Does a Mississippi school district have to compile a list of statistical information that doesn't already exist when someone requests it under public records law?

Plain-English summary

The attorney for the Jones County Board of Education asked one narrow question: when a public records request seeks a list of statistical information that does not currently exist, does the school district have to compile and assemble that list?

The AG answered no. Under the Mississippi Public Records Act of 1983, public records "must be available for inspection by any person unless otherwise provided by" the Act, but the Act "does not require a public body to create a record in response to a public records request." The public body only has to make available the records it already has in its possession or control. So a school district is not required to build a statistical list that does not already exist.

The opinion rests on two prior sources it cites: the 2006 Robertson AG opinion ("The Act does not require a public body to create a record in response to a public records request") and the Mississippi Model Public Records Rules, Comment 4.4(4)(a) ("A public body is only required to provide access to public records it has in its possession or over which it has control. A public body is not required to create a public record in response to a request.").

The requester's opinion request had included a second question, but the AG noted that counsel later told the office it was moot, so the opinion does not address it.

What this means for you

This opinion resolves a single point: the Public Records Act compels access to existing records, not the creation of new ones.

School districts and other Mississippi public bodies: the opinion holds that you are not required by the Act to compile or assemble a statistical list, or any other record, that does not already exist. Your duty under the Act is to make available the records you already hold.

Public records requesters: the opinion confirms that a request for a record that does not exist yet (a compilation the agency would have to build) falls outside what the Act compels. A request for records the agency already possesses is on different footing.

Government attorneys: the Caves opinion gives you the AG's restatement of the no-creation rule, tied directly to § 25-61-2, the 2006 Robertson opinion, and Model Rules Comment 4.4(4)(a), in the specific context of a requested statistical compilation.

Common questions

Q: Did the school district have to compile the statistical list?
A: No. The AG concluded that the district "is not required by the Act to compile and assemble a list of statistical information if the requested document does not already exist."

Q: What does the Mississippi Public Records Act actually require?
A: Per the opinion, public records "must be available for inspection by any person unless otherwise provided by" the Act (Miss. Code Ann. § 25-61-2). The public body "merely must make its records available for inspection."

Q: Where does the no-creation rule come from?
A: The opinion cites a 2006 AG opinion (Robertson) for the rule that the Act does not require creating a record, and the Mississippi Model Public Records Rules, Comment 4.4(4)(a), which says a public body is only required to provide access to records it possesses or controls.

Q: Did the opinion answer the second question in the request?
A: No. The opinion notes the requester told the office in a later conversation that the additional question was moot and did not need a response.

Background and statutory framework

The opinion turns on Section 25-61-2 of the Mississippi Public Records Act of 1983, under which public records "must be available for inspection by any person unless otherwise provided by" the Act. The AG read that duty as one of access to existing records, citing the 2006 Robertson opinion and the Mississippi Model Public Records Rules, Comment 4.4(4)(a), both for the proposition that a public body need not create a record to answer a request. Applied to the Jones County request for a "list of statistical information" that did not exist, the AG concluded the district was not required to build it.

Citations

• Miss. Code Ann. § 25-61-2
• MISSISSIPPI MODEL PUBLIC RECORDS RULES, COMMENT 4.4(4)(a)
• MS AG Op., Robertson (Oct. 13, 2006)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/08/R.Caves-July-30-2024-Public-Records-Request.pdf

Original opinion text

July 30, 2024
Risher G. Caves, Esq.
Attorney, Jones County Board of Education
Post Office Drawer 167
Laurel, Mississippi 39441-0167
Re: Public Records Request

Dear Mr. Caves:
The Office of the Attorney General has received your request for an official opinion.

Question Presented
If a public records request seeks a list of statistical information that does not currently exist, is a school district required to compile and assemble said list of information?

Brief Response
No. A school district is not required to create a record that does not currently exist in response to a public records request.

Applicable Law and Discussion
Pursuant to the Mississippi Public Records Act of 1983 (the "Act"), public records must "be available for inspection by any person unless otherwise provided by" the Act. Miss. Code Ann. § 25-61-2. The Act does not require a public body to create a record in response to a public records request. MS AG Op., Robertson at *1 (Oct. 13, 2006). Rather, the public body merely must make its records available for inspection. See MISSISSIPPI MODEL PUBLIC RECORDS RULES, COMMENT 4.4(4)(a) (stating that "[a] public body is only required to provide access to public records it has in its possession or over which it has control. A public body is not required to create a public record in response to a request."). Accordingly, it is the opinion of this office that a school district is not required by the Act to compile and assemble a list of statistical information if the requested document does not already exist.

Your opinion request included an additional question. However, you informed us in a subsequent conversation that the additional question was moot and did not require a response.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General