Everything online journalists need to protect their legal rights. This free resource culls from all Reporters Committee resources and includes exclusive content on digital media law issues.
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James P. Pewitt
Alan D. Mathis
Joseph W. Carlisle
Don B. Long III
JOHNSTON BARTON PROCTOR & ROSE LLP
Colonial Brookwood Center
569 Brookwood Village, Suite 901
Birmingham, AL 35209
Telephone: (205) 458-9400
Facsimile: (205) 458-9500
Before the enactment of section 2695 of the Alabama Code of 1923, there was no statutorily protected right of access to public records in Alabama. See Excise Comm'r of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 60 So. 812 (Ala. 1912). At common law, however, the records of judicial proceedings were open to inspection by any citizen, and there was a qualified common law right of access to nonjudicial records. 60 So. at 813. The Supreme Court of Alabama described the qualified right of access to nonjudicial public records as follows:
With respect to records other than judicial, no statute to the contrary intervening, the public generally have no absolute right of access or inspection. And one who demands that right can be properly required to show that he has an interest in the document which is sought, and that the inspection is for a legitimate purpose. But, for the public and for individuals showing such a right, the custodian of official documents is a trustee; and while he may and should preserve them against impertinent intrusion, he should allow ready access to those who have an interest in them, and who claim access for the purpose of promoting or protecting it.
60 So. at 813. Furthermore, the court defined "interest" broadly, as follows:
[I]f the document may furnish evidence or information relative to any action or proceeding which [the requester] is qualified to bring, or which he may be called upon to defend, whether actually pending or not, he is entitled to such inspection. And "it is not necessary that the interest be private, capable of sustaining a suit or defense on the personal behalf of the party desiring the inspection; but he has the right of inspection whenever, by reason of his relation to the common interest, he may act in such a suit as the representative of a common or public right."
60 So. at 813-14 (citations omitted). See also Brewer v. Watson [Brewer III], 71 Ala. 299, 303 (1882) ("We regard it as settled, that the book kept by the auditor, in obedience to the requirement of the statute, in which he enters the accounts of tax collectors with the State, is a public writing or record, subject to the inspection of any citizen having a legitimate interest, which an inspection will subserve.").
When the Alabama Code of 1923 was adopted, the State's first open records statute provided as follows: "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." Ala. Code § 2695 (1923). This provision continued unchanged until 1983, when the Alabama Legislature added a proviso exempting from public access the registration and circulation records of public, public school, and college and university libraries. Another change came in 2004, when the law (hereinafter "the Public Records Law") was amended to exempt records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation, information concerning critical infrastructure and critical energy infrastructure information, the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public. Ala. Code § 36-12-40 (Supp. 2005).
When compared to other states' public records statutes, section 36-12-40 is a sweeping statement of public policy concerning the right of citizens to inspect public records. Because of its breadth, however, the law regarding access to public records in Alabama has received substantial gloss by judicial decision, with the Alabama Supreme Court recognizing a number of possible grounds for denying access even where there is no express statutory provision for doing so. See Stone v. Consolidated Publishing Co., 404 So. 2d 678 (1981) (establishing the basic grounds for possible withholding of records absent an express statutory basis for doing so). The Court also has insisted that these possible grounds of exclusion be narrowly construed, however, so that the Public Records Law will continue to be liberally applied in favor of public access. See Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989).
The right of access to public meetings in Alabama was first guaranteed by legislative enactment in 1915 and became sections 5254 and 5255 of the Alabama Code of 1923. Section 5254 provided that
[n]o executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: The Alabama public service commission, school commissions of Alabama, the state board of administration, board of compromise of Alabama, state or county tax commissions of Alabama, any court of county commissioners or board of revenue, any city commission or municipal council, or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.
Section 5255 provided that persons who violated section 5254 would be guilty of a misdemeanor and would be fined not less than $10 nor more than $500. The 1923 statutes were combined into a single statute in 1975, Ala. Code § 13-5-1 (1975), and the provisions of the 1923 Code remained, almost verbatim, at § 13A-14-2 (1994) of the Alabama Code until 2005.
In March 2005, the Alabama Legislature passed the Alabama Open Meetings Act, which took effect on Oct. 1, 2005, and repealed § 13A-14-2. See Ala. Code § 36-25A-1 et seq. (Supp. 2005). The Alabama Open Meetings Act provides a much higher level of detail than the former open meetings law, and while it provides more exceptions than the former law, it has also tightened judicially created loopholes in the former law. By setting out the law in more detail, the Alabama Open Meetings Act reduces the need for court interpretation and, therefore, should avoid court rulings similar to those that rendered the former law less effective.
Alabama's Public Records Law and the Alabama Open Meetings Act are reproduced in their entirety in the appendix to this Alabama outline. In addition to these general statutes, the Alabama Code, Constitution, and Administrative Code contain specific provisions regarding access to particular records and meetings. Most of the specific provisions that call for public access are redundant (since the meetings and records in question would be open under the general statutes) or are circular. See, e.g., 10 Ala. Admin. Code r. 450-1-1-.09 (Supp. June 30, 1991) ("All public records of the Highway Department shall be available for public inspection except those specifically exempted by Alabama statute."). The specific provisions that call for confidentiality, and many of the specific provisions that call for public access, are noted in the applicable categories of the Alabama outlines below.
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The primary legislative statement regarding the right of individuals to inspect and copy public records of the State of Alabama is contained in Alabama Code § 36-12-40 (Supp. 2005), as follows:
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. Provided, however, registration and circulation records and information concerning the use of the public, public school or college and university libraries of this state shall be exempted from this section. Provided further, any parent of a minor child shall have the right to inspect the registration and circulation records of any school or public library that pertain to his or her child. Notwithstanding the foregoing, records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation information concerning critical infrastructure (as defined at 42 U.S.C. § 5195c(e) as amended) and critical energy infrastructure information (as defined at 18 C.F.R. § 388.113(c)(1) as amended), the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public shall be exempted from this section. Any public officer who receives a request for records that may appear to relate to critical infrastructure or critical energy infrastructure information, shall notify the owner of such infrastructure in writing of the request and provide the owner an opportunity to comment on the request and on the threats to public safety or welfare that could reasonably be expected from the public disclosure of the records.
In Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981), the Supreme Court of Alabama defined "public writing" to include both
a. "all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer," Ala. Code § 41-13-1 (2000), and
b. "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." 404 So. 2d 678, 680-81 (Ala. 1981) (emphasis in original). See also Walsh v. Barnes, 541 So. 2d 33, 35 (Ala. Civ. App. 1989) (referring to and applying the two Stone standards — the stricter standard ("required by law to be kept") and the lesser standard ("reasonably necessary").
Two additional statutes specifically require public officers and servants to make and keep records and to produce those records upon request, as follows:
a. "All public officers and servants shall correctly make and accurately keep in and for their respective offices or places of business 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 or servant and from which the actual status and condition of such activities and business can be ascertained without extraneous information . . .," Ala. Code § 36-12-2 (2001); and
b. "Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor . . .," Ala. Code § 36-12-41 (2001).
The Supreme Court of Alabama also established the following rules of statutory construction, presumptions, and burden of proof for the Public Records Law:
a. "It is clear from the wording of § 36-12-40 that the legislature intended that the statute be liberally construed," Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala. 1989);
b. "There is a presumption in favor of public disclosure of public writings and records expressed in the language of § 36-12-40," 552 So. 2d at 856; and
c. "[B]ecause there is a presumption of required disclosure, the party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them," 552 So. 2d at 856-57.
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By the express terms of the Alabama Public Records Law, the right to inspect and take a copy of public writings of the State of Alabama inures to the benefit of every citizen. See Scott v. Culpepper, 220 Ala. 393, 393-94, 125 So. 643, 644 (1930) (The law "gives every citizen a right to inspect and take a copy" of public records.). Although the statute does not contain a definition of the term "citizen," that term probably indicates that the statute was intended to apply to United States citizens, since the Alabama Legislature could easily have limited the statute to citizens of Alabama by express language but did not do so. However, there is no reported case in Alabama in which a citizen of another state has sought to invoke the provisions of the statute. Because the statute expressly provides for right of access of "citizens," by standard rules of statutory construction foreign nationals would not have a right of access under the statute.
In Person v. State Dep't of Forensic Sciences, 721 So. 2d 203 (Ala. Civ. App. 1998), the Court of Civil Appeals held that although § 36-12-40 gives every citizen the right to inspect and to copy public records, it does not require that state agencies make copies of the records and mail them to prisoners who have asked to review them. Furthermore, the Court held, the Department of Forensic Sciences can require an inmate to give reasonable grounds for wanting to inspect public records relating to protocols for drug testing to ensure that the inmate wants the information for a legitimate or proper purpose. Id. at 205.
The "news media" have a right of access under Alabama's Public Records Law, whether the requester is a company or corporation or other business form. See Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala. 1981) (by implication). A professional organization has standing to bring suit for access to public records under the law, Birmingham Education Ass'n v. Birmingham City Bd. of Educ., CV 4-637 at 2-3 (Cir. Ct. of Jefferson County, Ala., Nov. 15, 1995) ("BEA, and any other citizen, is a proper plaintiff with standing to seek [records under Alabama's Public Records Law]."), as does a requester who seeks access to public records for "a commercial purpose," Walsh v. Barnes, 541 So. 2d 33, 35 (Ala. Civ. App. 1989) (Alabama's Public Records Law "makes no distinction between disclosure for profit or otherwise.").
The Alabama Public Records Law contains no provision with respect to whether a requester's purpose can affect the right of access to public writings. In Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941), the Alabama Supreme Court ruled that although the public has the right of a reasonable and free examination of public records, this privilege does not exist where "the purpose is purely speculative or from idle curiosity." Holcombe, 200 So. at 746. The Holcombe court expressly recognized the legitimacy of media interest in public records, however, as follows:
[P]ersons engaged in the publication of newspapers have such an interest in the public records of public officers as to entitle them to a due or reasonable inspection of such public records. The function of the press in gathering information for the public to enable public affairs to be intelligently discussed is of great importance.
240 Ala. at 597, 200 So. at 746.
Alabama courts have also recognized the legitimacy of commercial purpose in a request for access to public records. The Alabama Court of Civil Appeals has noted that § 36-12-40 "makes no distinction between disclosure for profit or otherwise," and that court refused to create a distinction where the statute had not. Walsh v. Barnes, 541 So. 2d 33, 35 (Ala. Civ. App. 1989) ("[t]here is no exception under § 36-12-40 disallowing one to inspect or copy public writings simply because one desires to use such for personal gain;" insurance agent entitled to copy of retirement system's actuarial tables).
A 1991 decision of the Supreme Court of Alabama affirmed the right of the custodian of public records in the City of Hoover to require the requester to complete a written request form that includes (1) specification of the documents sought and (2) the reasons for the document request. Blankenship v. City of Hoover, 590 So. 2d 245 (Ala. 1991). As a concurring/dissenting justice pointed out in a separate opinion in that case, the mere fact of asking for a reason for the request could have a chilling effect on the right of access to public records. 590 So. 2d at 251-52 (Adams, J., concurring in part and dissenting in part). Members of the news media have been granted access to public records routinely, however, since the City of Hoover began requiring the written request form, simply by identifying their reason as "public records request pursuant to Alabama law" or some similar statement.
More recently, the Supreme Court of Alabama has held “a requester is not required to demonstrate good cause before he or she is entitled to inspect public writings.” Ex parte Perch, 17 So. 3d 649, 651 (Ala. 2009) (holding that an inmate did not have prove that his requests for public records were relevant or necessary for him to challenge the validity of his conviction).
Rule 33 of the Alabama Rules of Judicial Administration provides that a requester of computer-based information that is maintained by the Administrative Office of Courts ("AOC") must supply the following information, which will be used in evaluating the request:
(1) Identifying information concerning the applicant;
(2) Statement of the exact information requested;
(3) Statement of the reasons the information is sought;
(4) Statement of the intended use; and
(5) Statement as to whom the information will be distributed or disclosed.
Computer-based information about pending cases is available online, however, through the State's ALALINC system, for an annual user fee, with no inquiry as to the purpose of the request for ALALINC service.