Next to Houston Nutt, whose lawsuit helped topple Ole Miss football coach Hugh Freeze, the next-happiest person to see Freeze fall must be Kwame Kilpatrick, who’s now only the second-most-famous person to be dethroned by public records.
Just as Kilpatrick lost the Detroit mayor’s office, and ended up in prison, after an open-records lawsuit disclosed embarrassing text messages about personal indiscretions, so too was Freeze sidelined from the sidelines. The Rebels’ head coach was forced from his job Thursday after the University of Mississippi discovered a “pattern of personal misconduct” documented by records of his state-issued cellphone calls.
But is the public entitled to more disclosure than the university has offered? There’s a good chance the answer is “yes.”
Nutt, who preceded Freeze as head coach, obtained the billing records for Freeze’s cellphone as part of research for a defamation suit he’s pursuing. The university allowed Freeze to review the records and redact calls he deemed personal, which (though an obvious invitation for people to make self-serving redaction decisions that are almost impossible to challenge) is routine practice when individuals’ records are requested under state freedom-of-information laws.
What may not be routine practice is withholding portions of public records on the grounds that their contents are, quote, “personal.”
Interestingly, Mississippi law contemplates the reverse of Freeze’s situation, where the entire document qualifies as exempt but some of its content can be harmlessly produced:
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 or copying, or both, as provided for in this chapter.
The billing records for a university-owned cellphone are not “exempt from disclosure” — they are classic public records that any requester is entitled to inspect and copy.
Nothing in the law explicitly authorizes what the university did — selectively removing material categorized as exempt from otherwise-public records. But it’s widely understood that open-records laws are not “all-or-nothing,” and that the presence of a small amount of nonpublic material in a document does not entitle an agency to withhold the entire document. So even where the authority to make selective redactions doesn’t appear in the statute, the courts have created that mechanism to avoid the absurd result that one confidential sentence in a 25-page document could render the entire document inaccessible.
The Mississippi attorney general’s office has interpreted the Public Records Act to allow agencies to excise exempt information from otherwise-public records before producing them. In a 2009 opinion letter, Attorney General Jim Hood advised that home addresses and phone numbers can be withheld from police reports if they fit within a statutory exemption, such as the exemption for identities of confidential police informants.
So the question is whether the Public Records Act exempts “personal” information. If not, then Freeze’s redactions went beyond what the law allows, and the redacted entries should be produced.
There is no statutory exemption for “personal information” in Mississippi law. The statute contains some narrowly targeted exclusions that allow for withholding especially sensitive information, such as Social Security numbers, but nothing that categorically places “personal” information off-limits.
The university’s best (indeed, only) argument for categorizing personal calls as exempt from disclosure will be to argue that, by definition, a record of a non-business phone call does not meet the statutory definition of “public record” in the first place.
Mississippi law defines a public record as any document that is “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.”
By that broad definition, it is difficult to argue that records of personal phone calls on state devices are not public records. Although the phone call itself was not an official business call, that’s not what the law says. The law says any record that the state (1) keeps as part of its official functions or (2) is required to maintain is open to public inspection. The records reflecting a state employee’s cellphone use — for any purpose — very likely qualify as records that an agency retains, or is required to retain, for official use.
So there is a strong basis to argue for access to the redacted call entries, which might more fully enlighten the public about why Freeze is no longer drawing his $4.7 million salary.
In 2010, the U.S. Supreme Court considered, but did not squarely decide, whether a public employee has a constitutionally recognized expectation of privacy in text messages sent on a government-issued device. In that case, City of Ontario v. Quon, the Court found that a police department acted reasonably in examining messages sent by a police officer on a city-owned pager to see why he was exceeding the monthly usage cap and incurring overage fees.
The university would be on uncertain legal footing in insisting that Mississippi law allows for withholding documentation of personal usage of a state cellphone. We may yet see the full picture of what “personal misconduct” impelled the university to cut ties with its fifth-year coach.
Photo of Hugh Freeze by jeremymnabors, used under Creative Commons Attribution-Share Alike 3.0 Unported license.