Editorial: Alabama open records law needs clarity and teeth

State law provides that every citizen of the state of Alabama “has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.”

Unfortunately, this seemingly clear statute leaves a lot unspoken, and local governments have used its ambiguity to render it effectively null and void on a host of occasions. Also, and most importantly, state law provides no enforcement mechanism. The only recourse anyone — be they a news organization or a private citizen — has when denied access to public records is to sue. And that is both an expensive and time-consuming process.

Last month, Gov. Kay Ivey ordered state agencies to follow new procedures for responding to public record requests. Ivey’s order instructs state agencies to respond to most requests within 15 days and the rest within 45. It also limits fees for access to public documents to $20 per hour for preparation time and 50 cents per page for paper copies.

Ivey’s order is a step in the right direction, but it is only a baby step. It applies only to state-level executive-branch agencies, meaning other branches, as well as local governmental and law enforcement bodies, can still make their own rules. More importantly, it still doesn’t provide an enforcement process.

According to The Associated Press, “A 2007 comparison of state open records laws conducted by the Better Government Association and the National Freedom of Information Coalition ranked Alabama at the bottom of the nation. While the review gave 38 states, including Alabama, an ‘F’ grade, Alabama tied for last place in the comparative rankings.”

So much for every Alabamian having “a right to inspect and take a copy of any public writing of this state.”

State Sen. Arthur Orr, R-Decatur, has in the past introduced legislation to put necessary teeth into Alabama’s open records law.

In 2021, he introduced a bill that would have, among other things, created an arbitration system so that people and news outlets could challenge refusals and foot-dragging by state and local agencies. The bill set a response time for public records requests, set reasonable fees, created an administrative remedy if agencies didn’t respond and set penalties for withholding records without justification.

Unfortunately, many of Orr’s colleagues said the bill did too much, and put too much of a burden on government agencies that would have to comply with record requests.

Orr has already said he plans to sponsor a bill in the upcoming session of the Alabama Legislature to codify Ivey’s order and extend it to other entities. We hope he can also get his colleagues on board with creating an enforcement mechanism like the arbitration process Orr introduced two years ago.

Also, after an Alabama Supreme Court ruling in September 2021 that makes it more difficult for the public to access records from law enforcement agencies, we need clear legislation stating in terms even court justices can understand that law enforcement is not immune from the state’s open records law.

“With one sweeping stroke, today’s decision spells the end of public access to law-enforcement records that are connected in any way to an investigation,” wrote Chief Justice Tom Parker in his lone dissent. “Hidden now from the public eye are body-cam videos, dash cam videos, 9-1-1 recordings, and anything else that is remotely connected to a crime or even potential crime. After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act.”

Cases like the one last month involving Memphis, Tennessee, police officers tell us how important access to police video can be.

The Alabama Legislature must clarify and put teeth in the state’s open records law if it is to remain meaningful at all.