ACCESS TO GOVERNMENT RECORDS

A. Open Records Act: Alabama has one of the oldest open
records acts in the country. It was originally passed in 1915.
Alabama's basic public records inspection statute, ALA. CODE
§ 36-12-40, is brief and to the point:

1. The Statute: "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."

2. Overview: Because the statute does not define all terms used it is
subject to court interpretation. In many other states, the open records
statutes list detailed rules and exceptions. In Alabama, though, the
state public records law says simply that unless there is a state statute
that closes a public record from public view, it is open to public
inspection. With a few exceptions, the courts have leaned toward the
side of openness, rather than away from it and they have placed the
burden of proof upon the public officer seeking to withhold
production.

3. Right to a Copy: Another law gives certified copies the same legal
standing as originals and requires public officials to provide copies
on payment of fees.

ALA. CODE § 36-12-41: "Every 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
thereof, and such copy is admissible as evidence in like cases and
with like effect as the original writing."However, a public entity has
no legal duty to mail a copy to a person making such a request.
Person v. Alabama Department of Forensic Sciences, 721 So. 2d 203
(Ala. Civ. App. 1998). Whether a department elects to mail requested
copies is a departmental decision.

4. Definition of a Public Record: A third state statute defines public
records.

ALA. CODE § 41-13-1: "As used in this article, the term "public
records" shall include all written, typed or printed books, papers,
letters, documents and maps made/or received in pursuance of law
by the public officers of the state, counties, municipalities and other
subdivisions of government in the transactions of public business and
shall also include any record authorized to be made by any law of
this state belonging or pertaining to any court of record or any other
public record authorized by law or any paper, pleading, exhibit or
other writing filed with, in or by any such court, office or officer."

The Supreme Court of Alabama has said that a public writing is such
a record as is reasonably necessary to record the business and
activities required to be done or 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 Co., 404 So. 2d
678, 681 (Ala. 1981).

5. Duty to Preserve and Maintain Records: A fourth statute requires
government officials to accurately maintain and preserve public
records.

ALA. CODE § 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."

If a public official removes or disposes of government records in a
way not allowed by the appropriate records commission, that action
is illegal.

6. Statutory Exemptions: There are at least 42 specific exceptions to
the open records act found in the Alabama Code. A public official
refusing access to a document should be able to cite a statute that
exempts the document from disclosure. Some examples are:

a. Banking records. ALA. CODE §§ 5-3A-11 & 5-5A-43.b. Juvenile
court records. ALA. CODE § 12-15-101. Only limited group of
persons have a right to inspect juvenile records and those pertaining
to individuals granted youthful offender status. Clerk of the
Municipal Court of the City of Cordova v. Lynn, 702 So. 2d 166
(Ala. Civ. App. 1997).

c. Hospital records produced by subpoena. ALA. CODE § 12-21-6.

d. Probation reports (unless ordered released by the court). ALA.
CODE § 15-22-53.

e. Identity of medicaid recipients. ALA. CODE § 22-6-9.

f. Reports concerning suspected cases of certain diseases. ALA.
CODE §§ 22-11A-2, 14 & 22.

g. Tax returns and financial statements. ALA. CODE §§ 40-1-33 &
55.

h. Federal grant program requires that certain records or parts of
records be kept in confidence.