The Alabama Legislature will consider a proposed overhaul of the state’s Open Records Act this week.
A bill sponsored by Sen. Cam Ward, R-Alabaster, and Rep. Chris Pringle, R-Mobile, would establish new procedures for public document requests and set penalties for custodians who do not follow those procedures.
Those penalties would be enforced by the Office of the Public Access Counselor, also created by the new bill, which would manage public inquiries and appeals.
Under the language of the new bill, government officials would have five working days after a document is requested to either provide that document or explain the specific state or federal law that allows those documents to be withheld. If the custodian of those documents fails to do either, they would be subject to $75 in fines per day after that deadline passes — up to $1,500 for the first violation, $3,000 for the second, and $3,500 for each violation beyond that.
The new bill also would mandate that, while governmental bodies may charge a “reasonable” fee for access to documents, they should not “exceed the actual cost incurred in accessing, duplicating, or supplying requested records.”
Members of the public dissatisfied with the response after they’ve requested documents can go to the public access counselor’s office, which would be established in the state’s Department of Examiners of Public Accounts. In essence, the public access counselor would serve as a mediator between the member of the public making the document request and the government office responsible for the document.
The counselor would have the authority to issue rulings on disputed requests, including whether to grant custodians of requested documents extensions on the five-day deadline. The counselor would also have the power to order custodians to provide documents to requestors; any appeals to the counselor’s decision would need to be filed in circuit court.
Closing the Gap
While Alabama’s current open records law affirms that citizens have a right to access public records, the law offers no means of compelling officials to actually provide the documents.
In fact, a large part of the existing law only serves to outline which documents are not covered by the Open Records Act, such as records concerning security measures, critical infrastructures and other records “the public disclosure of which could reasonably expected to be detrimental to the public safety or welfare.”
That lack of procedural specificity has led to Alabama being ranked as having one of the worst freedom-of-information laws in the country.
“Boy, it offers nothing,” said Kevin M. Goldberg, a member of the Washington, D.C.-based law firm Fletcher, Heald and Hildreth, who serves as legal counsel to the American Society of News Editors. “It really offers no substantive right other than the right to get records somehow — and then it leaves it up to the government to define exactly how, which is just ripe for abuse.”
Alabama’s existing open records laws are “very weak,” Goldberg said, and “do nothing to define reasonable fees or exemptions or the obligations of the agencies to justify exemptions.”
If a government body does not provide requested documents, the only option for those making the request is often to sue for access in state circuit court, the cost of which can be prohibitive.
“A lot of your average citizens can’t afford that,” said Ward, one of the bill’s sponsors. “They can’t afford to go to court; they can’t afford a lawyer … . This (change) allows easier access.”
Goldberg agrees. “I think this bill will go a long way to closing that gap,” he said.
Both Ward and Goldberg also point toward changing modes of technology as motivating changes to open records laws, not just in Alabama, but throughout the country.
“What I think we’re seeing right now, if nothing else, is the modernization of laws,” Goldberg says. “You might have laws that were written soon after the federal FOIA law in the late ‘60s or in the early ‘70s, and those state laws might be out of date. They haven’t kept up with changing technology, for instance, or processing ability that comes from using technology. They just need to be tweaked. I would say that Alabama is really engaging it. They’re really rewriting the whole law.”
Ward said his proposed changes to the act largely stemmed from “technology issues.” The new bill updates the language and fee structure surrounding digital-format files as well as GIS data.
“It’s long overdue to be upgraded,” he said. “Many cities and counties are still operating under the old statute where … they’ll charge you a dollar per page, when in fact usually documents are now electronic versions … There’s a need to upgrade the law to fit 21st century technology.”
Ward said a key part of the bill — the creation of the Office of the Public Access Counselor — was “copied from Florida,” a state that he said “really has the Cadillac version” of open records laws.
“We copied a lot from them,” Ward said, “(In regards to) having a central office and also defining what was a reasonable time to give a response.”
Goldberg agreed that Florida’s transparency laws are strong — but just as important, he said, is that it has a “great tradition of openness” that goes beyond simple legislation. A large part of that comes through education — both for officials and members of the public.
“I do think that the language (of the law) is important, but I do think that a tradition of openness in which agency staff cannot simply say, ‘These are my records and I will give them out to you over my dead body,’ will be important,” he said. “An independent (counselor) is important, but I also think that (requestors) should be responsible as well. Training of all these folks and public education can be useful as well, because … (if) everybody starts filing wildly overbroad records requests, the whole system crashes under its own weight pretty quickly.”
“Cultivating a culture of openness takes time … . Don’t expect to wake up the morning after this law is enacted and suddenly have transparency,” he said. “It can take you a generation to get to where you need to be. It probably will.”
But, Goldberg said, the new bill takes Alabama in the right direction. “It’s necessary,” he said. “You absolutely need that baseline, words on paper that define your rights. Alabama just doesn’t have it right now.”
The state Legislature will begin considering the bill this week, said Ward, who said he expects it to become law fairly easily.
“I feel good about it,” he said. “There’s a lot of commonsense stuff … . It’s hard to argue against this, I’ll say that.”