Although the state’s public records law does not specifically cover electronic records, several attorney general opinions and court cases have recognized computerized information as public record. Like some other states, Alabama law governing what fees can be assessed for public records is somewhat vague. Some reporters say that the definition of what is a “reasonable” cost varies greatly from agency to agency.

The law. The Alabama Public Records Law provides access to “public writings,” without more definition, but recent statutes, case law and attorney general opinions have recognized that the term includes electronic records. Alabama Code § 22-9A-21(f).

Cases & opinions. A circuit court judge ruled that state law required the Alabama Department of Public Safety to release electronic information about driving records to a newspaper from the department’s databases. The court held that computer tapes are “public writings.” Birmingham News Co. v. Peevy, 21 Media L. Rep. 2125 (Ala. Cir. Ct. 1993). In light of the Driver’s Privacy Protection Act, however, access to drivers license data may be interpreted differently.

Computer records maintained in the office of the tax assessor constitute public records that may be supplied to citizens under reasonable conditions. 209 Ala. Op. Att’y Gen. 29 (Nov. 4, 1987).

Probate judges may enter into an agreement with a vendor to make records maintained in their offices available via computer from remote locations so long as they allow similar access to anyone requesting it on the same terms. Ala. Op. Atty. Gen. 2000-076 (Feb.2, 2000).

One Alabama Attorney General opinion has declared, however, that in response to a request for a diskette of personnel data, the requested data need not be provided in the particular format: “It is not [a public agency’s] responsibility or duty to provide the information to [the requester] in a particular form nor must [the agency] necessarily compile or assimilate the information for the public. Your responsibility is to provide reasonable access to the information and for the information to be a reasonable form (e.g. legible copies if possible or in regular language rather than a code form a person outside the office would not be familiar with).” Op. Att’y Gen. No. 88-00079 (Dec. 16, 1987)

In 1991, the Alabama Legislature established the Alabama Criminal Justice Information Center (“ACJIC”) and mandated that a number of categories of information be sent to the Center by state and local law enforcement agencies for storage in the Center’s computer database. Most of the categories of information are public records at the originating agencies, but the ACJIC Act bars public access to its computerized information except on a “need to know” and “right to know” basis. Arguably, the legislature deems the compilation of that data in computer form to be more invasive of privacy rights than the ungathered data. See Alabama Code §§ 41-9-620 et seq. (1991). See also Alabama Code § 41-9-594 (Supp. 1996) (ACJIC commission shall appoint a privacy and security committee); Alabama Code § 41-9-136 (1991) (“Provision of information [by ACJIC] shall be limited by . . . the right of privacy . . . .”); Alabama Code § 41-9-642 (1991) (ACJIC legislation gives no authority to “invade the privacy of any citizen”).

Rule 33 of the Alabama Rules of Judicial Administration provides the following criteria for evaluating requests for computer-based information that is maintained by the Administrative Office of Courts (“AOC”) regarding court cases in Alabama: (1) Availability of data; (2) Specificity of request; (3) Potential for infringement of personal privacy created by release of the information requested; (4) Potential for abuse or misinterpretation of the information requested as it related to its intended use; and (5) Potential disruption to the internal, ongoing business of the courts.

Fees. The state may charge the “actual, reasonable cost” required to create a new computer program to comply with an open records request. Where a newspaper wanted copies of computer tapes of driving records, it still had to pay $5.75 for every driving record identified by a named driver that is generated electronically. Birmingham News Co. v. Peevy, 21 Media L. Rep. 2125 (Ala. Cir. Ct. 1993). Statutes allow a record custodian to charge “legal fees” for certified copies. Ala. Code § 36-12-41 (1991). However, the statute does not address charges for noncertified copies, nor does it set limits on cost.

There is no uniform fee schedule or formula for the assessment of fees for copies of electronic records. In Birmingham News Co. v. Peevy, 21 Media L. Rep. (BNA) 2125 (Cir. Ct. of Montgomery County, Ala., July 22, 1993), the trial court ordered the requester to pay (a) “the actual, reasonable cost incurred by the Department [of Public Safety] to create any new computer program required to comply with [the Plaintiff’s request for motor vehicle records]” and (b) the statutorily mandated fee of $5.75 “for each and every individual driving record identified by named driver in any such copy of the Department’s databases delivered to the Plaintiff,” id. at 2125, presumably on the ground that the MVR fee statute makes no distinction for the form in which the MVR records are produced. Alabama Code § 32-7-4 (1999) (as of Sept. 13, 1997, access to MVRs has been governed by 18 U.S.C. § 2721).

Rule 33 of the Alabama Rules of Judicial Administration provides that the Administrative Director of Courts (“ADC”) will promulgate policies and procedures — including a schedule of costs — for handling applications for computer-based information that is maintained by the Administrative Office of Courts (“AOC”). No such cost schedule has been established, but AOC computer-based information is available through two on-line services, ALALINC and Remote Access. ALALINC has an annual user fee of $100 and provides access to current appellate decisions of the Alabama Supreme Court, Alabama Court of Civil Appeals, Alabama Court of Criminal Appeals, U.S. Circuit Court of Appeals for the Eleventh Circuit, and U.S. Supreme Court, in addition to general information about Alabama’s criminal justice system, directories of judicial officers, and related educational information. Remote Access has a one-time user fee of $100, a base fee of $35 per month, and a usage fee of $35 per minute; it provides access to case action summaries of pending civil and criminal actions in all Alabama trial courts, with search capacity.

Much more typically, there will be no statutorily mandated fee, and the fee for records in electronic format should be subject to the same reasonable-cost-of-production requirement that governs records requests in any other form.

Profit-making. The Alabama Code provides for the sale of information from the Alabama Criminal Justice Information Center (ACJIC) at a fee not to exceed $25, with all fees collected going to the State’s General Fund. Alabama Code § 41-9-644 (Supp. 1996). There is as yet no other provision for generating revenue by the sale of public records in electronic form.

Online. “If the county appraisal, mapping, and assessment data qualifies as a compilation of facts protectible under copyright law, a copyright would protect from the reproduction of the facts in the exact same format. The facts themselves, however, would not be protected.” Att’y Gen. Op. No. 1998-1588 (June 8, 1998).

Resources. Alabama Press Association public records guide; Alabama Attorney General Opinion Search