The Alabama Legislature isn’t ignorant to the weaknesses of the state’s Open Records Act (ORA). At its core, the law 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.” But it has been amended several times since 2004 to carve out exceptions for library records, safety and security, critical infrastructure and any disclosure “which would otherwise be detrimental to the best interests of the public.”
In total, the law is just 263 words in length, and it has been interpreted both broadly and inconsistently by municipalities, state agencies and the courts, said former State Sen. Cam Ward. In 2019, Ward introduced a 6,355-word bill to replace Alabama’s Open Records Act. Modeled on Florida’s existing public records law, it places the responsibility on government agencies to acknowledge requests for public records within five days of receipt, and resolve them within seven to 30 days.
More importantly, Ward said, his bill further defined public records as “a record made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency, including a record that is reasonably necessary to record the business of government” or, “a record received by, or maintained on behalf of, a private individual or private business from a governmental agency, governmental employee, or governmental official.”
The Legislature could choose to provide certain exemptions for sensitive material, Ward said, but his bill also recommended release of requested documents with the redaction of exempted material, rather than a complete denial of release.
“The issue goes back to the Open Records Act and how historically, it’s very vague,” Ward told Lagniappe this week, after the Supreme Court issued its opinion in the newspaper’s lawsuit versus Baldwin County Sheriff Huey “Hoss” Mack. “If you go into the legal rationale behind the majority opinion, It’s probably not incorrect based on the way the law is written. That’s why you have to tighten or change that law if you want to have better access to records.”
Ward left the Legislature last year to accept Gov. Kay Ivey’s appointment as director of the Alabama Bureau of Pardons and Paroles, but he believes lawmakers may revisit the issue in the 2022 legislative session. His 2019 bill died after heavy lobbying from government agencies and municipal clerks, he said, who argued “it would be too much work.”
But in Ward’s research, he said similar efforts in other states have resulted in only minor adjustments for government personnel. Notably, where courts have interpreted Alabama’s existing law to advise that any exemptions should be “narrowly construed,” Ward’s bill specifically declares: “The duty of all governmental agencies and political subdivisions of the state to provide access to public records should be broadly construed.”
“My bill was an update to a very antiquated law,” he said. “I thought it was too vague and it was too easy to avoid having to produce records, and the existing law does not have any language about digital records. It’s so much easier to get data today with modern technology, and the old law doesn’t address that.”
Accordingly, the word “record” was further defined in his bill to encompass “information inscribed on a tangible medium that is stored in an electronic or other medium and is retrievable in perceivable form, including all documents, papers, electronic mail, letters, maps, books, tapes, images, videos, films, audio recordings, or other material, regardless of the physical form, characteristics, or means of transmission.”
“The problem is the law now is so vague, it doesn’t address a lot of these issues,” Ward said. “And when it doesn’t address the issues, it leaves a lot of wiggle room to ignore open records requests.”
Lagniappe is a member of the Alabama Press Association, which after the Supreme Court ruling last week, reported it is “already at work on preparing a suggested legislative response that will hopefully be pre-filed before the 2022 regular session starts in January.”
According to chief legal counsel Dennis Bailey, the APA was disappointed in the result of the case.
“The Lagniappe decision goes out of its way to interpret the investigative privilege statute so broadly that it will likely lead to Alabama citizens having less access to things such as body cam or surveillance video, 911 transcripts and autopsy information, which are commonly available in other states during investigations,” Bailey said, noting Chief Justice Tom Parker’s dissent lists five reasons the decision was unsound. “It is not an understatement for Parker to say the opinion in the Lagniappe case renders the Open Records Act a ‘Closed Records Act’ when it comes to police investigations. In fact, application of this ruling will make Alabama law enforcement agencies the most secretive of ANY of the states in the Southeast and probably in the entire country. Secret police activities do not foster trust in law enforcement.”
Ward suggested some of his former colleagues were interested in reintroducing his proposed bill or similar one, but Lagniappe was unable to confirm by press time.
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