Former Gov. Phil Bryant asks court to bar public from inspecting his text messages
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Oct. 12—JACKSON — Former Gov. Phil Bryant is asking a state judge to block the public from viewing his emails and text messages related to how federal welfare dollars were used to construct a volleyball stadium at the University of Southern Mississippi.
Bryant, through his attorneys, filed an objection last month in Hinds County Circuit Court to a subpoena from the Mississippi Community Education Center, a defendant in a civil suit seeking the documents. Bryant argued that the communications are privileged material.
"MCEC has transparently used the subpoena power in a bad faith effort to annoy, embarrass, and oppress Governor Bryant," the former governor's objection reads. "Accordingly, this court should award sanctions to Governor Bryant, including the attorneys' fees incurred in the preparation, filing, and argument associated with this response."
The documents could shed important light on what Bryant's role was in the welfare scandal.
The volleyball stadium isn't the target of the state's civil suit, which seeks to claw back millions in misspent welfare dollars. Instead, the state welfare agency is suing Nancy New, director of MCEC, and retired NFL quarterback Brett Favre over a $1.1 million payment New's nonprofit made to Favre under a promotional contract.
New has pleaded guilty to state charges of bribery and fraud and said in court documents that the former Republican governor directed her to issue payments to the college. Bryant has denied New's allegations.
Along with his filing, Bryant produced dozens of text messages to argue he was unaware that Favre was using welfare money for the volleyball project.
But he hasn't released all of the documents sought.
New's attorneys are hoping the additional documents will vindicate her claims. However, if the former governor's request is granted, the public could be left in the dark.
Circuit Judge E. Faye Peterson will decide the matter. If Peterson rules that Bryant must produce the documents, the former governor believes they should be filed under a protective order. That would disallow both the public and press the ability to examine them.
Bryant argues the communications should be kept private because he believes New is trying to "create a media circus" instead of engaging in good-faith evidence collection.
"The allegations levied against your client should be tried in a court of law, not in the media," Bryant's filing reads. "Evidence, and especially privileged materials, should not be utilized to unduly influence public opinion and to bias potential jurors."
Leonard Van Slyke, an attorney who has represented Mississippi media outlets for decades on public records and public access issues, told the Daily Journal that a judge should only enter a protective order in the "rarest of circumstances" and when no other alternative exists for giving someone a fair trial.
"I would say that, to the extent possible, transparency is always the appropriate way to go," Van Slyke said. "I gather that the former governor's counsel has revealed a good number of emails and text messages, and I personally would wonder why it wouldn't be in everyone's interest for the rest of them to be revealed."
The guidelines for judges to seal records from public inspection are outlined in the 1990 Mississippi Supreme Court case Gannett River States vs. Hand, in which Van Slyke was involved.
The opinion from the state's highest court states that whenever a judge agrees to limit public access to court documents or court proceedings, he or she should give a detailed reason for restricting access.
Peterson has not yet ruled on whether Bryant must comply with the subpoena or if the public's access to the documents should be restricted, but she has previously entered gag orders in related criminal cases to prevent involved parties from making public comments about the case.
The governor's attorneys also argue that most of Bryant's documents would be protected under the "executive communications" privilege and "deliberative process claim."
But neither of those exemptions exist in Mississippi law — only in federal law.
"The bottom line is the Mississippi Public Records Act has no such exemptions," Van Slyke said. "Those are exemptions under the federal Freedom of Information Act, which does not apply to state officials."
Bryant's attorneys justify their argument to keep the documents private by claiming that the U.S. Supreme Court in USA vs. Nixon established that leaders of the executive wing of government should have more public disclosure protections.
But in the very court case his attorneys cite, the Supreme Court unanimously ruled that executive protections are not absolute and that Nixon had to release audio tapes in his possession to a special prosecutor investigating Nixon during the Watergate scandal.
Jim Waide, a Tupelo-based attorney representing one of the defendants in the litigation, is also trying to force Bryant to comply with the subpoena. Waide filed a brief on Friday rebutting Bryant's legal argument, noting that the Supreme Court ultimately ruled the president had to release the tapes.
"If a sitting President of the United States cannot keep secret any evidence concerning crimes, then neither can an ex-governor of Mississippi," Waide wrote.
It's unclear when Peterson is expected to rule.
