pr basics - public records
DESCRIPTION
Source: Dorman Walker, [email protected], as presented to the Alabama School Communicators Association July 28, 2011, What is a public record?TRANSCRIPT
§ 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).
