FOREWORD

Before the enactment of section 2695 of the Alabama Code of 1923, there was no statutorily protected right of access to public records in Alabama. See Excise Comm'r of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 60 So. 812 (Ala. 1912). At common law, however, the records of judicial proceedings were open to inspection by any citizen, and there was a qualified common law right of access to nonjudicial records. 60 So. at 813. The Supreme Court of Alabama described the qualified right of access to nonjudicial public records as follows:

With respect to records other than judicial, no statute to the contrary intervening, the public generally have no absolute right of access or inspection. And one who demands that right can be properly required to show that he has an interest in the document which is sought, and that the inspection is for a legitimate purpose. But, for the public and for individuals showing such a right, the custodian of official documents is a trustee; and while he may and should preserve them against impertinent intrusion, he should allow ready access to those who have an interest in them, and who claim access for the purpose of promoting or protecting it.

60 So. at 813. Furthermore, the court defined "interest" broadly, as follows:

[I]f the document may furnish evidence or information relative to any action or proceeding which [the requester] is qualified to bring, or which he may be called upon to defend, whether actually pending or not, he is entitled to such inspection. And "it is not necessary that the interest be private, capable of sustaining a suit or defense on the personal behalf of the party desiring the inspection; but he has the right of inspection whenever, by reason of his relation to the common interest, he may act in such a suit as the representative of a common or public right."

60 So. at 813-14 (citations omitted). See also Brewer v. Watson [Brewer III], 71 Ala. 299, 303 (1882) ("We regard it as settled, that the book kept by the auditor, in obedience to the requirement of the statute, in which he enters the accounts of tax collectors with the State, is a public writing or record, subject to the inspection of any citizen having a legitimate interest, which an inspection will subserve.").

When the Alabama Code of 1923 was adopted, the State's first open records statute provided as follows: "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." Ala. Code § 2695 (1923). This provision continued unchanged until 1983, when the Alabama Legislature added a proviso exempting from public access the registration and circulation records of public, public school, and college and university libraries. Another change came in 2004, when the law (hereinafter "the Public Records Law") was amended to exempt records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation, information concerning critical infrastructure and critical energy infrastructure information, the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public. Ala. Code § 36-12-40 (Supp. 2005).

When compared to other states' public records statutes, section 36-12-40 is a sweeping statement of public policy concerning the right of citizens to inspect public records. Because of its breadth, however, the law regarding access to public records in Alabama has received substantial gloss by judicial decision, with the Alabama Supreme Court recognizing a number of possible grounds for denying access even where there is no express statutory provision for doing so. See Stone v. Consolidated Publishing Co., 404 So. 2d 678 (1981) (establishing the basic grounds for possible withholding of records absent an express statutory basis for doing so). The Court also has insisted that these possible grounds of exclusion be narrowly construed, however, so that the Public Records Law will continue to be liberally applied in favor of public access. See Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989).

The right of access to public meetings in Alabama was first guaranteed by legislative enactment in 1915 and became sections 5254 and 5255 of the Alabama Code of 1923. Section 5254 provided that

[n]o executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: The Alabama public service commission, school commissions of Alabama, the state board of administration, board of compromise of Alabama, state or county tax commissions of Alabama, any court of county commissioners or board of revenue, any city commission or municipal council, or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.

Section 5255 provided that persons who violated section 5254 would be guilty of a misdemeanor and would be fined not less than $10 nor more than $500. The 1923 statutes were combined into a single statute in 1975, Ala. Code § 13-5-1 (1975), and the provisions of the 1923 Code remained, almost verbatim, at § 13A-14-2 (1994) of the Alabama Code until 2005.

In March 2005, the Alabama Legislature passed the Alabama Open Meetings Act, which took effect on Oct. 1, 2005, and repealed § 13A-14-2. See Ala. Code § 36-25A-1 et seq. (Supp. 2005). The Alabama Open Meetings Act provides a much higher level of detail than the former open meetings law, and while it provides more exceptions than the former law, it has also tightened judicially created loopholes in the former law. By setting out the law in more detail, the Alabama Open Meetings Act reduces the need for court interpretation and, therefore, should avoid court rulings similar to those that rendered the former law less effective.

Alabama's Public Records Law and the Alabama Open Meetings Act are reproduced in their entirety in the appendix to this Alabama outline. In addition to these general statutes, the Alabama Code, Constitution, and Administrative Code contain specific provisions regarding access to particular records and meetings. Most of the specific provisions that call for public access are redundant (since the meetings and records in question would be open under the general statutes) or are circular. See, e.g., 10 Ala. Admin. Code r. 450-1-1-.09 (Supp. June 30, 1991) ("All public records of the Highway Department shall be available for public inspection except those specifically exempted by Alabama statute."). The specific provisions that call for confidentiality, and many of the specific provisions that call for public access, are noted in the applicable categories of the Alabama outlines below.