may be useful.
(6) On or before April 1 of each year, the Chairmen of the Judiciary A Committees of the House of Representatives and Senate shall submit an annual report that includes, for the prior calendar year, a listing of the number of cases arising under this act, the exemption involved in each case, the disposition of each case, and the cost, fees and penalties assessed under Section 5 of this act. The report also must include a description of the efforts undertaken by the Attorney General to encourage agency compliance with this act.
SECTION 11. (1) For purposes of this section, the term:
(a) "Agency," as defined in Section 1 of this act, includes any executive department, military department, government corporation, government controlled corporation or other establishment in the executive branch of the government, including the Executive Office of the Governor, or any independent regulatory agency; and
(b) "Record" and any other term used in this section in reference to information includes:
(i) Any information that would be an agency record subject to the requirements of this act when maintained by an agency in any format, including an electronic format; and
(ii) Any information described under subparagraph (i) which is maintained for an agency by an entity under government contract for the purposes of records management.
(2) The head of each agency shall prepare and make publicly available, upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in Section 9, including:
(a) An index of all major information systems of the agency;
(b) A description of major information and record locator systems maintained by the agency; and
(c) A handbook for obtaining various types and categories of public information from the agency under this section.
(3) The House of Representatives and the Mississippi Senate shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of those audits.
(4) Each agency shall designate a Chief Freedom of Information Act ("FOIA") Officer who must be a senior official at the assistant director or equivalent level of the agency.
(5) Subject to the authority of the head of the agency, the Chief FOIA Officer of each agency shall:
(a) Have agency-wide responsibility for efficient and appropriate compliance with this section;
(b) Monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency and the Chairmen of the Judiciary A Committees of the House of Representatives and Senate appropriately informed of the agency's performance in implementing this section;
(c) Recommend to the head of the agency such adjustments to agency practices, policies, personnel and funding as may be necessary to improve its implementation of this section; and
(d) Review and report to the Chairmen of the Judiciary A Committees of the House of Representatives and Senate, through the head of the agency, at such times and in such formats as the Chairmen of the Judiciary A Committees of the House of Representatives and Senate may direct, on the agency's performance in implementing this section.
SECTION 12. For purposes of Sections 12 through 22 of this act, the following words and phrases have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Agency" means an agency as defined in Section 1 of this act.
(b) "Individual" means a citizen of the United States or an alien lawfully admitted for permanent residence.
(c) "Maintain" includes maintain, collect, use or disseminate.
(d) "Record" means any item, collection or grouping of information about an individual which is maintained by an agency, including, but not limited to, his education, financial transactions, medical history and criminal or employment history, and which contains his name or the identifying number, symbol or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
(e) "System of records" means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol or other identifying particular assigned to the individual.
(f) "Statistical record" means a record in a system of records maintained for statistical research or reporting purposes only and not used, in whole or in part, in making any determination about an identifiable individual.
(g) "Routine use" means, with respect to the disclosure of a record, the use of the record for a purpose that is compatible with the purpose for which it was collected.
(h) "Matching program" means:
(i) Any computerized comparison of two (2) or more automated systems of records or a system of records with nonstate records for the purpose of:
1. Establishing or verifying the eligibility of, or continuing compliance with statutory and regulatory requirements by, applicants for, recipients or beneficiaries of, participants in, or providers of services with respect to cash or in-kind assistance or payments under state benefit programs; or
2. Recouping payments or delinquent debts under such state benefit programs.
(ii) "Matching program" does not include:
1. Matches performed to produce aggregate statistical data without any personal identifiers;
2. Matches performed to support any research or statistical project, the specific data of which may not be used to make decisions concerning the rights, benefits or privileges of specific individuals;
3. Matches performed by an agency that performs as its principal function any activity pertaining to the enforcement of criminal laws, subsequent to the initiation of a specific criminal or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence against the person or persons;
4. Matches of tax information: pursuant to Section 6103(d) of the Internal Revenue Code of 1986; for purposes of tax administration, as defined in Section 6103(b)(4) of the Internal Revenue Code; for the purpose of intercepting a tax refund due an individual under authority granted by Section 404(e), 464, or 1137 of the Social Security Act; or for the purpose of intercepting a tax refund due an individual under any other tax refund intercept program authorized by statute which has been determined by the Director of the Office of Management and Budget to contain verification, notice and hearing requirements that are substantially similar to the procedures in Section 1137 of the Social Security Act;
5. Matches, if the purpose is not to take any adverse financial, personnel, disciplinary or other adverse action against state personnel, which:
a. Use records predominantly relating to state personnel which are performed for routine administrative purposes, subject to guidance provided by the Department of Finance and Administration; or
b. Are conducted by an agency using only records from systems of records maintained by that agency;
6. Matches performed for security clearances of state personnel or state contractor personnel;
7. Matches performed incident to a levy described in Section 6103(k)(8) of the Internal Revenue Code of 1986; and
8. Matches performed pursuant to Section 202(x)(3) or 1611(e)(1) of the Social Security Act (42 USCS 402(x)(3), 1382(e)(1)).
(i) "Recipient agency" means any agency or contractor thereof receiving records contained in a system of records from a source agency for use in a matching program.
(j) "Nonstate agency" means any state or local government or agency thereof which receives records contained in a system of records from a source agency for use in a matching program.
(k) "Source agency" means any agency that discloses records contained in a system of records to be used in a matching program, or any state or local government or agency thereof which discloses records to be used in a matching program.
(l) "State benefit program" means any program administered or funded by the State of Mississippi, or by any agent on behalf of the State of Mississippi, providing cash or in-kind assistance in the form of payments, grants, loans or loan guarantees to individuals.
(m) "State personnel" means officers and employees of the State of Mississippi, members of the uniformed services, including members of the Mississippi National Guard, and individuals entitled to receive immediate or deferred retirement benefits, including survivor benefits, under any retirement program of the State of Mississippi.
SECTION 13. No agency shall disclose any record that is contained in a system of records by any means of communication to any person or to another agency except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be:
(a) To those officers and employees of the agency that maintains the records who have a need for the record in the performance of their duties;
(b) Required under Section 1 through 11 of this act;
(c) For a routine use;
(d) To a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(e) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the State of Mississippi for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency that maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;
(f) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if, upon the disclosure, notification is transmitted to the last known address of the individual;
(g) To either chamber or committee of the Legislature or, to the extent the matter is within its jurisdiction, any committee or subcommittee thereof, any joint committee of the Legislature or subcommittee of any such joint committee;
(h) To the State Auditor or any of his authorized representatives; or
(i) Pursuant to the order of a court of competent jurisdiction.
SECTION 14. Each agency, with respect to each system of records under its control, shall:
(a) Except for disclosures made under (a) or (b) of Section 13, keep an accurate accounting of:
(i) The date, nature and purpose of each disclosure of a record to any person or to another agency made under Section 13 of this act; and
(ii) The name and address of the person or agency to whom the disclosure is made;
(b) Retain the accounting made under paragraph (a) of this subsection for at least five (5) years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;
(c) Make the accounting made under paragraph (a) of this subsection available to the individual named in the record at his request; and
(d) Inform any person or other agency about any correction or notation of dispute made by the agency in accordance with Section 15 of this act of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.
SECTION 15. Each agency that maintains a system of records shall:
(a) Upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;
(b) Permit the individual to request an amendment of a record pertaining to him; and
(i) Not later than ten (10) days, excluding Saturdays, Sundays and legal public holidays, after the date of receipt of the request, acknowledge in writing the receipt; and
(ii) Promptly either:
1. Make any correction of any portion thereof which the individual believes is not accurate, relevant, timely or complete; or
2. Inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;
(c) Permit the individual who disagrees with the refusal of the agency to amend his record to request a review of the refusal, and not later than thirty (30) days, excluding Saturdays, Sundays and legal public holidays, from the date on which the individual requests the review, complete the review and make a final determination unless, for good cause shown, the head of the agency extends the thirty-day period. If, after his review, the reviewing official also refuses to amend the record in accordance with the request, the agency must permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency and notify the individual of the provisions for judicial review of the reviewing official's determination under this act;
(d) In any disclosure containing information about which the individual has filed a statement of disagreement occurring after the filing of the statement under paragraph (c) of this section, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the agency's reasons for not making the amendments requested to persons or other agencies to whom the disputed record has been disclosed.
SECTION 16. Each agency that maintains a system of records shall:
(a) Maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the Governor;
(b) Collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits and privileges under state programs;
(c) Inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual:
(i) The authority, whether granted by statute or executive order of the Governor, which authorizes the solicitation of the information and whether disclosure of the information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is intended to be used;
(iii) The routine uses that may be made of the information, as published pursuant to paragraph (d)(iv) of this section; and
(iv) The effects on him, if any, of not providing all or any part of the requested information;
(d) Subject to the provisions of paragraph (k) of this section, publish upon establishment or revision a notice of the existence and character of the system of records, which notice must include:
(i) The name and location of the system;
(ii) The categories of individuals on whom records are maintained in the system;
(iii) The categories of records maintained in the system;
(iv) Each routine use of the records contained in the system, including the categories of users and the purpose of the use;
(v) The policies and practices of the agency regarding storage, retrievability, access controls, retention and disposal of the records;
(vi) The title and business address of the agency official who is responsible for the system of records;
(vii) The agency procedures by which an individual can be notified, at his request, if the system of records contains a record pertaining to him;
(viii) The agency procedures by which an individual can be notified, at his request, how he can gain access to any record pertaining to him contained in the system of records and how he can contest its content; and
(ix) The categories of sources of records in the system;
(e) Maintain all records that are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual in the determination;
(f) Before disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to paragraph (b) of Section 13 of this act, make reasonable efforts to assure that the records are accurate, complete, timely and relevant for agency purposes;
(g) Maintain no record describing how any individual exercises rights guaranteed by the First Amendment of the United States Constitution unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;
(h) Make reasonable efforts to serve notice on an individual when any record on the individual is made available to any person under compulsory legal process when the process becomes a matter of public record;
(i) Establish rules of conduct for persons involved in the design, development, operation or maintenance of any system of records or in maintaining any record, and instruct those persons with respect to the rules and the requirements of Sections 12 through 22 of this act, including any other rules and procedures adopted pursuant to this act and the penalties for noncompliance;
(j) Establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience or unfairness to any individual on whom information is maintained;
(k) At least thirty (30) days before publication of information under paragraph (d)(iv) of this section, publish notice of any new use or intended use of the information in the system and provide an opportunity for interested persons to submit written data, views or arguments to the agency; and
(l) If the agency is a recipient agency or a source agency in a matching program with a nonfederal agency, with respect to any establishment or revision of a matching program, at least thirty (30) days before conducting the program, publish in the notice of the establishment or revision.
SECTION 17. In order to carry out the provisions of Sections 12 through 22 of this act, each agency that maintains a system of records shall promulgate rules in accordance with the requirements, including general notice, of this act. The rules must:
(a) Establish procedures by which an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him;
(b) Define reasonable times, places and requirements for identifying an individual who requests his record or information pertaining to him before the agency makes the record or information available to the individual;
(c) Establish procedures for the disclosure to an individual, upon his request, of his record or information pertaining to him, including any special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him;
(d) Establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this act; and
(e) Establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of any search for and review of the record.
The Office of the Secretary of State shall compile and publish biennially the rules promulgated under this section and agency notices published under paragraph (d) of Section 16 in a form available to the public at low cost.
SECTION 18. (1) An individual may bring a civil action against an agency, and the district courts of the United States shall have jurisdiction in the matter, whenever any agency:
(a) Makes a determination under paragraph (c) of Section 15 of this act not to amend an individual's record in accordance with his request or fails to make a review in conformity with that paragraph;
(b) Refuses to comply with an individual request under paragraph (a) of Section 15;
(c) Fails to maintain any record concerning any individual with such accuracy, relevance, timeliness and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights or opportunities of, or benefits to, the individual which may be made on the basis of the record, and consequently, a determination is made which is adverse to the individual; or
(d) Fails to comply with any other provision of Sections 12 through 22 of this act or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.
(2) (a) In any suit brought under the subsection (1)(a) of this section, the court may order the agency to amend the individual's record in accordance with his request or in such other way as the court may direct. In such a case, the court shall determine the matter de novo.
(b) The court may assess against the United States reasonable attorney's fees and other litigation costs reasonably incurred in any case under this subsection in which the complainant substantially has prevailed.
(3) (a) In any suit brought under subsection (1)(b), the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case, the court shall determine the matter de novo and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in this act, and the burden is on the agency to sustain its action.
(b) The court may assess against the agency reasonable attorney's fees and other litigation costs reasonably incurred in any case under this subsection in which the complainant substantially has prevailed.
(4) In any suit brought under subsection (1)(c) or (d) of this section in which the court determines that the agency acted in a manner that was intentional or willful, the agency shall be liable to the individual in an amount equal to the sum of:
(a) Actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of Ten Thousand Dollars ($10,000.00); and
(b) The costs of the action, together with reasonable attorney's fees, as determined by the court.
(5) An action to enforce any liability created under Sections 12 through 22 of this act may be brought in the circuit or chancery court in the district in which the complainant resides or has his principal place of business or in which the agency records are situated, without regard to the amount in controversy, within two (2) years from the date on which the cause of action arises; however, where an agency has materially and willfully misrepresented any information required under this act to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual, the action may be brought at any time within two (2) years after discovery by the individual of the misrepresentation. Nothing in this act may be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record before July 1, 2015.
SECTION 19. For the purposes of Sections 12 through 22 of this act, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.
SECTION 20. (1) Any officer or employee of an agency who, by virtue of his employment or official position, has possession of or access to agency records that contain individually identifiable information, the disclosure of which is prohibited by Sections 12 through 22 of this act or by rules or regulations established thereunder, and who, knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, is guilty of a misdemeanor and must be fined not less than Five Thousand Dollars ($5,000.00).
(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of paragraph (d) of Section 16 of this act is guilty of a misdemeanor and must be fined not less than Five thousand Dollars ($5,000.00).
(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses is guilty of a misdemeanor and must be fined not less than Five Thousand Dollars ($5,000.00).
SECTION 21. When an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall cause, consistent with its authority, the requirements of Sections 12 through 22 of this act to be applied to the system. For purposes of Section 20, any such contractor and any employee of the contractor, if the contract is agreed to on or after July 1, 2015, must be considered to be an employee of an agency.
SECTION 22. An individual's name and address may not be sold or rented by an agency unless the action specifically is authorized by law. This section may not be construed to require the withholding of names and addresses otherwise permitted to be made public.
SECTION 23. For purposes of Sections 23 through 34 of this act, the following words and phrases have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Agency" means any agency headed by a collegial body composed of two (2) or more individual members, a majority of whom are appointed to their position by the Governor, and any subdivision thereof authorized to act on behalf of the agency.
(b) "Meeting" means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where the deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by Section 26 or 27.
(c) "Member" means an individual who belongs to a collegial body heading an agency.
SECTION 24. (1) Members may not jointly conduct or dispose of agency business other than in accordance with Sections 23 through 34 of this act.
(2) Except as provided in Section 25, every portion of every meeting of an agency must be open to public observation.
SECTION 25. Except in a case where the agency finds that the public interest requires otherwise, subsection (2) of Section 24 does not apply to any portion of an agency meeting, and the requirements of Sections 26 and 27 do not apply to any information pertaining to the meeting otherwise required by Sections 23 through 34 of this act to be disclosed to the public, where the agency properly determines that the portion or portions of its meeting or the disclosure of the information is likely to:
(a) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; or
(b) Disclose investigatory records compiled for law enforcement purposes or information which, if written, would be contained in those records, but only to the extent that the production of the records or information would endanger the life or physical safety of law enforcement personnel.
SECTION 26. (1) Action under Section 25 may be taken only when a majority of the entire membership of the agency votes to take the action. A separate vote of the agency members must be taken with respect to each agency meeting during which a portion or portions are proposed to be closed to the public under Section 25, or with respect to any information that is proposed to be withheld under Section 25. A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning the series of meetings, so long as each meeting in the series involves the same particular matters and is scheduled to be held no more than thirty (30) days after the initial meeting in that series. The vote of each agency member participating in the vote must be recorded, and no proxies may be allowed.
(2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close that portion to the public for any of the reasons referred to in Section 25, the agency, upon request of any one of its members, shall vote by recorded vote whether or not to close the meeting.
(3) Within one (1) day of any vote taken under subsection (1) or (2) of this section, the agency shall make available publicly a written copy of the vote reflecting the vote of each member on the question. If a portion of a meeting will be closed to the public, within one (1) day of the vote taken under subsection (1) or (2), the agency must make publicly available a full written explanation of its action closing that portion, together with a list of all persons expected to attend the meeting and their affiliation.
(4) Any agency may provide, by regulation, for the closing of a meeting or portion of a meeting if a majority of the members of the agency votes by recorded vote at the beginning of that meeting, or portion of the meeting, to close the exempt portion or portions of the meeting. A copy of the vote, reflecting the vote of each member on the question, must be made available to the public. Subsections (1), (2), and (3) of this section and Section 27 do not apply to any portion of a meeting to which such a regulation applies; however, except to the extent that the information is exempt from disclosure under Section 25, the agency must provide the public with a public announcement of the time, place and subject matter of the meeting and of each portion of the meeting at the earliest practicable time.
SECTION 27. (1) In the case of each meeting, the agency shall make a public announcement, at least one (1) week before the meeting, of the time, place and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. The announcement must be made unless a majority of the members of the agency determines by a recorded vote that agency business requires that the meeting be called at an earlier date, in which case, the agency must make a public announcement of the time, place and subject matter of the meeting and whether the meeting will be open or closed to the public at the earliest practicable time.
(2) The time or place of a meeting may be changed following the public announcement required under subsection (1) only if the agency publicly announces the change at the earliest practicable time. The subject matter of a meeting, or the determination of the agency to open or close a meeting or portion of a meeting to the public, may be changed following the public announcement required by this section only if:
(a) A majority of the entire membership of the agency determines by a recorded vote that agency business so requires and that no earlier announcement of the change was possible; and
(b) The agency publicly announces the change and the vote of each member upon the change at the earliest practicable time.
(3) Immediately following each public announcement required by this section, notice of the time, place and subject matter of a meeting, whether the meeting is open or closed, any change in one (1) of the preceding and the name and phone number of the official designated by the agency to respond to requests for information about the meeting shall be submitted for publication on the agency's Internet website.
SECTION 28. For every meeting closed under Section 25, counsel or the chief legal officer of the agency shall certify publicly that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of the certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, must be retained by the agency. The agency shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, or portion of a meeting, closed to the public pursuant to relevant provision, the agency shall maintain either such a transcript or recording, or a set of minutes. The minutes must fully and clearly describe all matters discussed and must provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote reflecting the vote of each member on the question. All documents considered in connection with any action must be identified in such minutes.
SECTION 29. The agency shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording or minutes of the discussion of any item on the agenda, or of any item of the testimony of a witness received at the meeting, except for any item or items of the discussion or testimony as the agency determines to contain information which may be withheld under Section 25. Copies of the transcript or minutes or a transcription of the recording disclosing the identity of each speaker must be furnished to any person at the actual cost of duplication or transcription. The agency shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes or a complete electronic recording of each meeting or portion of a meeting closed to the public for a period of at least two (2) years after that meeting, or until one (1) year after the conclusion of any agency proceeding with respect to which the meeting or portion was held, whichever occurs later.
SECTION 30. Within one hundred eighty (180) days after July 1, 2015, each agency subject to the requirements of Sections 23 through 34 of this act shall promulgate regulations to implement the requirements of Sections 24 through 28 of this act. Any person may bring a proceeding in the circuit, county or chancery court of the home county of the complainant to require an agency to promulgate the regulations if the agency has not promulgated the regulations within the designated time period. Subject to any limitations of time provided by law, any person may bring a proceeding in the circuit, county or chancery court of the home county of the complainant to set aside agency regulations issued pursuant to this section which are not in accord with the requirements of Sections 24 through 28 of this section and to require the promulgation of regulations that are in accord with those sections.
SECTION 31. (1) The circuit, county and chancery courts of the home county of the complainant shall have jurisdiction to enforce the requirements of Sections 24 through 28 of this act by declaratory judgment, injunctive relief or other relief as may be appropriate. Actions may be brought by any person against an agency before, or within sixty (60) days after, the meeting out of which the violation of Sections 23 through 34 arises. However, that if a public announcement of the meeting is not initially provided by the agency in accordance with the requirements of Sections 23 through 34, the action may be instituted under those sections at any time before sixty (60) days after any public announcement of the meeting. Actions may be brought in the circuit, county and chancery courts of the home county of the complainant. In such an action, a defendant must serve his answer within thirty (30) days after the service of the complaint. The burden is on the defendant to sustain his action. In deciding these cases, the court may examine in camera any portion of the transcript, electronic recording or minutes of a meeting closed to the public and may take such additional evidence as it deems necessary. The court, having due regard for orderly administration and the public interest as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of Sections 23 through 34 of this act or ordering the agency to make available to the public the portion of the transcript, recording or minutes of a meeting which are not authorized to be withheld under Section 25.
(2) Any court otherwise authorized by law to review agency action may inquire, at the application of any person properly participating in the proceeding pursuant to other applicable law, into violations by the agency of the requirements of Sections 23 through 34 and afford such relief as it deems appropriate.
(3) The court may assess against any party reasonable attorney's fees and other litigation costs reasonably incurred by any other party who substantially prevails in any action brought in accordance with Section 29 or 30, except that costs may be assessed against the plaintiff only where the court finds that the suit was initiated by the plaintiff primarily for frivolous or dilatory purposes. In the case of assessment of costs against an agency, the costs may be assessed by the court against the state.
SECTION 32. Each agency subject to the requirements of Sections 23 through 34 of this act shall report annually to the Legislature regarding the following:
(a) The changes in the policies and procedures of the agency under Sections 23 through 34 which have occurred during the preceding one-year period.
(b) A tabulation of the number of meetings held, the exemptions applied to close meetings and the days of public notice provided to close meetings.
(c) A brief description of litigation or formal complaints concerning the implementation of Sections 23 through 34 by the agency.
(d) A brief explanation of any changes in law that have affected the responsibilities of the agency under Sections 23 through 34 of this act.
SECTION 33. Sections 23 through 34 do not constitute authority to withhold any information from the Legislature and do not authorize the closing of any agency meeting or portion of an agency meeting required by any other provision of law to be open.
SECTION 34. Nothing in Sections 23 through 34 of this act authorizes any agency to withhold from any individual any record, including transcripts, recordings or minutes required by Sections 23 through 34, which is otherwise accessible to the individual under Sections 12 through 22 of this act.
SECTION 35. (1) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making process through submission of written data, views or arguments, with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
(2) The required publication or service of a substantive rule must be made not less than thirty (30) days before its effective date.
(3) Each agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule.
SECTION 36. (1) This section applies in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing. The requirements of this section are in addition to any requirements that may be established for a particular agency conducting an agency hearing.
(2) Persons entitled to notice of an agency hearing must be timely informed of:
(a) The time, place and nature of the hearing;
(b) The legal authority and jurisdiction under which the hearing is to be held; and
(c) The matters of fact and law asserted.
(3) Any and all agency hearings must be conducted pursuant to the Mississippi Rules of Civil Procedure, the Mississippi Rules of Evidence and the Mississippi Rules of Court. When private persons are the moving parties, other parties to the proceeding must give prompt notice of issues controverted in fact or law; and in other instances agencies may require, by rule, responsive pleading. In fixing the time and place for hearings, due regard must be had for the convenience and necessity of the parties or their representatives.
(4) The agency shall give all interested parties opportunity for:
(a) The submission and consideration of facts, arguments, offers of settlement or proposals of adjustment when time, the nature of the proceeding and the public interest permit;
(b) To the extent that the parties are unable to determine a controversy by consent, hearing and decision on notice; and
(c) Any and all discovery allowed under the Mississippi Rules of Civil Procedure, including, but not limited to, depositions of parties.
(5) The employee who presides at the reception of evidence shall make the recommended decision or initial decision, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, an employee may not:
(a) Consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or
(b) Be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.
(6) An agency conducting a hearing may not perform both the judiciary and investigative/prosecutorial function. Performing both of these functions is repugnant to the public policy of Mississippi and is a clear violation of the separation of powers doctrine. All investigative and prosecutorial functions must be performed by the Attorney General.
Any employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case shall be guilty of a misdemeanor and fined no more than Twenty-five Thousand Dollars ($25,000.00) and sentenced to no more than thirty (30) days of incarceration.
SECTION 37. (1) A person compelled to appear in person before an agency or representative of an agency is entitled to be accompanied, represented and advised by counsel or, if permitted by the agency, by another qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment or determination of an issue, request or controversy in a proceeding, whether interlocutory, summary or otherwise, or in connection with an agency function. With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.
(2) An agency act, proceeding or procedure may not be instituted by an anonymous complaint. Anonymous complaints, as a basis for initiating a proceeding, are repugnant to the public policy of Mississippi and violate the Confrontation Clause of the Constitutions of the United States and Mississippi. Any agency or individual acting on or trying to institute an anonymous act shall be liable for any and all tortuous remedies available under the laws of the State of Mississippi and the common law.
(3) Process, requirement of a report, inspection or other investigative act or demand may not be issued, made or enforced except as authorized by law. A person compelled to submit data or evidence may retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding, the witness may for good cause be limited to inspection of the official transcript of his testimony.
(4) Agency subpoenas authorized by law must be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought. On contest, the court shall sustain the subpoena or similar process or demand to the extent that it is found to be in accordance with law. In a proceeding for enforcement, the court shall issue an order requiring the appearance of the witness or the production of the evidence or data within a reasonable time under penalty of punishment for contempt in case of contumacious failure to comply.
(5) Prompt notice must be given of the denial, in whole or in part, of a written application, petition or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice must be accompanied by a brief statement of the grounds for denial.
SECTION 38. (1) This section applies to those hearings required to be conducted in accordance with this section.
(2) There shall preside at the taking of evidence:
(a) The agency;
(b) One or more members of the body which comprises the agency; or
(c) One or more judges appointed under the laws of the State of Mississippi.
(3) Subject to published rules of the agency and within its powers, only judges presiding at hearings may:
(a) Administer oaths and affirmations;
(b) Issue subpoenas authorized by law;
(c) Rule on offers of proof and receive relevant evidence;
(d) Take depositions or have depositions taken when the ends of justice would be served;
(e) Regulate the course of the hearing;
(f) Hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution;
(g) Inform the parties as to the availability of one or more alternative means of dispute resolution and encourage use of those methods;
(h) Require the attendance at any conference held pursuant to paragraph (f) of at least one (1) representative of each party who has authority to negotiate concerning resolution of issues in controversy;
(i) Dispose of procedural requests or similar matters; and
(j) Take other action authorized by agency rule consistent with this act.
(4) Except as may otherwise be provided, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency, as a matter of policy, shall provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts of the record cited by a party and supported by and in accordance with the reliable, probative and substantial evidence. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may adopt procedures for the submission of all or part of the evidence in written form if a party will not be prejudiced by those procedures.
(5) When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, on a timely request, a party is entitled to an opportunity to show the contrary.
SECTION 39. (1) This section applies when a hearing is required to be conducted in accordance with Section 38 of this act.
(2) (a) Before a recommended, initial or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity for a show cause hearing to submit for the consideration of the agency and its employees participating in the decisions:
(i) Proposed findings and conclusions, or exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and
(ii) Supporting reasons for the exceptions or proposed findings or conclusions.
(b) The record must show the ruling on each finding, conclusion or exception presented. All decisions, including initial, recommended and tentative decisions, are a part of the record and must include a statement of:
(i) Findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law or discretion presented on the record; and
(ii) The appropriate rule, order, sanction, relief or denial thereof.
(3) (a) In an agency proceeding that is subject to subsection (1) of this section, except to the extent required for the disposition of ex parte matters as authorized by law:
(i) No interested person outside the agency may make or knowingly cause to be made an ex parte communication relevant to the merits of the proceeding to any member of the body comprising the agency, judge or other employee who is or reasonably may be expected to be involved in the decisional process of the proceeding;
(ii) No member of the body comprising the agency, judge or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding may make or knowingly cause to be made an ex parte communication relevant to the merits of the proceeding to any interested person outside the agency;
(iii) A member of the body comprising the agency, judge or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:
1. All such written communications;
2. Memoranda stating the substance of all such oral communications; and
3. All written responses and memoranda stating the substance of all oral responses to the materials described in 1. and 2. of this subparagraph;
(iv) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, judge or other employee presiding at the hearing may require, to the extent consistent with the interests of justice and the policy of the underlying statutes, the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded or otherwise adversely affected on account of the violation;
(v) An agency, employee or agent may not be an interested party in any proceeding of that agency at any stage of the agency's business; and
(vi) The prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case may they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of that knowledge.
(b) This subsection does not constitute authority to withhold information from the Legislature.
SECTION 40. (1) This section applies to the exercise of a power or authority.
(2) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.
(3) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with Sections 37 and 38 of this act or other proceedings required by law and shall make its decision.
SECTION 41. This act does not limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, requirements or privileges relating to evidence or procedure apply equally to agencies and persons.
SECTION 42. A person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review of the agency action. An action in a circuit, county or chancery court of the home county of the complainant seeking any relief and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority may not be dismissed, nor relief therein denied, on the ground that it is against the agency or that the State of Mississippi is an indispensable party. The State of Mississippi may be named as a defendant in any such action, and a judgment or decree may be entered against the State of Mississippi: however, any mandatory or injunctive decree must specify the state officer or officers, by name or title, and their successors in office personally responsible for compliance. Nothing in this section: affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief that is sought.
SECTION 43. The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the State of Mississippi, the agency by its official title or the appropriate officer. Except to the extent that prior, adequate and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.
SECTION 44. Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
SECTION 45. When an agency ruling and an appeal is filed timely, the ruling and its execution must be postponed and the effective date of action taken by it postponed, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
SECTION 46. To the extent necessary, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action. The reviewing court shall determine all appeals de novo and should consider finding:
(a) Compelling agency action unlawfully withheld or unreasonably delayed; and
(b) Holding unlawful and setting aside agency action, findings and conclusions found to be:
(i) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(ii) Contrary to constitutional right, power, privilege or immunity;
(iii) In excess of statutory jurisdiction, authority or limitations, or short of statutory right;
(iv) Without observance of procedure required by law;
(v) Unsupported by substantial evidence or otherwise reviewed on the record of an agency hearing provided by statute;
(vi) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court; or
(vii) Any and all other issues properly raised on appeal and within the legal and equitable powers of the court.
In making the foregoing determinations, the court shall review the matter de novo, and due account must be taken of the rule of prejudicial error.
SECTION 47. (1) (a) Before a rule can take effect, the agency promulgating the rule shall submit a report to each House of the Legislature and the Attorney General containing the following:
(i) A copy of the rule;
(ii) A concise general statement relating to the rule, including whether it is a major rule; and
(iii) The proposed effective date of the rule.
(b) On the date of the submission of the report under paragraph (a), the agency promulgating the rule shall submit to the Attorney General and make available to each House of the Legislature the following:
(i) A complete copy of the cost-benefit analysis of the rule, if any;
(ii) The agency's actions relevant to this act; and
(iii) Any other relevant information or requirements under any other act and relevant executive orders.
(c) Upon receipt of a report submitted under paragraph (a), each House shall provide copies of the report to the chairman of each standing committee with jurisdiction to report a bill to amend the provision of law under which the rule is issued.
(2) (a) The Attorney General shall provide a report on each major rule to the committees of jurisdiction in each House of the Legislation by the end of fifteen (15) calendar days after the submission or publication date. The report of the Attorney General must include an assessment of the agency's compliance with procedural steps required under subsection (1)(b).
(b) State agencies must cooperate with the Attorney General by providing information relevant to the Attorney General's report under paragraph (a).
(3) A major rule relating to a report submitted under subsection (1) must take effect on the latest of:
(a) The latter of the date occurring sixty (60) days after the date on which:
(i) The Legislature receives the report submitted under subsection (1); or
(ii) The rule is published, if so published;
(b) If the Legislature passes a joint resolution of disapproval and the Governor signs a veto of the resolution, the earlier date:
(i) On which either House of Legislature votes and fails to override the veto of the Governor; or
(ii) Occurring thirty (30) legislative days after the date on which the Legislature received the veto and objections of the Governor; or
(c) The date the rule would have otherwise taken effect, if not for this section (unless a joint resolution of disapproval).
(4) Except for a major rule, a rule shall take effect as otherwise provided by law after submission to the Legislature under subsection (1).
(5) A rule may not take effect or continue if the Legislature enacts a joint resolution of disapproval of the rule.
(6) A rule that does not take effect or does not continue under subsection (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued unless the reissued or new rule is authorized specifically by a law enacted after the date of the joint resolution disapproving the original rule.
SECTION 48. (1) For purposes of this section, the term "joint resolution" means only a joint resolution introduced in the period beginning on the date on which the report referred to in Section 47 of this act received by the Legislature and ending sixty (60) days thereafter, the matter after the resolving clause of which is as follows: "That the Mississippi Legislature, by way of the House of Representatives and the Senate, disapproves the rule submitted by the __________ relating to __________, and such rule shall have no force or effect." (The blank spaces being appropriately filled in).
(2) (a) A joint resolution described in subsection (1) must be referred to the committees in each House of the Legislature with jurisdiction.
(b) For purposes of this section, the term "submission or publication date" means the later of the date on which:
(i) The Legislative receives the report; or
(ii) The rule is published, if so published.
(3) In the Senate, if the committee to which a joint resolution described in subsection (1) has been referred has not reported the joint resolution or an identical joint resolution at the end of twenty (20) calendar days after the submission or publication date defined under subsection (2)(b), the committee may be discharged from further consideration of such joint resolution upon a petition supported in writing by thirty (30) members of the Senate, and the joint resolution must be placed on the calendar.
(4) (a) In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged under subsection (2) from further consideration of a joint resolution described in subsection (1), at any time thereafter, it is in order, even though a previous motion to the same effect has been disagreed to, for a motion to proceed to consideration of the joint resolution, and all points of order against the joint resolution and against consideration of the joint resolution are waived. The motion is not subject to amendment, to a motion to postpone or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of.
(b) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than ten (10) hours, which must be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order.
(c) In the Senate, immediately following the conclusion of the debate on a joint resolution described in subsection (1), and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of the joint resolution shall occur.
(d) Appeals from the decisions of the chair relating to the application of the rules of the Senate to the procedure relating to a joint resolution described in subsection (1) shall be decided without debate.
(5) In the Senate, the procedure specified in subsections (3) and (4) shall not apply to the consideration of a joint resolution respecting a rule:
(a) After the expiration of the sixty (60) legislative days beginning with the applicable submission or publication date; or
(b) If the report was submitted during the applicable period, after the expiration of the sixty (60) legislative days beginning on the 15th legislative day after the succeeding session of the Legislature first convenes.
(6) If, before the passage by one (1) House of a joint resolution of that House it receives from the other House a joint resolution described in subsection (1), then the following procedures shall apply:
(a) The joint resolution of the other House shall not be referred to a committee.
(b) With respect to a joint resolution described in subsection (1) of the House receiving the joint resolution:
(i) The procedure in that House shall be the same as if no joint resolution had been received from the other House; but
(ii) The vote on final passage shall be on the joint resolution of the other House.
(7) This section is enacted by the Legislature:
(a) As an exercise of the rulemaking power of the House of Representatives and Senate, respectively, and as such, it is deemed a part of the Joint Rules of the Mississippi Legislature but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution described in subsection (1), and it supersedes other rules only to the extent that it is inconsistent with those rules; and
(b) With full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as is the case of any other rule of that House.
(8) No determination, finding, action or omission under this section shall be subject to judicial review.
SECTION 49. Section 25-43-1.101, Mississippi Code of 1972, is brought forward as follows:
25-43-1.101. (1) This chapter may be cited as the "Mississippi Administrative Procedures Law."
(2) This chapter is intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public. Nothing in this chapter shall be construed as invalidating any rule or regulation adopted before July 1, 2005, if such rule or regulation was properly adopted in accordance with the law as it existed at the time of adoption. Nothing in this chapter is meant to discourage agencies from adopting procedures providing greater protections to the public or conferring additional rights upon the public; and save for express provisions of this chapter to the contrary, nothing in this chapter is meant to abrogate in whole or in part any statute prescribing procedural duties for an agency which are greater than or in addition to those provided here. This chapter is meant to apply to all rule-making that is not specifically excluded from this chapter or some portion thereof by its express terms or by the express terms of another chapter.
The purposes of the Mississippi Administrative Procedures Law are: to provide legislative oversight of powers and duties delegated to administrative agencies; to increase public accountability of administrative agencies; to simplify government by assuring a uniform minimum procedure to which all agencies will be held in the conduct of their most important functions; to increase public access to governmental information; and to increase public participation in the formulation of administrative rules. In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration. This chapter is not meant to alter the substantive rights of any person or agency. Its impact is limited to procedural rights with the expectation that better substantive results will be achieved in the everyday conduct of state government by improving the process by which those results are attained.
(3) From and after July 1, 2005, any reference to the Mississippi Administrative Procedure Act, the Mississippi Administrative Procedures Act, the Mississippi Administrative Procedure Law, or the Mississippi Administrative Procedures Law, being Section 25-43-1 et seq., Mississippi Code of 1972, shall be deemed to mean and refer to this chapter.
SECTION 50. Section 25-43-1.102, Mississippi Code of 1972, is brought forward as follows:
25-43-1.102. As used in this chapter, the following terms shall have the meanings ascribed to them in this section unless the context otherwise requires:
(a) "Agency" means a board, commission, department, officer or other administrative unit of this state, including the agency head, and one or more members of the agency head or agency employees directly or indirectly purporting to act on behalf or under the authority of the agency head. The term does not include the Legislature or any of its component units, the judiciary or any of its component units or the Governor. The term does not include a political subdivision of the state or any of the administrative units of a political subdivision. To the extent it purports to exercise authority subject to any provision of this chapter, an administrative unit otherwise qualifying as an "agency" must be treated as a separate agency even if the unit is located within or subordinate to another agency.
(b) "Agency head" or "head of the agency" means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law.
(c) "Agency proceeding" or "proceeding" means the process by which an agency considers:
(i) A declaratory opinion pursuant to Section 25-43-2.103, or
(ii) A rule pursuant to Article III of this chapter.
(d) "Agency record" means the official rule-making record of an agency pursuant to Section 25-43-3.112.
(e) "Declaratory opinion" means an agency opinion rendered in accordance with the provisions of Section 25-43-2.103.
(f) "Order" means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons. An order shall be in writing signed by a person with authority to render the order, or if more than one (1) person has such authority by at least that number of such persons as jointly have the authority to render the order, or by a person authorized to render the order on behalf of all such persons. The term does not include an executive order issued by the Governor pursuant to Section 25-43-1.104, an opinion issued by the Attorney General pursuant to Section 7-5-25, an opinion issued by the Ethics Commission pursuant to Section 25-4-17, or a declaratory opinion rendered in accordance with Section 25-43-2.103.
(g) "Person" means an individual, partnership, corporation, association, governmental subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency.
(h) "Provision of law" or "law" means the whole or a part of the federal or state Constitution, or of any federal or state (i) statute, (ii) case law or common law, (iii) rule of court, (iv) executive order, or (v) rule or order of an administrative agency.
(i) "Rule" means the whole or a part of an agency regulation or other statement of general applicability that implements, interprets or prescribes:
(i) Law or policy, or
(ii) The organization, procedure or practice requirements of an agency. The term includes the amendment, repeal or suspension of an existing rule. "Rule" does not include:
1. A regulation or statement concerning only the internal management of an agency which does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public;
2. A regulation or statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations or inspections, settling commercial disputes, negotiating commercial arrangements or in the defense, prosecution or settlement of cases, if disclosure of the criteria or guidelines would:
a. Enable law violators to avoid detection;
b. Facilitate disregard of requirements imposed by law; or
c. Give a clearly improper advantage to persons who are in an adverse position to the state;
3. A regulation or statement that only establishes specific prices to be charged for particular goods or services sold by an agency;
4. A regulation or statement concerning only the physical servicing, maintenance or care of agency owned or operated facilities or property;
5. A regulation or statement relating only to the use of a particular facility or property owned, operated or maintained by the state or any of its subdivisions, if the substance of the regulation or statement is adequately indicated by means of signs or signals to persons who use the facility or property;
6. A regulation or statement directly related only to inmates of a correctional or detention facility, students enrolled in an educational institution or patients admitted to a hospital, if adopted by that facility, institution or hospital;
7. A form whose contents or substantive requirements are prescribed by rule or statute, and instructions for the execution or use of the form;
8. An agency budget;
9. A compact or agreement between an agency of this state and one or more agencies of another state or states; or
10. An opinion of the Attorney General pursuant to Section 7-5-25, an opinion of the Ethics Commission pursuant to Section 25-4-17, or an Executive Order of the Governor.
(j) "Rule-making" means the process for formulation and adoption of a rule.
SECTION 51. Section 25-43-1.103, Mississippi Code of 1972, is brought forward as follows:
25-43-1.103. Applicability and relation to other law.
(1) This chapter applies to all agencies and all proceedings not expressly exempted under this chapter.
(2) This chapter creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.
(3) Specific statutory provisions which govern agency proceedings and which are in conflict with any of the provisions of this chapter shall continue to be applied to all proceedings of any such agency to the extent of such conflict only.
(4) The provisions of this chapter shall not be construed to amend, repeal or supersede the provisions of any other law; and, to the extent that the provisions of any other law conflict or are inconsistent with the provisions of this chapter, the provisions of such other law shall govern and control.
(5) An agency may grant procedural rights to persons in addition to those conferred by this chapter so long as rights conferred upon other persons by any provision of law are not substantially prejudiced.
SECTION 52. Section 25-43-1.104, Mississippi Code of 1972, is brought forward as follows:
25-43-1.104. Suspension of chapter’s provisions when necessary to avoid loss of federal funds or services.
(1) To the extent necessary to avoid a denial of funds or services from the United States which would otherwise be available to the state, the Governor, by executive order, may suspend, in whole or in part, one or more provisions of this chapter. The Governor, by executive order, shall declare the termination of a suspension as soon as it is no longer necessary to prevent the loss of funds or services from the United States.
(2) If any provision of this chapter is suspended pursuant to this section, the Governor shall promptly report the suspension to the Legislature. The report may include recommendations concerning desirable legislation that may be necessary to conform this chapter to federal law, including the exemption, if appropriate, of a particular program from the provisions of this chapter.
SECTION 53. Section 25-43-1.105, Mississippi Code of 1972, is brought forward as follows:
25-43-1.105. Waiver of rights.
Except to the extent precluded by another provision of law, a person may waive any right conferred upon that person by this chapter, or by any rule made pursuant to this chapter.
SECTION 54. Section 25-43-1.106, Mississippi Code of 1972, is brought forward as follows:
25-43-1.106. Filings with agency; service; computation of time.
(1) (a) Whenever, under this chapter, a party or any person is permitted or required to file with an agency any pleading, motion or other document, filing must be made by delivery of the document to the agency, by mailing it to the agency or by transmitting it to the agency by electronic means, including, but not limited to, facsimile transfer or e-mail. Filing by electronic means is complete when the electronic equipment being used by the agency acknowledges receipt of the material. If the equipment used by the agency does not automatically acknowledge transmission, service is not complete until the filing party obtains an acknowledgment from the agency. Filing by mail is complete upon receipt by the agency.
(b) The agency may implement this section by agency rule.
(2) (a) Whenever service is required by this chapter, and whether the service is made by a party, an agency or a presiding officer, service of orders, notices, pleadings, motions and other documents upon a party shall be made by delivering a copy to the party, by transmitting it to the party by electronic means, including, but not limited to, facsimile transfer or e-mail, or by mailing it to the party at the party’s last known address. Delivery of a copy means handing it to a party, leaving it at the office of a party with a person in charge thereof, or leaving it at the dwelling house or usual place of abode of the party with some person of suitable age and discretion then residing therein. Service by electronic means is complete when the electronic equipment being used by the party being served acknowledges receipt of the material. If the equipment used by the party being served does not automatically acknowledge the transmission, service is not complete until the sending party obtains an acknowledgment from the recipient. Service by mail is complete upon mailing.
(b) Whenever service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney.
(c) Whenever an agency issues an order or serves a notice or other document, the order or notice or other document shall be dated and shall be deemed to have been issued on the day it is served on the parties to the matter. If the order or notice or other document is to be served by mail, it shall be dated and shall be deemed to have been issued on the day it is mailed.
(3) (a) In computing any period of time prescribed or allowed by this Article 1, by order of an agency, or by any applicable statute or agency rule, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, as defined by statute, or any other day when the agency’s office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday or any other day when the agency’s office is closed. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. In the event any legal holiday falls on a Sunday, the next following day shall be a legal holiday.
(b) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice, order, pleading, motion or other paper upon him and the notice or paper is served upon him by mail, three (3) days shall be added to the prescribed period.
SECTION 55. Section 25-43-1.107, Mississippi Code of 1972, is brought forward as follows:
25-43-1.107. Every agency as defined in this chapter shall, no later than October 1, 2003, file with the Secretary of the Senate and the Clerk of the House a report which outlines any conflicts between this chapter and any other laws affecting the agency. This report shall include proposed legislation to bring the other laws into conformity with the requirements of this chapter. The Secretary of State shall, no later than December 1, 2003, file with the Secretary of the Senate and the Clerk of the House a list of sections which the Secretary of State believes conflict with this chapter. The Secretary of the Senate and the Clerk of the House shall maintain a list of agencies which have complied with this section.
SECTION 56. Section 25-43-2.101, Mississippi Code of 1972, is brought forward as follows:
25-43-2.101. Publication, compilation, indexing and public inspection of rules.
(1) Subject to the provisions of this chapter, the Secretary of State shall prescribe a uniform numbering system, form, style and transmitting format for all proposed and adopted rules caused to be published by him and, with prior approval of each respective agency involved, may edit rules for publication and codification without changing the meaning or effect of any rule.
(2) The Secretary of State shall cause an administrative bulletin to be published in a format and at such regular intervals as the Secretary of State shall prescribe by rule. Upon proper filing of proposed rules, the Secretary of State shall publish them in the administrative bulletin as expeditiously as possible. The administrative bulletin must contain:
(a) Notices of proposed rule adoption prepared so that the text of the proposed rule shows the text of any existing rule proposed to be changed and the change proposed;
(b) Any other notices and materials designated by law for publication therein; and
(c) An index to its contents by subject.
(3) The Secretary of State shall cause an administrative bulletin to be published in a format and at such regular intervals as the Secretary of State shall prescribe by rule. Upon proper filing of newly adopted rules, the Secretary of State shall publish them as expeditiously as possible. The administrative bulletin must contain:
(a) Newly filed adopted rules prepared so that the text shows the text of any existing rule being changed and the change being made;
(b) Any other notices and materials designated by law for publication therein; and
(c) An index to its contents by subject.
(4) The Secretary of State retains the authority to reject proposed and newly adopted rules not properly filed in accordance with the Secretary of State’s rules prescribing the numbering system, form, style or transmitting format for such filings. The Secretary of State shall not be empowered to reject filings for reasons of the substance or content or any proposed or newly adopted rule. The Secretary of State shall notify the agency of its rejection of a proposed or newly adopted rule as expeditiously as possible and accompany such notification with a stated reason for the rejection. A rejected filing of a proposed or newly adopted rule does not constitute filing pursuant to Section 25-43-3.101 et seq. of this chapter.
(5) (a) The Secretary of State shall cause an administrative code to be compiled, indexed by subject and published in a format prescribed by the Secretary of State by rule. All of the effective rules of each agency must be published and indexed in that publication. The Secretary of State shall also cause supplements to the administrative code to be published in a format and at such regular intervals as the Secretary of State shall prescribe by rule.
(b) The Joint Legislative Committee on Compilation, Revision and Publication of Legislation is hereby authorized to contract with a reputable and competent publishing company on such terms and conditions and at such prices as may be deemed proper to digest, compile, annotate, index and publish the state agency rules and regulations.
(6) (a) Copyrights of the Mississippi Administrative Code, including, but not limited to, cross references, tables of cases, notes of decisions, tables of contents, indices, source notes, authority notes, numerical lists and codification guides, other than the actual text of rules or regulations, shall be taken by and in the name of the publishers of said compilation. Such publishers shall thereafter promptly assign the same to the State of Mississippi and said copyright shall be owned by the state.
(b) Any information appearing on the same leaf with the text of any rule or regulation may be incidentally reproduced in connection with the reproduction of such rule or regulation, if such reproduction is for private use and not for resale.
(7) The Secretary of State may omit from the administrative bulletin or code any proposed or filed adopted rule, the publication in hard copy of which would be unduly cumbersome, expensive or otherwise inexpedient, if:
(a) Knowledge of the rule is likely to be important to only a small class of persons;
(b) On application to the issuing agency, the proposed or adopted rule in printed or processed form is made available at no more than its cost of reproduction; and
(c) The administrative bulletin or code contains a notice stating in detail the specific subject matter of the omitted proposed or adopted rule and how a copy of the omitted material may be obtained.
(8) The administrative bulletin and administrative code with supplements must be furnished to designated officials without charge and to all subscribers at a reasonable cost to be determined by the Secretary of State. Each agency shall also make available for public inspection and copying those portions of the administrative bulletin and administrative code containing all rules adopted or used by the agency in the discharge of its functions, and the index to those rules.
SECTION 57. Section 25-43-2.102, Mississippi Code of 1972, is brought forward as follows:
25-43-2.102. Public inspection and indexing of agency orders.
(1) In addition to other requirements imposed by any provision of law, and subject to any confidentiality provisions established by law, each agency shall make all written final orders available for public inspection and copying and index them by name and subject.
(2) A written final order available for public inspection pursuant to subsection (1) may not be relied on as precedent by an agency to the detriment of any person until it has been made available for public inspection and indexed in the manner described in subsection (1) of this section. This provision is inapplicable to any person who has actual, timely knowledge of the order. The burden of proving that knowledge is on the agency.
SECTION 58. Section 25-43-2.103, Mississippi Code of 1972, is brought forward as follows:
25-43-2.103. Declaratory opinions. (1) Any person with a substantial interest in the subject matter may make a written request of an agency for a declaratory opinion as to the applicability to specified circumstances of a statute, rule or order within the primary jurisdiction of the agency. Such written request must clearly set forth the specific facts upon which an opinion is asked for and shall be limited to a single transaction or occurrence. An agency, through the agency head or its designee(s) by rule, shall issue a declaratory opinion in response to a written request for that opinion unless the agency determines that issuance of the opinion under the circumstances would be contrary to a rule adopted in accordance with subsection (2) of this section.
(2) Each agency shall issue rules that provide for: (a) the form, contents and filing of written requests for declaratory opinions; (b) the procedural rights of persons in relation to the written requests; and (c) the disposition of the written requests. Those rules must describe the classes of circumstances in which the agency will not issue a declaratory opinion.
(3) Within forty-five (45) days after receipt of a written request for a declaratory opinion, an agency, in writing, shall:
(a) Issue an opinion declaring the applicability of the statute, rule or order in question to the specified circumstances;
(b) Agree to issue a declaratory opinion by a specified time but no later than ninety (90) days after receipt of the written request; or
(c) Decline to issue a declaratory opinion, stating the reasons for its action.
(4) A copy of all opinions issued in response to a written request for a declaratory opinion must be mailed promptly to the requesting person.
(5) (a) When any person receives a declaratory opinion from an agency and shall have stated all the facts to govern such opinion, the agency shall take no civil or criminal action against such person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. No declaratory opinion shall be given or considered if the opinion is requested after suit is filed or prosecution begun. Any declaratory opinion rendered pursuant to this chapter shall not be binding or effective for any third party or person other than the agency issuing the declaratory opinion and the person to whom the opinion is issued and shall not be used as precedent for any other transaction or occurrence beyond that set forth by the requesting person.
(b) The authority of persons to request and receive agency declaratory opinions in no way affects the ability of any person authorized by Section 7-5-25 to request a legal opinion from the Attorney General.
(c) Subject to any confidentiality provisions established by law, each agency shall make all declaratory opinions available for public inspection and copying and shall index them by name and subject, unless information contained within such opinions is confidential by statute or exempt from public disclosure pursuant to another provision of law.
(6) Without in any way limiting a person's right to request and receive a declaratory opinion under this section, or an agency's duty to issue a declaratory opinion under this section, nothing contained in this section shall prohibit an agency from providing informal responses or advice, orally or in writing, to any inquiries or requests for information submitted to the agency. Informal responses shall not be considered a declaratory opinion under this section.
SECTION 59. Section 25-43-2.104, Mississippi Code of 1972, is brought forward as follows:
25-43-2.104. Required rule-making.
In addition to other rule-making requirements imposed by law, each agency shall:
(a) Adopt as a rule a description of the organization of the agency which states the general course and method of its operations and where and how the public may obtain information or make submissions or requests;
(b) Adopt rules of practice setting forth the nature and requirements of all formal and informal proceedings available to the public.
SECTION 60. Section 25-43-2.105, Mississippi Code of 1972, is brought forward as follows:
25-43-2.105. Model rules of procedure.
In accordance with the rule-making requirements of this chapter, the Secretary of State shall adopt model rules of procedure appropriate for use by as many agencies as possible. The model rules must deal with all general functions and duties performed in common by several agencies. Each agency may adopt as much of the model rules as is practicable under its circumstances. To the extent an agency adopts the model rules, it shall do so in accordance with the rule-making requirements of this chapter.
SECTION 61. Section 25-43-3.101, Mississippi Code of 1972, is brought forward as follows:
25-43-3.101. (1) In addition to seeking information by other methods, an agency, before filing of a notice of proposed rule adoption under Section 25-43-3.103, may solicit comments from the public on a subject matter of possible rulemaking under active consideration within the agency by causing notice to be filed with the Secretary of State for publication in the administrative bulletin of the subject matter and indicating where, when and how persons may comment.
(2) Each agency may also appoint committees of nonagency personnel or other members of the public to comment, before filing of a notice of proposed rule adoption under Section 25-43-3.103, on the subject matter of a possible rulemaking under active consideration within the agency. The membership of those committees must be filed with the Secretary of State for publication in the administrative bulletin.
SECTION 62. Section 25-43-3.102, Mississippi Code of 1972, is brought forward as follows:
25-43-3.102. Public rule-making docket.
(1) Each agency shall maintain a current, public rule-making docket.
(2) The rule-making docket may, but need not, contain a listing of the subject matter of possible rules currently under active consideration within the agency for proposal under Section 25-43-3.103 and the name and address of agency personnel with whom persons may communicate with respect to the matter.
(3) The rule-making docket must list each pending rule-making proceeding. A rule-making proceeding is pending from the time it is commenced, by proper filing with the Secretary of State of a notice of proposed rule adoption, to the time it is terminated by the filing with the Secretary of State of a notice of termination or the rule becoming effective. For each pending rule-making proceeding, the docket must indicate:
(a) The subject matter of the proposed rule;
(b) A citation to all published notices relating to the proceeding;
(c) Where written submissions or written requests for an opportunity to make oral presentations on the proposed rule may be inspected;
(d) The time during which written submissions may be made;
(e) If applicable, where and when oral presentations may be made;
(f) Where any economic impact statement and written requests for the issuance of and other information concerning an economic impact statement of the proposed rule may be inspected;
(g) The current status of the proposed rule;
(h) The date of the rule's adoption; and
(i) When the rule will become effective.
SECTION 63. Section 25-43-3.103, Mississippi Code of 1972, is brought forward as follows:
25-43-3.103. (1) At least twenty-five (25) days before the adoption of a rule an agency shall cause notice of its contemplated action to be properly filed with the Secretary of State for publication in the administrative bulletin. The notice of proposed rule adoption must include:
(a) A short explanation of the purpose of the proposed rule and the agency's reasons for proposing the rule;
(b) The specific legal authority authorizing the promulgation of rules;
(c) A reference to all rules repealed, amended or suspended by the proposed rule;
(d) Subject to Section 25-43-2.101(5), the text of the proposed rule;
(e) Where, when and how persons may present their views on the proposed rule; and
(f) Where, when and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.
(2) Within three (3) days after its proper filing with the Secretary of State for publication in the administrative bulletin, the agency shall cause a copy of the notice of proposed rule adoption to be provided to each person who has made a timely request to the agency to be placed on the mailing list maintained by the agency of persons who have requested notices of proposed rule adoptions. An agency may mail the copy to the person and may charge the person a reasonable fee for such service, which fee may be in excess of the actual cost of providing the person with a mailed copy. Alternatively, the agency may provide the copy via the Internet or by transmitting it to the person by electronic means, including, but not limited to, facsimile transfer or e-mail at no charge to the person, if the person consents to this form of delivery.
SECTION 64. Section 25-43-3.104, Mississippi Code of 1972, is brought forward as follows:
25-43-3.104. Public participation.
(1) For at least twenty-five (25) days after proper filing with the Secretary of State of the notice of proposed rule adoption, an agency shall afford persons the opportunity to submit, in writing, argument, data and views on the proposed rule.
(2) (a) An agency, in its discretion, may schedule an oral proceeding on any proposed rule. However, an agency shall schedule an oral proceeding on a proposed rule if, within twenty (20) days after the proper filing of the notice of proposed rule adoption, a written request for an oral proceeding is submitted by a political subdivision, an agency or ten (10) persons. At that proceeding, persons may present oral or written argument, data and views on the proposed rule.
(b) An oral proceeding on a proposed rule, if required, may not be held earlier than twenty (20) days after notice of its location and time is properly filed with the Secretary of State for publication in the administrative bulletin. Within three (3) days after its proper filing with the Secretary of State for publication in the administrative bulletin, the agency shall cause a copy of the notice of the location and time of the oral proceeding to be mailed to each person who has made a timely request to the agency to be placed on the mailing list maintained by the agency of persons who have requested notices of proposed rule adoptions.
(c) The agency, a member of the agency, or another presiding officer designated by the agency shall preside at a required oral proceeding on a proposed rule. Oral proceedings must be open to the public and may be recorded by stenographic or other means.
(d) An agency may issue rules for the conduct of oral rule-making proceedings or prepare reasonable guidelines or procedures for the conduct of any such proceedings. Those rules may include, but not be limited to, provisions calculated to prevent undue repetition in the oral proceedings.
SECTION 65. Section 25-43-3.105, Mississippi Code of 1972, is brought forward as follows:
[Through June 30, 2016, this section shall read as follows:]
25-43-3.105. (1) Prior to giving the notice required in Section 25-43-3.103, each agency proposing the adoption of a rule or amendment of an existing rule imposing a duty, responsibility or requirement on any person shall consider the economic impact the rule will have on the citizens of our state and the benefits the rule will cause to accrue to those citizens.
(2) Each agency shall prepare a written report providing an economic impact statement for the adoption of a rule or amendment to an existing rule imposing a duty, responsibility or requirement on any person. The economic impact statement shall include the following:
(a) The specific legal authority authorizing the promulgation of the rule.
(b) A description of:
(i) The need for the proposed action;
(ii) The benefits which will likely accrue as the result of the proposed action; and
(iii) The effect the proposed action will have on the public health, safety and welfare.
(c) An estimate of the cost to the agency, and to any other state or local government entities, of implementing and enforcing the proposed action, including the estimated amount of paperwork, and any anticipated effect on state or local revenues;
(d) An estimate of the cost or economic benefit to all persons directly affected by the proposed action;
(e) An analysis of the impact of the proposed rule on small business;
(f) A comparison of the costs and benefits of the proposed rule to the probable costs and benefits of not adopting the proposed rule or significantly amending an existing rule;
(g) A determination of whether less costly methods or less intrusive methods exist for achieving the purpose of the proposed rule where reasonable alternative methods exist which are not precluded by law;
(h) A description of reasonable alternative methods, where applicable, for achieving the purpose of the proposed action which were considered by the agency and a statement of reasons for rejecting those alternatives in favor of the proposed rule; and
(i) A detailed statement of the data and methodology used in making estimates required by this subsection.
(3) No rule or regulation shall be declared invalid based on a challenge to the economic impact statement for the rule unless the issue is raised in the agency proceeding. No person shall have standing to challenge a rule, based upon the economic impact statement or lack thereof, unless that person provided the agency with information sufficient to make the agency aware of specific concerns regarding the statement in an oral proceeding or in written comments regarding the rule. The grounds for invalidation of an agency action, based upon the economic impact statement, are limited to the agency's failure to adhere to the procedure for preparation of the economic impact statement as provided in this section, or the agency's failure to consider information submitted to the agency regarding specific concerns about the statement, if that failure substantially impairs the fairness of the rule-making proceeding.
(4) A concise summary and the full text of the economic impact statement must be properly filed with the Secretary of State for publication in the administrative bulletin and the period during which persons may make written submissions on the proposed rule shall not expire until at least twenty (20) days after the date of such proper filing.
(5) The properly filed summary of the economic impact statement must also indicate where, when and how persons may present their views on the proposed rule and demand an oral proceeding on the proposed rule if one is not already provided.
[From and after July 1, 2016, this section shall read as follows:]
25-43-3.105. (1) Prior to giving the notice required in Section 25-43-3.103, each agency proposing the adoption of a rule or significant amendment of an existing rule imposing a duty, responsibility or requirement on any person shall consider the economic impact the rule will have on the citizens of our state and the benefits the rule will cause to accrue to those citizens. For purposes of this section, a "significant amendment" means any amendment to a rule for which the total aggregate cost to all persons required to comply with that rule exceeds One Hundred Thousand Dollars ($100,000.00).
(2) Each agency shall prepare a written report providing an economic impact statement for the adoption of a rule or significant amendment to an existing rule imposing a duty, responsibility or requirement on any person, except as provided in subsection (7) of this section. The economic impact statement shall include the following:
(a) A description of the need for and the benefits which will likely accrue as the result of the proposed action;
(b) An estimate of the cost to the agency, and to any other state or local government entities, of implementing and enforcing the proposed action, including the estimated amount of paperwork, and any anticipated effect on state or local revenues;
(c) An estimate of the cost or economic benefit to all persons directly affected by the proposed action;
(d) An analysis of the impact of the proposed rule on small business;
(e) A comparison of the costs and benefits of the proposed rule to the probable costs and benefits of not adopting the proposed rule or significantly amending an existing rule;
(f) A determination of whether less costly methods or less intrusive methods exist for achieving the purpose of the proposed rule where reasonable alternative methods exist which are not precluded by law;
(g) A description of reasonable alternative methods, where applicable, for achieving the purpose of the proposed action which were considered by the agency and a statement of reasons for rejecting those alternatives in favor of the proposed rule; and
(h) A detailed statement of the data and methodology used in making estimates required by this subsection.
(3) No rule or regulation shall be declared invalid based on a challenge to the economic impact statement for the rule unless the issue is raised in the agency proceeding. No person shall have standing to challenge a rule, based upon the economic impact statement or lack thereof, unless that person provided the agency with information sufficient to make the agency aware of specific concerns regarding the statement in an oral proceeding or in written comments regarding the rule. The grounds for invalidation of an agency action, based upon the economic impact statement, are limited to the agency's failure to adhere to the procedure for preparation of the economic impact statement as provided in this section, or the agency's failure to consider information submitted to the agency regarding specific concerns about the statement, if that failure substantially impairs the fairness of the rule-making proceeding.
(4) A concise summary of the economic impact statement must be properly filed with the Secretary of State for publication in the administrative bulletin and the period during which persons may make written submissions on the proposed rule shall not expire until at least twenty (20) days after the date of such proper filing.
(5) The properly filed summary of the economic impact statement must also indicate where persons may obtain copies of the full text of the economic impact statement and where, when and how persons may present their views on the proposed rule and demand an oral proceeding on the proposed rule if one is not already provided.
(6) If the agency has made a good-faith effort to comply with the requirements of subsections (1) and (2) of this section, the rule may not be invalidated on the ground that the contents of the economic impact statement are insufficient or inaccurate.
(7) This section does not apply to the adoption of:
(a) Any rule which is required by the federal government pursuant to a state/federal program delegation agreement or contract;
(b) Any rule which is expressly required by state law; and
(c) A temporary rule adopted pursuant to Section 25-43-3.108.
SECTION 66. Section 25-43-3.106, Mississippi Code of 1972, is brought forward as follows:
25-43-3.106. Time and manner of rule adoption.
(1) An agency may not adopt a rule until the period for making written submissions and oral presentations has expired.
(2) Following the proper filing with the Secretary of State of the notice of proposed rule adoption, an agency shall adopt a rule pursuant to the rule-making proceeding or terminate the proceeding by proper filing with the Secretary of State of a notice to that effect for publication in the administrative bulletin.
(3) Before the adoption of a rule, an agency shall consider the written submissions, oral submissions or any memorandum summarizing oral submissions, and any economic impact statement, provided for by this Article III.
(4) Within the scope of its delegated authority, an agency may use its own experience, technical competence, specialized knowledge and judgment in the adoption of a rule.
SECTION 67. Section 25-43-3.107, Mississippi Code of 1972, is brought forward as follows:
25-43-3.107. (1) An agency shall not adopt a rule that differs from the rule proposed in the notice of proposed rule adoption on which the rule is based unless all of the following apply:
(a) The differences are within the scope of the matter announced in the notice of proposed rule adoption and are in character with the issues raised in that notice;
(b) The differences are a logical outgrowth of the contents of that notice of proposed rule adoption and the comments submitted in response thereto; and
(c) The notice of proposed rule adoption provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.
(2) In determining whether the notice of proposed rule adoption provided fair warning that the outcome of that rulemaking proceeding could be the rule in question, an agency shall consider all of the following factors:
(a) The extent to which persons who will be affected by the rule should have understood that the rulemaking proceeding on which it is based could affect their interests;
(b) The extent to which the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the notice of proposed rule adoption; and
(c) The extent to which the effects of the rule differ from the effects of the proposed rule contained in the notice of proposed rule adoption.
SECTION 68. Section 25-43-3.108, Mississippi Code of 1972, is brought forward as follows:
25-43-3.108. Exemption from public rule-making procedures for temporary rules.
If an agency finds that an imminent peril to the public health, safety or welfare requires adoption of a rule upon fewer than twenty-five (25) days' notice and states in writing its reasons for that finding, it may proceed without prior notice of hearing or upon any abbreviated notice and hearing that it finds practicable to adopt an emergency rule. The rule may be effective for a period of not longer than one hundred twenty (120) days, renewable once for a period not exceeding ninety (90) days, but the adoption of an identical rule under subsection (1) of this section is not precluded.
SECTION 69. Section 25-43-3.109, Mississippi Code of 1972, is brought forward as follows:
25-43-3.109. (1) Each rule adopted by an agency must contain the text of the rule and:
(a) The date the agency adopted the rule;
(b) An indication of any change between the text of the proposed rule contained in the published notice of proposed rule adoption and the text of the rule as finally adopted, with the reasons for any substantive change;
(c) Any changes to the information contained in the notice of proposed rule adoption as required by subsection (1)(a), (b) or (c) of Section 25-43-3.103;
(d) Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule; and
(e) The effective date of the rule if other than that specified in Section 25-43-3.113(1).
(2) To the extent feasible, each rule should be written in clear and concise language understandable to persons who may be affected by it.
(3) An agency may incorporate, by reference in its rules and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation that has been adopted by an agency of the United States or of this state, another state or by a nationally recognized organization or association, if incorporation of its text in agency rules would be unduly cumbersome, expensive or otherwise inexpedient. The reference in the agency rules must fully identify the incorporated matter with an appropriate citation. An agency may incorporate by reference such matter in its rules only if the agency, organization or association originally issuing that matter makes copies of it readily available to the public. The rules must state if copies of the incorporated matter are available from the agency issuing the rule or where copies of the incorporated matter are available from the agency of the United States, this state, another state or the organization or association originally issuing that matter.
(4) In preparing its rules pursuant to this Article III, each agency shall follow the uniform numbering system, form and style prescribed by the Secretary of State.
SECTION 70. Section 25-43-3.110, Mississippi Code of 1972, is brought forward as follows:
25-43-3.110. Agency rule-making record.
(1) An agency shall maintain an official rule-making record for each rule it (a) proposes or (b) adopts. The agency has the exclusive authority to prepare and exclusive authority to certify the record or any part thereof, including, but not limited to, any transcript of the proceedings, and the agency's certificate shall be accepted by the court and by any other agency. The record must be available for public inspection.
(2) The agency rule-making record must contain:
(a) Copies of all notices of proposed rule-making or oral proceedings or other publications in the administrative bulletin with respect to the rule or the proceeding upon which the rule is based;
(b) Copies of any portions of the agency's public rule-making docket containing entries relating to the rule or the proceeding upon which the rule is based;
(c) All written requests, submissions and comments received by the agency and all other written materials considered by the agency in connection with the formulation, proposal or adoption of the rule or the proceeding upon which the rule is based;
(d) Any official transcript of oral presentations made in the proceeding upon which the rule is based or, if not transcribed, any tape recording or stenographic record of those presentations, and any memorandum prepared by a presiding official summarizing the contents of those presentations. The word "transcript" includes a written transcript, a printed transcript, an audible audiotape or videotape that is indexed and annotated so that it is readily accessible and any other means that the agency may have by rule provided for the reliable and accessible preservation of the proceeding;
(e) A copy of any economic impact statement prepared for the proceeding upon which the rule is based; and
(f) A copy of the rule and related information set out in Section 25-43-3.109 as filed in the Office of the Secretary of State.
(3) The agency shall have authority to engage such persons and acquire such equipment as may be reasonably necessary to record and preserve in any technically and practicably feasible manner all matters and all proceedings had at any rule-making proceeding.
(4) Upon judicial review, the record required by this section constitutes the official agency rule-making record with respect to a rule. Except as otherwise required by a provision of law, the agency rule-making record need not constitute the exclusive basis for agency action on that rule or for judicial review thereof.
SECTION 71. Section 25-43-3.111, Mississippi Code of 1972, is brought forward as follows:
25-43-3.111. (1) A rule adopted after July 1, 2005, is invalid unless adopted in substantial compliance with the provisions of Sections 25-43-3.102 through 25-43-3.110. Inadvertent failure to mail a notice of proposed rule adoption to any person as required by Section 25-43-3.103(2) does not invalidate a rule.
(2) An action to contest the validity of a rule on the grounds of its noncompliance with any provision of Sections 25-43-3.102 through 25-43-3.110 must be commenced within one (1) year after the effective date of the rule.
SECTION 72. Section 25-43-3.112, Mississippi Code of 1972, is brought forward as follows:
25-43-3.112. An agency shall file in the Office of the Secretary of State each rule it adopts and all rules existing on July 1, 2005, that have not previously been filed. The filing must be done as soon after adoption of the rule as is practicable. At the time of filing, each rule adopted after July 1, 2005, must have included in or attached to it the material set out in Section 25-43-3.109. The Secretary of State shall affix to each rule and statement a certification of the date of filing and keep a permanent register open to public inspection of all filed rules and attached material. In filing a rule, each agency shall use a standard format prescribed by the Secretary of State.
SECTION 73. Section 25-43-3.113, Mississippi Code of 1972, is brought forward as follows:
25-43-3.113. (1) Except to the extent subsection (2) or (3) of this section provides otherwise, each rule adopted after July 1, 2005, becomes effective thirty (30) days after its proper filing in the Office of the Secretary of State.
(2) (a) A rule becomes effective on a date later than that established by subsection (1) of this section if a later date is required by another statute or specified in the rule.
(b) A rule may become effective immediately upon its filing or on any subsequent date earlier than that established by subsection (1) of this section if the agency establishes such an effective date and finds that:
(i) It is required by Constitution, statute or court order;
(ii) The rule only confers a benefit or removes a restriction on the public or some segment thereof;
(iii) The rule only delays the effective date of another rule that is not yet effective; or
(iv) The earlier effective date is necessary because of imminent peril to the public health, safety or welfare.
(c) The finding and a brief statement of the reasons therefor required by paragraph (b) of this subsection must be made a part of the rule. In any action contesting the effective date of a rule made effective under paragraph (b) of this subsection, the burden is on the agency to justify its finding.
(d) A temporary rule may become effective immediately upon its filing or on any subsequent date earlier than that established by subsection (1) of this section.
(e) Each agency shall make a reasonable effort to make known to persons who may be affected by it a rule made effective before any date established by subsection (1) of this section.
(3) This section does not relieve an agency from compliance with any provision of law requiring that some or all of its rules be approved by other designated officials or bodies before they become effective.
SECTION 74. Section 25-43-3.114, Mississippi Code of 1972, is brought forward as follows:
25-43-3.114. Review by agency.
At least every five (5) years, each agency shall review all of its rules to determine whether any rule should be repealed, amended or a new rule adopted.
SECTION 75. Section 25-61-1, Mississippi Code of 1972, is brought forward as follows:
25-61-1. This chapter shall be known and may be cited as the "Mississippi Public Records Act of 1983." It is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act [Laws, 1996, Chapter 453]. Furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic record keeping, each agency must ensure reasonable access to records electronically maintained, subject to the rules of records retention.
SECTION 76. Section 25-61-2, Mississippi Code of 1972, is brought forward as follows:
25-61-2. It is the policy of this state that public records shall be available for inspection by any person unless otherwise provided by this chapter; furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each public body increases its use of, and dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained, subject to records retention.
SECTION 77. Section 25-61-3, Mississippi Code of 1972, is brought forward as follows:
25-61-3. The following words shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Public body" shall mean any department, bureau, division, council, commission, committee, subcommittee, board, agency and any other entity of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the Constitution or by law, executive order, ordinance or resolution. The term "public body" includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board. Within the meaning of this chapter, the term "entity" shall not be construed to include individuals employed by a public body or any appointed or elected public official.
(b) "Public records" shall mean all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, 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, or required to be maintained by any public body.
(c) "Data processing software" means the programs and routines used to employ and control the capabilities of data processing hardware, including, but not limited to, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications and computer networking programs.
(d) "Proprietary software" means data processing software that is obtained under a licensing agreement and is protected by copyright or trade secret laws.
(e) "Incident report" means a narrative description, if such narrative description exists and if such narrative description does not contain investigative information, of an alleged offense, and at a minimum shall include the name and identification of each person charged with and arrested for the alleged offense, the time, date and location of the alleged offense, and the property involved, to the extent this information is known.
(f) "Investigative report" means records of a law enforcement agency containing information beyond the scope of the matters contained in an incident report, and generally will include, but not be limited to, the following matters if beyond the scope of the matters contained in an incident report:
(i) Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation which may include crime scene reports and demonstrative evidence;
(ii) Records that would reveal the identity of informants and/or witnesses;
(iii) Records that would prematurely release information that would impede the public body's enforcement, investigative or detection efforts;
(iv) Records that would disclose investigatory techniques and/or results of investigative techniques;
(v) Records that would deprive a person of a right to a fair trial or an impartial adjudication;
(vi) Records that would endanger the life or safety of a public official or law enforcement personnel, or confidential informants or witnesses;
(vii) Records pertaining to quality control or PEER review activities; or
(viii) Records that would impede or jeopardize a prosecutor's ability to prosecute the alleged offense.
(g) "Law enforcement agency" means a public body that performs as one (1) of its principal functions activities pertaining to the enforcement of criminal laws, the apprehension and investigation of criminal offenders, or the investigation of criminal activities.
SECTION 78. Section 25-61-5, Mississippi Code of 1972, is brought forward as follows:
25-61-5. (1) (a) Except as otherwise provided by Sections 25-61-9 and 25-61-11, all public records are hereby declared to be public property, and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning the cost, time, place and method of access, and public notice of the procedures shall be given by the public body, or, if a public body has not adopted written procedures, the right to inspect, copy or mechanically reproduce or obtain a reproduction of a public record of the public body shall be provided within one (1) working day after a written request for a public record is made. No 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.
(b) If a public body is unable to produce a public record by the seventh working day after the request is made, the public body must provide 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. Unless there is mutual agreement of the parties, in no event shall the date for the public body's production of the requested records be any later than fourteen (14) working days from the receipt by the public body of the original request.
(2) If any public record contains material which is not exempted under this chapter, the public agency shall redact the exempted and make the nonexempted material available for examination. Such public agency shall be entitled to charge a reasonable fee for the redaction of any exempted material, not to exceed the agency's actual cost.
(3) Denial by a public body of a request for access to or copies of public records under this chapter shall be in writing and shall contain a statement of the specific exemption relied upon by the public body for the denial. Each public body shall maintain a file of all denials of requests for public records. Public bodies shall be required to preserve such denials on file for not less than three (3) years from the date such denials are made. This file shall be made available for inspection or copying, or both, during regular office hours to any person upon written request.
SECTION 79. Section 25-61-7, Mississippi Code of 1972, is brought forward as follows:
25-61-7. (1) Except as provided in subsection (2) of this section, each public body may establish and collect fees reasonably calculated to reimburse it for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. Any staff time or contractual services included in actual cost shall be at the pay scale of the lowest level employee or contractor competent to respond to the request. Such fees shall be collected by the public body in advance of complying with the request.
(2) A public body may establish a standard fee scale to reimburse it for the costs of creating, acquiring and maintaining a geographic information system or multipurpose cadastre as authorized and defined under Section 25-61-1 et seq., or any other electronically accessible data. Such fees must be reasonably related to the costs of creating, acquiring and maintaining the geographic information system, multipurpose cadastre or other electronically accessible data, for the data or information contained therein or taken therefrom and for any records, papers, accounts, maps, photographs, films, cards, tapes, recordings or other materials, data or information relating thereto, whether in printed, digital or other format. In determining the fees or charges under this subsection, the public body may consider the type of information requested, the purpose or purposes for which the information has been requested and the commercial value of the information.
SECTION 80. Section 25-61-9, Mississippi Code of 1972, is brought forward as follows:
25-61-9. (1) 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 81. Section 25-61-10, Mississippi Code of 1972, is brought forward as follows:
25-61-10. (1) Any public body that uses sensitive software, as defined in Section 25-61-9, or proprietary software must not thereby diminish the right of the public to inspect and copy a public record. A public body that uses sensitive software, as defined in Section 25-61-9, or proprietary software to store, manipulate, or retrieve a public record will not be deemed to have diminished the right of the public if it either: (a) if legally obtainable, makes a copy of the software available to the public for application to the public records stored, manipulated, or retrieved by the software; or (b) ensures that the software has the capacity to create an electronic copy of each public record stored, manipulated, or retrieved by the software in some common format such as, but not limited to, the American Standard Code for Information Interchange.
(2) A public body shall provide a copy of the record in the format requested if the public body maintains the record in that format, and the public body may charge a fee which must be in accordance with Section 25-61-7.
(3) Before a public body acquires or makes a major modification to any information technology system, equipment, or software used to store, retrieve, or manipulate a public record, the public body shall adequately plan for the provision of public access and redaction of exempt or confidential information by the proposed system, equipment or software.
(4) A public body may not enter into a contract for the creation or maintenance of a public records data base if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are online or stored in an information technology system used by the public body.
SECTION 82. Section 25-61-11, Mississippi Code of 1972, is brought forward as follows:
25-61-11. The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.
SECTION 83. Section 25-61-11.1, Mississippi Code of 1972, is brought forward as follows:
25-61-11.1. The name, home address, any telephone number or other private information of any person who possesses a weapon permit issued under Section 45-9-101 or Section 97-37-7 shall be exempt from the Mississippi Public Records Act of 1983.
SECTION 84. Section 25-61-12, Mississippi Code of 1972, is brought forward as follows:
25-61-12. (1) The home address, any telephone number of a privately paid account or other private information of any law enforcement officer, criminal investigator, judge or district attorney or the spouse or child of such law enforcement officer, criminal investigator, judge or district attorney shall be exempt from the Mississippi Public Records Act of 1983. This exemption does not apply to any court transcript or recording if given under oath and not otherwise excluded by law.
(2) (a) When in the possession of a law enforcement agency, investigative reports shall be exempt from the provisions of this chapter; however, a law enforcement agency, in its discretion, may choose to make public all or any part of any investigative report.
(b) Nothing in this chapter shall be construed to prevent any and all public bodies from having among themselves a free flow of information for the purpose of achieving a coordinated and effective detection and investigation of unlawful activity. Where the confidentiality of records covered by this section is being determined in a private hearing before a judge under Section 25-61-13, the public body may redact or separate from such records the identity of confidential informants or the identity of the person or persons under investigation or other information other than the nature of the incident, time, date and location.
(c) Nothing in this chapter shall be construed to exempt from public disclosure a law enforcement incident report. An incident report shall be a public record. A law enforcement agency may release information in addition to the information contained in the incident report.
(d) Nothing in this chapter shall be construed to require the disclosure of information that would reveal the identity of the victim.
(3) Personal information of victims, including victim impact statements and letters of support on behalf of victims that are contained in records on file with the Mississippi Department of Corrections and State Parole Board shall be exempt from the provisions of this chapter.
SECTION 85. Section 25-61-13, Mississippi Code of 1972, is brought forward as follows:
25-61-13. The Mississippi Ethics Commission shall have the authority to enforce the provisions of this chapter upon a complaint filed by any person denied the right granted under Section 25-61-5 to inspect or copy public records. Upon receiving a complaint, the commission shall forward a copy of the complaint to the head of the public body involved. The public body shall have fourteen (14) days from receipt of the complaint to file a response with the commission. After receiving the response to the complaint or, if no response is received after fourteen (14) days, the commission, in its discretion, may dismiss the complaint or proceed by setting a hearing in accordance with rules and regulations promulgated by the Ethics Commission. The Ethics Commission may order the public body and any individual employees or officials of the public body to produce records or take other reasonable measures necessary, if any, to comply with this chapter. The Ethics Commission may also impose penalties as authorized in this chapter. The Ethics Commission may order a public body to produce records for private review by the commission, its staff or designee. The Ethics Commission shall complete its private review of the records within thirty (30) days after receipt of the records from the public body. Records produced to the commission for private review shall remain exempt from disclosure under this chapter while in the custody of the commission.
Nothing in this chapter shall be construed to prohibit the Ethics Commission from mediating or otherwise resolving disputes arising under this chapter, from issuing an order based on a complaint and response where no facts are in dispute, or from entering orders agreed to by the parties. In carrying out its responsibilities under this section, the Ethics Commission shall have all the powers and authority granted to it in Title 25, Chapter 4, Mississippi Code of 1972, including the authority to promulgate rules and regulations in furtherance of this chapter.
Any party may petition the chancery court of the county in which the public body is located to enforce or appeal any order of the Ethics Commission issued pursuant to this chapter. In any such appeal the chancery court shall conduct a de novo review. Nothing in this chapter shall be construed to prohibit any party from filing a complaint in any chancery court having jurisdiction, nor shall a party be obligated to exhaust administrative remedies before filing a complaint. However, any party filing such a complaint in chancery court shall serve written notice upon the Ethics Commission at the time of filing the complaint. The written notice is for information only and does not make the Ethics Commission a party to the case.
SECTION 86. Section 25-61-15, Mississippi Code of 1972, is brought forward as follows:
25-61-15. Any 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.
SECTION 87. Section 25-61-17, Mississippi Code of 1972, is brought forward as follows:
25-61-17. Nothing in this chapter shall be construed as denying the Legislature the right to determine the rules of its own proceedings and to regulate public access to its records. However, notwithstanding the provisions of this section, the Legislature shall be subject to the provisions of Sections 27-104-151 through 27-104-159.
SECTION 88. Section 25-61-19, Mississippi Code of 1972, is brought forward as follows:
25-61-19. Within sixty (60) days after the end of each regular session of the Legislature, each agency or department of the State of Mississippi shall include on the Internet website of the agency or department a separate section that provides a legislative update on any legislation enacted at the legislative session that revises the powers and duties of the agency or department. The agency or department shall include a link to the legislative update section on the home page of the website. The legislative update section shall contain a summary of the revisions made to the powers and duties of the agency or department by the legislation, and a contact section or link so that members of the public may comment on or ask questions about the revisions or the effect of the revisions in the legislation. The legislative update section shall remain on the website of the agency or department until January 1 of the following year.
SECTION 89. Section 25-41-1, Mississippi Code of 1972, is brought forward as follows:
25-41-1. It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.
SECTION 90. Section 25-41-3, Mississippi Code of 1972, is brought forward as follows:
25-41-3. For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:
(a) "Public body" means any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether such entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature. The term "public body" includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board. There shall be exempted from the provisions of this chapter:
(i) The judiciary, including all jury deliberations;
(ii) Public and private hospital staffs, public and private hospital boards and committees thereof;
(iii) Law enforcement officials;
(iv) The military;
(v) The State Probation and Parole Board;
(vi) The Workers' Compensation Commission;
(vii) Legislative subcommittees and legislative conference committees;
(viii) The arbitration council established in Section 69-3-19;
(ix) License revocation, suspension and disciplinary proceedings held by the Mississippi State Board of Dental Examiners; and
(x) Hearings and meetings of the Board of Tax Appeals and of the hearing officers and the board of review of the Department of Revenue as provided in Section 27-77-15.
(b) "Meeting" means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power; "meeting" also means any such assemblage through the use of video or teleconference devices.
SECTION 91. Section 25-41-5, Mississippi Code of 1972, is brought forward as follows:
25-41-5. (1) All official meetings of any public body, unless otherwise provided in this chapter or in the Constitutions of the United States of America or the State of Mississippi, are declared to be public meetings and shall be open to the public at all times unless declared an executive session as provided in Section 25-41-7.
(2) (a) A public body may conduct any meeting through teleconference or video means. A quorum of a public body as prescribed by law may be at different locations for the purpose of conducting a meeting through teleconference or video means provided participation is available to the general public at one or more public locations specified in the public meeting notice.
(b) A municipal public body may establish a quorum with the members of such public body who are on active duty in any branch of the United States Armed Forces by using any teleconference or video device that allows such members of the municipal public body to clearly communicate with each other and clearly view each other for the purpose of conducting a meeting, voting on issues of the municipal public body and transacting business of the municipal public body provided that such participation is available to the general public at one or more public locations specified in the public meeting notice.
(3) (a) Notice of any meetings held pursuant to subsection (2) of this section shall be provided at least five (5) days in advance of the date scheduled for the meeting. The notice shall include the date, time, place and purpose for the meeting and shall identify all locations for the meeting available to the general public. All persons attending the meeting at any of the public meeting locations shall be afforded the same opportunity to address the public body as persons attending the primary or central location. Any interruption in the teleconference or video broadcast of the meeting shall result in the suspension of action at the meeting until repairs are made and public access restored.
(b) Five-day notice shall not be required for teleconference or video meetings continued to address an emergency as provided in subsection (5) of this section or to conclude the agenda of a teleconference or video meeting of the public body for which the proper notice has been given, when the date, time, place and purpose of the continued meeting are set during the meeting prior to adjournment.
(4) An agenda and materials that will be distributed to members of the public body and that have been made available to the staff of the public body in sufficient time for duplication and forwarding to all locations where public access will be provided shall be made available to the public at the time of the meeting. Minutes of all meetings held by teleconference or video means shall be recorded as required by Section 25-41-11. Votes taken during any meeting conducted through teleconference or video means shall be recorded by name in roll-call fashion and included in the minutes. In addition, the public body shall make an audio recording of the meeting, if a teleconference medium is used, or an audio/visual recording, if the meeting is held by video means. The recording shall be preserved by the public body for a period of three (3) years following the date of the meeting and shall be available to the public.
(5) A public body may meet by teleconference or video means as often as needed if an emergency exists and the public body is unable to meet in regular session. Public bodies conducting emergency meetings through teleconference or video means shall comply with the provisions of subsection (4) of this section requiring minutes, recordation and preservation of the audio or audio/visual recording of the meeting. The nature of the emergency shall be stated in the minutes.
SECTION 92. Section 25-41-7, Mississippi Code of 1972, is brought forward as follows:
25-41-7. (1) Any public body may enter into executive session for the transaction of public business; provided, however, all meetings of any such public body shall commence as an open meeting, and an affirmative vote of three-fifths (3/5) of all members present shall be required to declare an executive session.
(2) The procedure to be followed by any public body in declaring an executive session shall be as follows: Any member shall have the right to request by motion a closed determination upon the issue of whether or not to declare an executive session. Such motion, by majority vote, shall require the meeting to be closed for a preliminary determination of the necessity for executive session. No other business shall be transacted until the discussion of the nature of the matter requiring executive session has been completed and a vote, as required in subsection (1) hereof, has been taken on the issue.
(3) An executive session shall be limited to matters allowed to be exempted from open meetings by subsection (4) of this section. The reason for holding such an executive session shall be stated in an open meeting, and the reason so stated shall be recorded in the minutes of the meeting. Nothing in this section shall be construed to require that any meeting be closed to the public, nor shall any executive session be used to circumvent or to defeat the purposes of this chapter.
(4) A public body may hold an executive session pursuant to this section for one or more of the following reasons:
(a) Transaction of business and discussion of personnel matters relating to the job performance, character, professional competence, or physical or mental health of a person holding a specific position.
(b) Strategy sessions or negotiations with respect to prospective litigation, litigation or issuance of an appealable order when an open meeting would have a detrimental effect on the litigating position of the public body.
(c) Transaction of business and discussion regarding the report, development or course of action regarding security personnel, plans or devices.
(d) Investigative proceedings by any public body regarding allegations of misconduct or violation of law.
(e) Any body of the Legislature which is meeting on matters within the jurisdiction of such body.
(f) Cases of extraordinary emergency which would pose immediate or irrevocable harm or damage to persons and/or property within the jurisdiction of such public body.
(g) Transaction of business and discussion regarding the prospective purchase, sale or leasing of lands.
(h) Discussions between a school board and individual students who attend a school within the jurisdiction of such school board or the parents or teachers of such students regarding problems of such students or their parents or teachers.
(i) Transaction of business and discussion concerning the preparation of tests for admission to practice in recognized professions.
(j) Transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business or an industry.
(k) Transaction of business and discussions regarding employment or job performance of a person in a specific position or termination of an employee holding a specific position. The exemption provided by this paragraph includes the right to enter into executive session concerning a line item in a budget which might affect the termination of an employee or employees. All other budget items shall be considered in open meetings and final budgetary adoption shall not be taken in executive session.
(l) Discussions regarding material or data exempt from the Mississippi Public Records Act of 1983 pursuant to Section 25-11-121.
(5) The total vote on the question of entering into an executive session shall be recorded and spread upon the minutes of such public body.
(6) Any such vote whereby an executive session is declared shall be applicable only to that particular meeting on that particular day.
SECTION 93. Section 25-41-9, Mississippi Code of 1972, is brought forward as follows:
25-41-9. Any public body may make and enforce reasonable rules and regulations for the conduct of persons attending its meetings.
SECTION 94. Section 25-41-11, Mississippi Code of 1972, is brought forward as follows:
25-41-11. (1) Minutes shall be kept of all meetings of a public body, whether in open or executive session, showing the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body requests be included or reflected in the minutes. The minutes shall be recorded within a reasonable time not to exceed thirty (30) days after recess or adjournment and shall be open to public inspection during regular business hours.
(2) Minutes of a meeting conducted by teleconference or video means shall comply with the requirements of Section 25-41-5.
(3) Minutes of legislative committee meetings shall consist of a written record of attendance and final actions taken at such meetings.
SECTION 95. Section 25-41-13, Mississippi Code of 1972, is brought forward as follows:
25-41-13. (1) Any public body which holds its meetings at such times and places and by such procedures as are specifically prescribed by statute shall continue to do so and no additional notice of such meetings shall be required except that a notice of the place, date, hour and subject matter of any recess meeting, adjourned meeting, interim meeting or any called special meeting shall be posted within one (1) hour after such meeting is called in a prominent place available to examination and inspection by the general public in the building in which the public body normally meets. A copy of the notice shall be made a part of the minutes or other permanent official records of the public body.
(2) Any public body, other than a legislative committee, which does not have statutory provisions prescribing the times and places and the procedures by which its meetings are to be held shall, at its first regular or special meeting after the effective date of this chapter spread upon its minutes the times and places and the procedures by which all of its meetings are to be held.
(3) Notice of any regular meeting held by a state agency, other than a legislative committee, shall be submitted to the Department of Finance and Administration at least twenty-four (24) hours before the meeting in order to be posted on the department's searchable website created by the Mississippi Accountability and Transparency Act, Section 27-104-152 et seq. For purposes of this subsection, the term "state agency" means an agency, department, institution, board, commission, council, office, bureau, division, committee or subcommittee of the state. However, the term "state agency" does not include institutions of higher learning, community and junior colleges, counties or municipalities.
(4) During a regular or special session of the Mississippi Legislature, notice of meetings of all committees, other than conference committees, shall be given by announcement on the loudspeaker during sessions of the House of Representatives or Senate or by posting on a bulletin board provided for that purpose by each body.
(5) When not in session, the meeting times and places of all committees shall be kept by the Clerk of the House of Representatives as to House committees and by the Secretary of the Senate as to Senate committees, and shall be available at all times during regular working hours to the public and news media.
SECTION 96. Section 25-41-15, Mississippi Code of 1972, is brought forward as follows:
25-41-15. The Mississippi Ethics Commission shall have the authority to enforce the provisions of this chapter upon a complaint filed by any person. Upon receiving a complaint, the commission shall forward a copy of the complaint to the head of the public body involved. The public body shall have fourteen (14) days from receipt of the complaint to file a response with the commission. After receiving the response to the complaint or, if no response is received after fourteen (14) days, the commission, in its discretion, may dismiss the complaint or proceed by setting a hearing in accordance with rules and regulations promulgated by the Ethics Commission.
After a hearing, the Ethics Commission may order the public body to take whatever reasonable measures necessary, if any, to comply with this chapter. If the Ethics Commission finds that a member or members of a public body has willfully and knowingly violated the provisions of this chapter, the Ethics Commission may impose a civil penalty upon the individual members of the public body found to be in violation of the provisions of this chapter in a sum not to exceed Five Hundred Dollars ($500.00) for a first offense and One Thousand Dollars ($1,000.00) for a second or subsequent offense, plus all reasonable expenses incurred by the person or persons in bringing the complaint to enforce this chapter.
Nothing in this chapter shall be construed to prohibit the Ethics Commission from mediating or otherwise resolving disputes arising under this chapter or from entering orders agreed to by the parties. In carrying out its responsibilities under this section, the Ethics Commission shall have all the powers and authority granted to it in Title 25, Chapter 4, Mississippi Code of 1972.
Any party may petition the chancery court of the county in which the public body is located to enforce or appeal any order of the Ethics Commission issued pursuant to this chapter. In any such appeal the chancery court shall conduct a de novo review.
SECTION 97. Section 25-41-17, Mississippi Code of 1972, is brought forward as follows:
25-41-17. The provisions of this chapter shall not apply to chance meetings or social gatherings of members of a public body.
SECTION 98. This act shall take effect and be in force from and after July 1, 2015.