City Attorney Demands Recording of Private Conversation that Criticized Him

City attorney demands full recording of private conversations that criticized him, while ironically labeling his own directive as a privileged private communication. Is his demand based on law or something else?

OCEAN SPRINGS, MS (GC Wire) – After a secretly recorded conversation revealed an Ocean Springs alderman’s apparent agreement with criticism of City Attorney David Harris, Harris issued a confidential memorandum directing aldermen to turn over the recordings and/or transcript.

The November 5 memorandum came amid revelations published by GC Wire exposing contradictions between Alderman-at-Large Matthew Hinton’s private statements and his public positions on several controversial city matters, including Harris’s continued employment.

During the private conversation, another alderman suggested that Mayor Bobby Cox could save his administration by replacing Harris.

“Wish he could see it,” Hinton responded.

Harris’s memorandum came days after GC Wire published excerpts from a recording that was critical of him.

Now he wants the full copy.

A Confidential Demand for Private Conversations

Harris’s memorandum leaves little doubt that he was responding to recordings already circulating publicly.

“Based on information, it appears there exist recordings and/or transcripts of conversations… which have been made available to members of the public,” Harris wrote.

Although Harris acknowledged that the recordings and transcripts only “may constitute public records,” he nevertheless sought to have them turned over. If taken seriously, the directive could have serious consequences.

Consider how actual public records are ordinarily handled.

An email between the mayor and an alderman conducting official city business is unquestionably a public record. It must be preserved and made available when properly requested, subject to applicable exemptions.

But that doesn’t mean Mississippi law automatically requires every official to forward every such email to the City Clerk simply because someone might request it someday.

Yet Harris is seeking precisely that kind of proactive surrender for a recording of a private conversation that criticized him personally, without first establishing that the recording was created or retained for official city business.

If the purpose is ordinary public-records compliance, what makes this particular recording so urgent?

Also, consider what would happen if Mayor Cox decided to seek reelection.

Suppose Cox privately met with an alderman and several campaign volunteers to discuss city policies, political opponents, and campaign strategy.

Someone records the conversation for Cox’s later review.

Does that recording suddenly become city property if it was shared, simply because two elected officials were discussing city matters?

Under the interpretation suggested by Harris’s memorandum, where would the line be drawn?

Mississippi law already recognizes an important distinction between political or personal conversations and official government business.

Under Mississippi’s Open Meetings Act, § 25-41-3(b) defines an official meeting in terms of whether public business may be transacted. Another provision, § 25-41-17, expressly excludes chance meetings and social gatherings where public business is neither deliberated nor acted upon.

That distinction is relevant here: the presence of elected officials does not, by itself, transform a private political conversation into official government business, even if the city is discussed.

Mississippi’s Public Records Act similarly requires a connection to the conduct, duties, or functions of a public body before materials qualify as public records under § 25-61-3(b) — a section Harris’s own memorandum mis-cited as “25-6-3(b).”

Harris’s directive was emailed to the mayor, city clerk, and blind copied to all aldermen.

Public Records for Thee, but Not for Me?

City Attorney David Harris wants a recording of a private conversation that contains criticism of him. He says it’s because of public records laws.

But when Harris issued his own memorandum seeking the recording, he placed a confidentiality designation at the very top.

“PRIVILEGED ATTORNEY-CLIENT COMMUNICATION.”

The designation may be legally appropriate for communications containing privileged legal advice. But the irony here is difficult to overlook.

Harris is seeking recordings of private conversations in which he was personally criticized, while asserting confidentiality over his own directive about obtaining them.

There is another contradiction.

After GC Wire published the recordings criticizing Hinton and Harris, Hinton blocked this journalist from accessing his official Alderman-at-Large Facebook page.

A formal notice was sent to Hinton and Harris demanding that access be restored. The notice cited federal case law, including recent U.S. Supreme Court precedent, concerning public officials who block critics from social media accounts used to conduct government business.

Harris has not responded to that demand, and the block remains in place.

So while Harris is invoking public-records law to obtain private conversations critical of him, he has taken no apparent action to resolve a complaint that an elected official is denying a journalist access to a public communications channel used for official city business.

And his own directive telling aldermen to hand over the goods was marked confidential and not for public eyes.

Apparently, when it comes to transparency at Ocean Springs City Hall, public access is a priority when officials want information, but not necessarily when the public wants access to them.