pr basics - public records

PUBLIC RECORDS & ADMIN.

LEAVE

Dorman Walker

dwalker@balch.com

JULY 28, 2011

§ 36-36-12-40 The Open Records Act (ORA)

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.

Definition of Public Record

§ 41-13-1

– “public records” includes

“all written, typed or printed books, papers, letters,

documents and maps made/or received in pursuance of

law by the public officers of the states, counties,

municipalities and other subdivisions of government in

the transactions of public business,

Any record authorized to be made by any law relating to

public filings and court records.

Definition of Public Record

“Public writing”

– A record such as is reasonably necessary to

record the business and activities required to be

done and 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, 404 So.2d 678, 681

(Ala. 1981).

Right to a copy

§ 36-12-41

– 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, and such

copy shall be admissible in evidence in like cases

and with like effect as the original document.

Right to a copy

§ 36-12-41

– However, a public official has no duty to mail a

copy to a person who makes such a request.

Person v. Alabama Dept. of Forensic Sciences, 721

So.2d 203 (Ala. Civ. App. 1998)

Duty to Preserve Records

§ 36-12-2 – 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, and all of the books, documents, files, papers, letters and copies of letters so made and kept shall be carefully protected and safely preserved and guarded from mutilation, loss or destruction.

Exceptions to the OMA

– At least 42 spread throughout the Code

– Most are irrelevant to public schools

(e.g., hospital records produced by subpoena § 12-21-6)

Exceptions to the ORA:

Registration/circulations records from public libraries,

schools, colleges, and universities

Except to parents of guardians

(Patriot Act)

Exceptions to the ORA:

Records concerning security plans, procedures,

assessments, measures, systems

Records relating to the security or safety of persons,

structures, facilities, and other infrastructures

Information about critical energy infrastructure

Records the disclosure of which would otherwise be

detrimental to the best interests of the public

Exceptions to the ORA:

A public officer who receives a request for records that

“may appear to relate to critical infrastructure” shall

notify the owner of the infrastructure in writing of the

requests, and provide the owner an opportunity to

comment on threats to public safety that could result

from release of the requested information.

Exceptions to the ORA:

Registration/circulations records from public libraries,

schools, colleges, and universities

Except to parents of guardians

(Patriot Act)

Exceptions to the ORA – per Stone – Recorded information received by a public officer

in confidence,

– Sensitive personnel records,

– Pending criminal investigations, and

– Records the disclosure of which would be detrimental to the best interests of the public

– These are “some of the areas which may not be subject to public disclosure.”

Exceptions to the ORA

– Exception must be narrowly construed

– Apply exception only where

it is readily apparent that undue harm or embarrassment

to an individual might result, or

the public interest will clearly be adversely affected,

when weighed against the public policy considerations

suggesting disclosure.

– Blankenship v. City of Hoover, 590 So. 2d 245, 248 (Ala.

1991).

Because there is a presumption of required

disclosure,

The party refusing to disclose has the burden

of proving that the records sought are within

an exemption and warrant nondisclosure. Blankenship, 590 So. 2d at 248.

Interpretations of the ORA

Personnel Records

– Personnel records are public records and may be

accessed by the media, unless disclosure would

result in undue harm or embarrassment to the

individual, or public interest would clearly be

adversely affected.

Chambers v. Birmingham News Co., 552 So.2d 854

(Ala. 1989)(applications, résumés, and related

materials)

Interpretation of the ORA

Public school records of students generally

are protected from disclosure by FERPA.

Interpretations of the ORA

Records of BOE employees are not

protected by FERPA.

Interpretations of the ORA

Teachers‟ personnel records are public records: – Gross or salary and specific salary account, but not W-2

– Gender and role of the employee

– The employee‟s current assignment

– The teacher‟s rank and type of teaching certificate

– Employment experience

– Date of hire

– Date attained tenure

– Complaints (subject to due process rights)

– Actions recommended by the Superintendent and taken by the Board

Interpretation of ORA

Performance evaluations are public records

Whether they must be released depends on

whether they contain sensitive personnel

matters

– AG OP 99-00258

Advertiser v. MCBOE

The disclosure of the names of Board employees on administrative leave could violate those employees‟ constitutional rights unless those employees have been allowed an opportunity to clear their name. Therefore, this Court cannot grant the relief sought by the Advertiser. This Court can hypothesize situations wherein the Advertiser could make a stronger claim for the disclosure it seeks. Yet, it seeks a blanket declaration that it shall always be entitled to the names of these on paid administrative leave. Given a specific fact situation, the rights of the employee on paid administrative leave might well yield to the right of the public to know what public servants are up to. However, this Court is of the opinion that the unfettered access sought by the Advertiser is contrary to the established precedent which this Court is bound to follow.

– The Advertiser Company v. Montgomery County Board of Education.

Advertiser v. MCOBE

The facts-

– School nurse and coach accused of misconduct

– Students looking through blinds into nurses office

said they say them kissing and embracing

– The nurse was placed on administrative leave

until the Board could have a hearing about the

allegation and decide how to respond.

– The press wanted to know the “facts.”

Advertiser v. MCOBE

What could the press be told?

– Basically, nothing.

Advertiser v. MCBOE

Why is that?

– Because the nurse had a liberty interest in her

reputation, and so she was entitled to due

process. This means the nurse was entitled to

both an hearing and an appeal.

– The “facts” did not become final until the teacher

either (a) decided not to have a hearing, or take

an appeal, or (b) exhausted her appeal.

Advertiser v. MCOBE

If the Board released information about the

nurse and the accusations against her before

the facts were “final,” it could negatively

affect the nurse„s liberty interest in her

reputation.

Advertiser v. MCOBE

Lessons from this case:

– Generally, a Board should not release information

about why an employee was terminated or

disciplined until after the employee has decided

not to have a hearing, or has abandoned an

appeal, or has exhausted her appeal.

Advertiser v. MCBOE

“Given a specific fact situation, the rights of

the employee on paid administrative leave

might well yield to the right of the public to

know what public servants are up to.

However, this Court is of the opinion that the

unfettered access sought by the Advertiser is

contrary to the established precedent which

this Court is bound to follow.”

Reasonable regulations may be imposed

Public officers can require persons seeking

disclosure to complete a simple form indicating what

documents are sought, and why the persons wants

to see them.

“The individual who claims access to the public

records and documents,…can properly be required

to show that he has an interest in the document

which is sought, and that the inspection is for a

legitimate purpose.” Bankenship, 590 So. 2d at 247

No bright lines

The role of the courts is to apply a rule of

reason in determining what is a public writing

for inspection purposes. It is not required for

the court to establish exact boundaries to

apply in all cases. Walsh v. Barnes, 541 So.

2d 33, 35 (Ala. Civ. App. 1989).

Interpretations of the ORA

The purpose of the ORA is to allow private citizens to monitor in the manner in which public officers discharge their public duties.

The right is the same whether the requestor is a single person or a large group.

The right to access does not depend on whether the requestor intends to support of challenge the manner I which the public duty has been discharged.

– Graham v. ASEA, 991 So. 2d 710,717 (Ala. Civ. App. 2007).

Questions

Dorman Walker

334/269-3138, dwalker@balch.com