The Anniston Star

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September 20, 2014

Despite generous-sounding records law, public documents often hard to get in Alabama

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Posted: Sunday, August 10, 2014 12:16 am | Updated: 1:09 am, Sun Aug 10, 2014.

Stephen Jackson programs computers for a living, but even he sometimes has trouble making sense of the Alabama Legislature’s online records.

“Honestly, I was lost,” said Jackson, creator of the website OpenBama, which strives to bring government data to the public in a readable form. “It wasn’t that the information wasn’t there, it was knowing how to get to it.”

Jackson, a Chelsea resident, isn’t the first person to run into frustration with the status of public records access in Alabama. While the state’s open records law — which gives people “the right to inspect or take a copy of any public record” — seems to hold promise for anyone seeking public records, experts say compliance with the law is haphazard at best.

In the next few months, as part of an ongoing series, The Anniston Star will take a closer look at the obstacles to public records access in Alabama — obstacles that pop up in matters as mundane as car accident reports and as momentous as lethal injection. For officials who don’t comply with the law, there’s little expectation of a penalty.

“Alabama’s dead last and it is because of a lack of a meaningful law,” said Robert Reed, director of programming for the Illinois-based Better Government Association. Last year, the nonprofit took a close look at the state of public records access in all 50 states, part of a larger examination of ethics laws across the country. Alabama came in last, the least open state in the Union.

All states have some sort of law governing public records, Reed said. Not every state has the means to enforce the law. In its study, the BGA looked for mechanisms designed to make sure open records laws were complied with. Did a state set a mandate that officials respond to a public records request within a certain time? Was there an appeals process when records requests were denied? Are there penalties for public officials who violate the law?

Alabama had none of that. It was one of three states that didn’t set a deadline for public agencies to respond to requests, and the only state that didn’t have an appeals process for people whose requests are denied.

“In other words, whatever you had there is woefully inadequate,” Reed said.

A need for information

Reporters might be the people with the most experience requesting public documents, but members of the public often need those records, too — especially if they’re involved in some sort of dispute.

In Anniston, over the past couple of years:

• Restaurant owner David Mogil petitioned the city twice for code enforcement records in a property dispute with a neighbor.

• Stephany Sollohub Harbin, sister of slain Anniston police officer Justin Sollohub, asked for records of benefits disbursed to her brother as part of a probate hearing on his estate.

• Dustin Merritt asked for records of ordinance violations at a Noble Street business, part of case he was making in small claims court.

“I didn’t have any problems at all,” Mogil said. “The people who handled that made it pretty easy.”

The Star knows about those requests because the city asks people seeking public records to fill out a form stating what records they want, and why. Those forms, too, become part of the public record. Over the past two years, news organizations have made 10 formal requests through that system, while other local residents made a total of 18 requests.

But those numbers don’t reflect less formal instances when people ask for a public document and don’t get it — or get it with strings attached. In several local cities, for instance, you have to pay a fee to get a copy of a police officer’s accident report — even if you’re the one who was in the accident.

Anniston charges accident victims $10 for reports. State troopers charge $15 to $20. Montgomery levies a $15 charge. The reports are typically only a few pages in length.

Police cite a provision in state law that allows governments to charge a “reasonable” fee for making copies of documents.

“The freedom-of-information act says that you can charge based on supplies and man-hours used to make the copies,” said Capt. Allen George of the Anniston Police Department. “The price is set by the chief though the administration.”

Dennis Bailey, counsel for the Alabama Press Association, says the term “reasonable” is a fluid term and a major shortcoming of the law.

“It is supposed to mean the amount of work and time it takes, as well as supply, but agencies take advantage of that,” Bailey said.

Lack of knowledge

Jackson, the OpenBama.com programmer, said most people understand they have a right to public records. Getting them is another matter.

“If you ask the person on the street if they have the right to government information, they would say yes, but asking them how to get that information, they might not be clear on,” he said.

It’s not a topic often covered in high school civics classes. Indeed, schools themselves are sometimes reluctant to release public records. Last year, The Star asked every school system in the state for records on attempts to ban certain books from school libraries. Parents who challenge books must fill out forms to make a challenge official; there’s no law protecting those forms from disclosure. Still, one-third of school systems withheld the forms.

Many cited the federal Family Educational Rights and Privacy Act, or FERPA, a law that protects student privacy. Open records advocates say FERPA is sometimes invoked in cases where it doesn’t apply.

For years, Jacksonville State University cited student confidentiality in denying The Star’s requests for cumulative, depersonalized information on how many athletes at the university have failed routine drug tests.

“The results are confidential for a number of reasons based on legal requirements pertaining to confidentiality, as well as agreements between the NCAA/JSU and our athletes,” the school’s attorney, Sam Monk II, wrote in an email.

The Star has made the request repeatedly since 2007; it was denied again last month.

“All universities look at FERPA broadly, because they lose federal funding if they release that information,” Bailey said. “So they always err on the side of caution.”

Tough appeals

There’s little to push institutions to err on the side of openness. Under a little-known portion of the state criminal code, a person who “refuses to deliver up” a government record to “a person lawfully entitled to receive such a record” is guilty of a Class A misdemeanor.

That statute has been only rarely invoked. More than 20 years ago, it was used unsuccessfully against a Birmingham police officer who allegedly eliminated a name from a jail roster.

People can also take state officials to court for access to state records, though there’s not much one can do short of filing a lawsuit.

Newspapers have been known to file those suits. In fact, one of the most-cited cases in Alabama’s public records law, Stone v. Consolidated Publishing, was filed by The Anniston Star in an attempt to obtain records on the finances of a nonprofit affiliated with Jacksonville State University. For individuals seeking records, lawyering up may be too costly and too time-consuming.

According to the Better Government Association, 16 states offer people a chance to appeal to an administrative authority when records requests are denied, saving the cost

of a court battle. Ten states send appeals to a legislative body. In 23 states, the law explicitly dictates that public records appeals must go to court.

Alabama is the only state that doesn’t have any specific direction on where public records appeals should go, the BGA’s report found.

That often leaves Alabama residents in the position of learning for themselves just how to go about seeking public records.

“It would be best if citizens knew their rights and exercised their ability to see public records often, so those same citizens can make well-informed decisions about who they elect as leaders,” Bailey said.

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