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 Jones County Board of Education attorney asked a clean public records question: someone has asked the school district for a list of statistical information that does not currently exist. Does the district have to compile and assemble the list to fulfill the request?
The AG said no. Mississippi's Public Records Act of 1983 requires public bodies to make their records available for inspection. It does not require them to create records that do not exist. The 2006 Robertson AG opinion is the source of the rule: "The Act does not require a public body to create a record in response to a public records request." The Mississippi Model Public Records Rules (Comment 4.4(4)(a)) reinforce: "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 opinion is short, but the rule has practical consequences. Public records requests can ask for:
- Existing records: documents, emails, reports, recordings, that already exist. The agency has to provide these (or charge appropriate fees, redact exempt portions, etc.).
- Records that need to be created: a custom list pulled together from multiple sources, statistical analyses computed for the request, summaries written for the requester. The agency is not required to produce these.
So if a journalist asks for "all teacher salaries by school," that is generally an existing record (or can be derived from existing records) and the district has to provide it. If a journalist asks for "the school district's view on the impact of the budget on educational outcomes," that requires creating a new analysis, and the district does not have to produce it under the Public Records Act.
What this means for you
If you are a Mississippi public records officer
Train yourself to distinguish "give me the records" from "create something for me." The first is a public records request and you have to fulfill it (subject to exemptions, fees, and procedures). The second is not, and you can decline.
If a request straddles both categories, the cleaner approach is to (a) provide the existing records that respond, (b) explain that the requested compilation or analysis is not an existing record, and (c) offer to make available the underlying source records the requester could use to do their own compilation.
If you are a public records requester
Frame your request as a request for existing records. "All emails between Superintendent X and Vendor Y from January to June 2024" is a clean request for existing records. "A summary of how the superintendent communicates with vendors" is asking for a new analysis, and the agency does not have to produce it.
If you want statistical data, ask for the underlying records and do your own analysis, or ask whether the agency already has the analysis (sometimes agencies have produced internal reports that can be released).
If you are a journalist or researcher in Mississippi
The AG's rule sets the practical boundary for what you can demand under the Public Records Act. You can demand existing documents. You cannot demand custom data work. Your relationships with public bodies, your sources, and your own analytical work fill the gap.
If you are a government attorney
The 2006 Robertson opinion and the 2024 Caves opinion give you a clean basis to decline custom-compilation requests. Document the basis for the decline in writing, citing the AG opinion and the Model Rules. Offer alternatives where appropriate (existing records, FAQ-style responses, prior reports already produced).
If you are a public official getting a complex request
Distinguish the urgent legal duty (provide existing records) from the request to do new work. The first is the law; the second is a courtesy you can choose to extend or not. Sometimes it makes sense to do the courtesy work because it is good public service or saves litigation. But it is not required, and budget-stressed agencies are within their rights to say "here are the source records."
Common questions
Q: What is the Mississippi Public Records Act of 1983?
A: Mississippi Code §§ 25-61-1 et seq. It is the general public records law that gives any person access to records of public bodies, with statutory exemptions for personnel records, attorney-client communications, certain investigative materials, and other categories. Section 25-61-2 sets the basic rule: public records are available for inspection.
Q: What counts as a "record"?
A: Generally, any document, image, recording, or data set that the public body has in its possession or control. Emails are records. Spreadsheets are records. Database extracts of existing data are records. A custom report compiled in response to a request is not a pre-existing record.
Q: What if the agency runs a query against its database to produce data for the requester? Is that creating a new record?
A: This is the gray area. A simple query against an existing database that pulls existing fields (give me all the salary records for 2023) is generally treated as accessing existing records, not creating a new one. A custom analytical query that synthesizes new findings (compute the year-over-year salary growth by category) gets closer to creating a new record. The AG opinion does not draw the line precisely; it depends on how new the output is.
Q: Can I ask for "the records the agency would use to answer my question"?
A: That is a reasonable request structure. You are not asking the agency to do the analysis; you are asking for the source materials. You may face challenges on what records exactly are responsive, but the agency cannot just say no because the request is broad.
Q: What about FOIL/FOIA requests in other states? Do they have the same rule?
A: Most states have similar rules. The federal FOIA also generally does not require agencies to create records, only to produce existing records. Specific state laws vary on the edges, but the no-creation-required principle is widespread.
Q: Does the agency have to redact exempt portions of an existing record?
A: Yes, that is different from creating a new record. The agency has to provide the records it holds, redacting only the portions that are exempt under specific statutes. Redaction is part of providing existing records, not the creation of a new record.
Q: What if the agency has the data but in an unusual format?
A: The agency generally has to provide the data in a reasonable format. The requester does not get to dictate the format, but the agency has to make a good-faith effort to provide useful access. Custom format conversions might or might not be required depending on the burden.
Background and statutory framework
The Mississippi Public Records Act of 1983, Section 25-61-2:
[P]ublic records must "be available for inspection by any person unless otherwise provided by" the Act.
The 2006 Robertson AG opinion summarized the no-creation-required rule. 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 2024 Caves opinion applies the rule specifically to a request for a "list of statistical information" that does not exist. The school district is not required to create the list.
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