C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure.

Criminal judicial records are subject to federal constitutional rights of access and particular required procedures for closure of such records. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1132-35 (Ala. Crim. App. 1993) (required procedure for closure of criminal records set forth, applying First Amendment right of access); Ex parte Consolidated Publishing Co., 601 So. 2d 423, 433-34 (Ala.), cert. denied, 113 S. Ct. 665 (1992).

Civil judicial records are subject to common law right of access, see Brewer v. Watson [Brewer I], 61 Ala. 310, 311 (1878), and access under Alabama's Public Records Law, see Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993). The Holland court held that a motion to seal civil court records can be granted only after the trial court (a) conducts a hearing and (b) makes "a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:

(1) constitutes a trade secret or other confidential commercial research or information; or

(2) is a matter of national security; or

(3) promotes scandal or defamation; or

(4) pertains to wholly private family matters, such as divorce, child custody, or adoption [citing Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); Ex parte Balogun, 516 So. 2d 606 (Ala. 1987)];

(5) poses a serious threat of harassment, exploitation, physical intrusion or other particularized harm to the parties to the action; or

(6) poses the potential for harm to third persons not parties to the litigation." 614 So. 2d at 1016 (citations deleted; emphasis added).

A record including documents relating to a settlement agreement could not be sealed because the party seeking to have it sealed failed to show extraordinary circumstances outweighing the presumption for openness. Byrd v. First Real Estate Corp., CV-95-N-3087-S (N.D. Ala. 1998).

Nonjudicial public records in Alabama are subject to the following categories of court-derived and common law exclusions — which are precatory, not mandatory — that may justify keeping otherwise-public records confidential, despite the absence of an express statutory exclusion to the Public Records Law:

1. When undue interference or hindrance in the discharge of a public officer's duties would result. See Holcombe v. State ex rel. Chandler, 240 Ala. 590, 597, 200 So. 739, 746 (1941); see also Munger v. State Board for Registration of Architects, 607 So. 2d 280, 284 (Ala. Civ. App. 1992); Birmingham News Co. v. Hornsby, CV 94-103-TH (Cir. Ct. of Montgomery County, Ala., Mar. 18, 1994) (access to Alabama Department of Human Resources Final Decision in child abuse/neglect case denied because disclosure would unduly interfere with efficient administration of duties of the Department by chilling public's willingness to report allegations of abuse). See also Op. Att'y Gen. Ala. No. 1988-079 at 5 (Dec. 16, 1987); 190 Op. Att'y Gen. Ala. 33, 33 (Mar. 7, 1983).

2. When speculation or idle curiosity is the sole purpose of the request. Holcombe v. State ex rel. Chandler, 240 Ala. 590, 597, 200 So. 739, 746 (1941). As early as the Holcombe decision, however, the media were said to have such a legitimate interest in public records that this exclusion would not apply to media requests. 240 Ala. at 597-99. The "speculation or idle curiosity" exclusion has its roots in the common law principle barring requesters who do not have a "proper purpose" for their request. See Blankenship v. City of Hoover, 590 So. 2d 245, 247-48 (Ala. 1991). The "proper purpose" exclusion has, fortunately, become greatly attenuated and probably now would bar access only to those who sought access to the records in order to destroy or despoil them. See 590 So. 2d at 249-50.

3. Recorded information received in confidence by a public officer. See Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala. 1981) (a precatory, not mandatory, exclusion; subject to judicial rule of reason); see also Tuscaloosa News v. Garrison, No. CV-1999-408 (Cir. Ct. of Tuscaloosa County, Ala., May 31, 2000) (ruling delayed for a determination whether resumes for school board members had been submitted under a promise of confidentiality; the court indicated those resumes so submitted would not be subject to disclosure); Birmingham News Co. v. Muse [Muse II, 2d appeal], 669 So. 2d 138, 139 (Ala. 1995) (access to Auburn University's response to NCAA Letter of Inquiry held properly denied where disclosure would result in breach of numerous promises of confidentiality to participants in response); 200 Op. Att'y Gen. Ala. 25, 26 (Aug. 20, 1985) (information regarding inmates that should not be public includes "information received in confidence from law enforcement agencies"); 227 Op. Att'y Gen. Ala. 42, 48 (June 3, 1992) ("addresses and telephone numbers received [by the fire district from residents] under a promise of confidentiality should not be . . . released").

But see Bedingfield v. Birmingham News Co., 595 So. 2d 1379, 1381 (Ala. 1992) (need for confidentiality of communications in internal audit will not be presumed as necessary to ensure that public officials will be truthful); Birmingham News Co. v. Muse [Muse II, 1st appeal], 638 So. 2d 853, 861 (Ala. 1994) ("If this Court allowed a promise of confidentiality to end the inquiry, any state official could eliminate the public's rights under the Public and Private Writings Act.") (Houston, J., concurring in part and dissenting in part); Consolidated Publishing Co. v. Smith, CV 92-500197 (Cir. Ct. of Calhoun County, Ala., Oct. 16, 1992) ("The promise of confidentiality not to disclose the terms of [a settlement] agreement [between former City employees and the City] is not sufficient to preclude disclosure. . . . Upholding a pledge of confidentiality under these circumstances would be contrary to public policy because it would allow an office policy of [the City's] insurance carrier to circumvent the Open Records Law when the records would otherwise be open."); 221 Op. Att'y Gen. Ala. 24, 26-27 (Oct. 24, 1990) ("when public policy considerations in favor of disclosure are weighed against requests [by applicants for county administrator's position] to keep a resume confidential, the presumption in favor of disclosure outweighs a request of confidentiality unless the resume contains sensitive material, the release of which would cause undue harm or embarrassment to the applicant").

4. Sensitive personnel records. See Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala. 1981) (a precatory, not mandatory, exclusion; subject to judicial rule of reason); see also Advertiser Co. v. Auburn Univ., 17 Media L. Rep. (BNA) 1907, 1909 (Cir. Ct. of Lee County, Ala., Mar. 29, 1990) (investigatory report by attorneys into alleged wrongdoing of public official not information "from a personnel record"; sensitivity of information sought is not dispositive); Birmingham Education Ass'n v. Birmingham City Board of Education, CV 94-2637 at 4 (Cir. Ct. of Jefferson County, Ala., Nov. 15, 1995) (lists of employee names for transfer, nonrenewal of contract, cancellation of contract, suspension, or dismissal are not "sensitive personnel records" despite "potential for some embarrassment to employees whose names appear on the list"); 227 Op. Att'y Gen. Ala. 60 (June 11, 1992) (names, titles and compensation of county employees are not sensitive personnel records); Op. Att'y Gen. Ala. No. 96-00003 at 4, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995) ("In general, applications, disciplinary actions, and memoranda of reprimand are documents reasonably necessary to conduct business, and thus subject to disclosure . . .," as are salary expenditure, race, current assignment, rank and type of teaching certificate, employment experience record, employee's salary, areas of endorsement, sex, date of hire, date employee attained tenure).

But see Mobile Press Register Inc. v. Jordan, CV 95-1593 at 3-4 (Cir. Ct. of Mobile County, Ala., June 2, 1995) (proposed organizational chart of superintendent presented to school board "as of this date is a 'sensitive personnel record'"); Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991) (W-2 forms of public employees are sensitive personnel records in that they "would disclose whether or not an individual employee has elected to participate in income-deferral plans, insurance plans, or similar benefits which are more personal than public in nature") (quoting trial court opinion); Advertiser Co. v. Montgomery County Bd. of Educ., CV-05-389 (Cir. Ct. of Montgomery County, Ala., Oct. 7, 2005) (refusing to hold that names of employees put on paid administrative leave are necessarily subject to public disclosure, but recognizing that disclosure could be required in some situations); Op. Att'y Gen. Ala. No. 88-00079 at 4 (Dec. 16, 1987) ("information such as psychological evaluations, family history, religious affiliation or political opinions or activities" could be sensitive personnel records) (in dicta); 212 Op. Att'y Gen. Ala. 26, 27 (Aug. 1, 1988) (employees' home address is private matter); Op. Att'y Gen. Ala. No. 96-00003 at 4, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995) (marital status, medical history, confidential recommendations for employment, and drug or alcohol testing results "will, in most cases, fall under the sensitive personnel records exception set out in Stone. . .[but] the party refusing to disclose should remember it has the burden of proving the information requested falls within an exception to the Open Records Act.").

5. Records of a pending criminal investigation. See Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (1981) (a precatory, not mandatory, exclusion; subject to judicial rule of reason); see also Burnham Broad. Co. v. Mobile, CV 92-2752 (Cir. Ct. of Mobile County, Ala., Aug. 4, 1992) (if documents sought were public records prior to being subpoenaed by grand jury, documents remain public records from the records-holder despite production of copies to grand jury).

6. Records privileged by common law. See Horne v. Patton, 291 Ala. 701, 708-09, 287 So. 2d 824, 829-30 (1973) (recognizing common law doctor-patient privilege).

The nonstatutory exceptions to the Public Records Law (often referred to as the Stone exceptions, from Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981)), are limited by the presumptions, statutory construction, and burdens of proof that were established in Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989), as follows:

a. The Public Records Law is to be liberally construed.

1. "It is clear from the wording of § 36-12-40 [the Public Records Law] that the legislature intended that the statute be liberally construed. In addition, we note, statutes intended for the public benefit are to be construed in favor of the public." 552 So. 2d at 856.

2. "[T]he judiciary has to apply the 'rule of reason.' However, it must be noted that this 'rule of reason' shall not be applied so as to hamper the liberal construction of § 36-12-40." 552 So. 2d at 856.

b. There is a presumption of disclosure under the Public Records Law.

1. "There is a presumption in favor of public disclosure of public writings and records expressed in the language of § 36-12-40." 552 So. 2d at 856.

2. "[B]ecause there is a presumption of required disclosure, the party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them." 552 So. 2d at 856-57.

c. Exceptions to the Public Records Law must be narrowly construed.

1. "The exceptions set forth in Stone must be strictly construed . . . ." 552 So. 2d at 856.

2. "[T]he Stone exceptions should not come into play merely because of some perceived necessity on the part of a public official or established office policy." 552 So. 2d at 856.

3. "[W]e emphasize that these exceptions must be narrowly construed and their application limited to the circumstances stated herein, for it is the general rule, and has been the policy of this state for a number of years, to advocate open government. The Stone exceptions were not intended, nor shall they be used, as an avenue for public officials to pick and choose what they believe the public should be made aware of." 552 So. 2d at 857.

Two further factors weigh in the balance after a court finds that one of the Stone exceptions applies, as follows:

The exceptions set forth in Stone must be strictly construed and must be applied only in those cases [1] where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or [2] where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure.

Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989) (emphasis and subpart numbering added).

"Undue harm and embarrassment" and "adverse to the public interest" are not separate exceptions, but only factors for the court to consider after an exception to disclosure has been proven. See, e.g., Advertiser Co. v. Auburn Univ., 17 Media L. Rep. (BNA) 1907 (Cir. Ct. of Lee County, Ala., Mar. 29, 1990) ("The matters sought are, of course, sensitive. The disclosure of the report in this case would not be detrimental to the best interests of the public."); State ex rel. Kernells v. Ezell, 291 Ala. 440, 282 So. 2d 266 (1973), quoting and applying Excise Commission of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 60 So. 812 (1912) ("In the present case, . . . whatever personal embarrassments might result from the disclosure of the names of those who have signed this recommendation must be regarded as matters of private interest; and, although they might become, in some sense, matters of public concern, even so, they are wholly subordinate to that paramount public interest — the maintenance and enforcement of public law"; recommendations ordered disclosed) (common law case prior to Public Records Law).

But see Birmingham News Co. v. Hornsby, CV 94-103 TH (Cir. Ct. of Montgomery County, Ala., Mar. 18, 1994) ("undue harm and embarrassment" applied as ground for exclusion rather than balancing factor after finding ground for exclusion). See also 221 Op. Att'y Gen. Ala. 24 (Oct. 24, 1990) ("undue harm or embarrassment" as factor to apply to "sensitive personnel records" ground for exclusion); 222 Op. Att'y Gen. Ala. 48 (Mar. 20, 1991) and 223 Op. Att'y Gen. Ala. 19 (May 17, 1991) ("undue harm or embarrassment" as factor to apply to "records received in confidence" ground for exclusion); see also 223 Op. Att'y Gen. Ala. 16 (Apr. 18, 1991) (pistol permits on file in sheriff's office are public records; "there is not a state privacy law").