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In Legal Terms - Legislative Preview
Issue 2003
Understanding Alabama's Open Records
Act
There has been much attention
to and discussion of Alabama's "Sunshine" or
Open Meetings Law in recent months - in part as a result
of the Supreme Court's ruling in the case brought against
Auburn University by the Montgomery Advertiser. However,
there is another important provision of state law related
to “open government" which now may be drawing
attention of its own - again in response to a recent ruling
from the Supreme Court on proper application of that law.
Like the Sunshine Law, the Open Records Act has as its
objective, disclosure to the public of information related
to how government operates on a day-to-day basis. And
like the Sunshine Law, the Open Records Act actually says
very little, leaving it to Court interpretation of the
proper application of the law's laudable goals.
Code of Alabama 1975,
§ 36-12-40 provides that, "Every citizen
has a right to inspect and take a copy of any public writing
of this state, except as otherwise expressly provided
by statute." "Public writing" is not specifically
defined in Alabama's Code but "public record"
is defined at Code of Alabama 1975, § 41-13-1,
as "all written, typed or printed books, papers,
letters, documents and maps made or received in pursuance
of law by public officers of the state, counties, municipalities
and other subdivisions of government in the transaction
of public business". Additionally, Code of
Alabama 1975, § 36-12-2, states that "All
public officers . . . shall correctly make and accurately
keep . . . all such books or sets of books, documents,
files, papers, letters and copies of letters as at all
times shall afford full and detailed information in reference
to the activities or business required to be done or carried
on by such officer . . . and from which the actual status
and condition of such activities and business can be ascertained
without extraneous information. . . ."
In addressing proper application
of the Open Records Act, the Supreme Court of Alabama
has consistently held that each of these sections should
be read together and that a "public writing"
subject to the provision of § 36-12-40 is "such
a record as is reasonably necessary to record the business
and activities required to be done or carried on by a
public officer so that the status and condition of such
business and activities can be known by our citizens."
Stone v. Consolidated Publishing Co., 404 So.2d 678
(Ala. 1981). In other words, all public records or
writings meeting this interpretation must be made available
to citizens, including the media, upon request.
As in the case of the "Sunshine
Law", the Supreme Court of Alabama has carved out
exceptions to disclosure. In Stone v. Consolidated
Publishing Co., supra, which for over twenty years
has been the leading case interpreting Alabama's open
records law, the Supreme Court stated that while it would
be helpful for the Legislature to provide limitations
to the statute's applicability, in the absence of legislative
action, the judiciary must apply the "rule of reason".
To this end, the Court held in Stone that, "Recorded
information received by a public officer in confidence,
sensitive personnel records, pending criminal investigations1,
and records the disclosure of which would be detrimental
to the best interests of the public are some of the areas
which may not be subject to public disclosure." The
Court further stated that in reviewing this issue, "courts
must balance the interest of the citizens in knowing what
their public officers are doing in the discharge of public
duties against the interest of the general public in having
the business of government carried on efficiently and
without undue interference."
There have been very few cases
addressing the disclosure of public documents, but both
appellate courts have consistently held the statute must
be liberally construed, and in favor of the public and
public disclosure. See, e.g., Chambers v. Birmingham
News Co., 552 So.2d 854 (Ala. 1989). There is a presumption
in favor of public disclosure of public writings and records,
and the party refusing disclosure shall have the burden
of proving that the writings or records sought are within
an exception warranting nondisclosure. Chambers v.
Birmingham News Co., supra.
In the Chambers case,
the Shelby County Commission refused to provide the Birmingham
News with resumes and employment applications for the
advertised position of coordinator of water and sewer
services. The newspaper filed suit, contending that the
denial of access to the application materials violated
Alabama's Open Records Act, and sought to permanently
enjoin the Commission from denying the News access to
the requested materials. The Commission argued that its
personnel policy provided that the information in the
application materials was confidential and accessible
only to the Commission or to the individual applicant.
They also contended that the application materials fell
within three Stone exceptions: 1) recorded information
received by a public officer in confidence; 2) sensitive
personnel records; and 3) records the disclosure of which
would be detrimental to the public's best interest. The
trial court granted a permanent injunction in favor of
the Birmingham News, noting in its decision that none
of the applicants had requested that their resume or application
be kept confidential and that the position announcement
made no mention of confidentiality. The trial court held
that these documents were reasonably necessary to record
the business activities required to be done or carried
on by a public officer so as to make the documents 'public
writings' within the meaning and definition of §
36-12-40. It also found that none of these documents were
confidential or contained sensitive material which would
require an exception to the established disclosure laws,
and that disclosure would in no way be detrimental to
the best interest of the public.
The Supreme Court upheld the
judgment of the trial court, and in fact, reprinted with
favor the lower court's ruling and rationale in its opinion.
Additionally, it expanded on its earlier decision in Stone,
stating that the exceptions set forth in that case must
be strictly construed and applied only in cases where
it is readily apparent that disclosure will result in
undue harm or embarrassment to an individual, or where
the public interest will clearly be adversely affected,
when weighed against the public policy considerations
suggesting disclosure. The Court further stated that the
Stone exceptions should not come into play merely because
of some perceived necessity on the part of a public official
or established office policy. Acknowledging that exceptions
to the broad language of the statute are needed and should
be applied under appropriate circumstances, the Court
noted that, "these exceptions must be narrowly construed
and their application limited . . . for it is the general
rule, and has been the policy of this state for a number
of years, to advocate open government. The Stone exceptions
were not intended, nor shall they be used, as an avenue
for public officials to pick and choose what they believe
the public should be made aware of."
The most recent case addressing
the Open Records Act was released by the Alabama Supreme
Court on January 16, 2004. In that case (Water Works
and Sewer Board of Talladega v. Consolidated Publishing
Co., 2004 Ala. LEXIS 5), the Supreme Court first found
that because the employees of the Water Works and Sewer
Board of Talladega were officers and servants of the City
of Talladega, that entity was subject to the Open Records
Act. The Court then reviewed trial court findings regarding
the applicability of certain exceptions carved out under
the Stone case.
The Water Works Board had refused
to provide The Daily Home newspaper with access to certain
records it maintained were related to a pending criminal
investigation and/or were sensitive personnel records
related to pending disciplinary actions. The newspaper
argued that since the legislature has now set out certain
exceptions to the Open Records Act, the Stone exceptions
should no longer apply2. The Court rejected this
argument, but did hold that Code of Alabama 1975,
§ 12-21-3.1(b) now defines the scope of the exception
for pending criminal investigations, and directed the
trial court to decide the applicability of the criminal
investigation exception to the documents in question in
light of that Code section.
With regard to the records
withheld because of a pending disciplinary action, the
Supreme Court upheld the trial court's finding that those
records were, at least temporarily, protected from disclosure.
Noting that it had not previously defined the limits of
the "sensitive personnel records" exception,
the Court found that the rule-of-reason balancing test
weighed against the immediate disclosure of those records,
because two of the employees whose disciplinary records
were requested by the newspaper were appealing the disciplinary
action. The Court stated that, "Presumably, the appeal
process provides 'a meaningful opportunity for employee
name clearing.' If the Water Board were to release the
requested disciplinary records before the conclusion of
that appeal process or some other name-clearing proceeding,
the affected employees might be deprived of a liberty
interest." The Court did note, however, that once
the affected employees have had a meaningful opportunity
to clear their names, the danger of the disclosure of
the records is removed, and the records are no longer
"sensitive personnel records" entitled to protection
under Stone.3
While the Supreme Court has
consistently ruled in favor of the disclosure of public
documents, it has also been careful to protect the government
pocket book against unreasonable requests for the collection
and reproduction of documents. For example, in Ex parte
Gill, 841 So.2d 1231 (Ala. 2002), a state prisoner
had requested numerous documents from the circuit clerk
without specifying what documents in particular he wanted
and without providing payment for the documents. The Circuit
Court denied his petition seeking an order directing the
clerk to supply the documents. The Supreme Court affirmed
the trial court's ruling, stating in part that the statute
"does not authorize a citizen to shift to the custodian
of public writings the tasks of inspecting them and identifying
the ones to be copied or the expense of copying those
and does not require the custodian to undertake the burden
and expense of mailing or otherwise delivering the copies."
The Court held that it was the responsibility of the citizen
or his or her agent to identify what documents were needed
under such reasonable safeguards established by the custodian
of records. "Likewise, the burden and expense of
copying the writings and taking the copies must be borne
by the citizen or his or her agent as provided by law
. . . or as required by such reasonable safeguards as
the custodian may impose."4
As is the case with the Open
Meetings Law, the Open Records Act is an important law
ensuring that the citizens have a right to be informed
about the activities and decisions of public officials
at every level of government. Counties should therefore
strive to make available to the public all relevant information
regarding the workings of county government, but must,
as the Court has noted on several occasions, look at each
situation individually to determine whether disclosure
is proper. It is advisable to establish general county
policy and procedure regarding the release of public writings
to members of the public, including the media. Such policy
should be developed in line with the philosophy adopted
by the Supreme Court and consistently applied by the attorney
general's office - in other words, with the presumption
of public disclosure. However, it is just as important
to keep in mind the exceptions outlined by the state's
highest court to ensure protection of confidential or
highly sensitive documents. It is also important to develop
the "reasonable safeguards" referenced by the
Court in In parte Gill, supra, to ensure that the county
does not take on an undue administrative burden in gathering
requested information or in paying the costs associated
with the collection, copying, and delivering of that information.
1 As discussed later
in this article, the Legislature has now created a statutory
exception to the Open Records Act for certain law enforcement
investigative reports and material. See, Code of Alabama,
1975, § 12-21-3.1(b).
2 There are still no
exceptions enumerated in § 36-12-40. However, over
the years, the Legislature has exempted certain records
from public disclosure. These exemptions are generally
found in statutes relating specifically to the "protected"
documents.
3 The Court relied,
in part, on a 1996 Attorney General's Opinion (Opinion
#96-003) in reaching its conclusion and rationale on this
issue.
4 For further guidance
on policy regarding reasonable access of records and payment
for same, see, Blankenship v. City of Hoover, 590 So.2d245
(Ala. 1991) and AG's Opinion#98-153, 98-019, 95-268.
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