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Alabama

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Alabama

An appeal from a decision of a state circuit court judge on a petition for injunction or writ of mandamus is to the Supreme Court of Alabama pursuant to Alabama Code § 12-22-6 (1995) and Rule 4 of the Alabama Rules of Appellate Procedure.

Alabama

Under Rule 4(a) of the Alabama Rules of Appellate Procedure, a notice of appeal must be filed with the clerk of the trial court within forty-two days (six weeks) of the date of entry of the order issuing or denying the permanent injunction or writ. The rule requires filing within fourteen days (two weeks) if appeal is taken on an order granting, continuing, modifying, refusing or dissolving a preliminary injunction or refusing to dissolve or modify an injunction. The Alabama Supreme Court may expedite an appeal for good cause, but may not extend the time for taking an appeal.

Alabama

There is no statutory provision for the award of attorneys' fees in public records cases in Alabama, but there is case law authority for the award of fees in open-government cases based upon a common-benefit theory. See Bell v. Birmingham News Co., 576 So. 2d 669 (Ala. Civ. App. 1991) (open meetings case; award of attorneys' fees upheld; citizens of Birmingham were benefited generally "by an action which enforces the requirements of the statute that the business of the City Council be conducted in open and public meetings"); Slawson v. Alabama Forestry Commission, 631 So. 2d 953, 959 (Ala. 1994) (open meetings case; award of reasonable costs and attorneys' fees "is appropriate when the trial court determines that a case will result in benefit to the general public") (remanded for determination of propriety of awarding fees); Advertiser Co. v. Auburn Univ., 579 So. 2d 645 (Ala. Civ. App. 1991) (recognizing discretionary right of trial court to award fees in public records case in which "a litigant rendered a public service by bringing an improper governmental practice to an end") (denial of fees upheld).

Despite the judicial approval for awarding attorneys' fees in public records cases, only one case could be found where a request for such an award has been granted. See Tuscaloosa News v. Garrison, CV-99-408 (Cir. Ct. of Tuscaloosa County, Ala., Jan. 15, 2001) (portion of fees granted; case involved both public records and open meetings issues); but see Advertiser Co. v. Auburn Univ., 579 So. 2d 645 (Ala. Civ. App. 1991) (denial of fees upheld); Birmingham Education Ass'n v. Birmingham City Board of Education, CV 94-2637 (Cir. Ct. of Jefferson County, Ala., Nov. 15, 1995) (fees denied: "[w]hile the result of this litigation will result in a benefit to the public, the Court finds that it is not such a benefit that would justify making an exception to the 'American Rule' that each party should be responsible for its own legal expenses"); Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991) ("In this case, there is no statute or contract providing for the award of attorney fees; and, based on the facts before us, we find no exceptions founded on equitable principles within which to fit this case. Therefore, we hold that the trial court did not err in refusing to award attorney fees."); Mobile Press Register Inc. v. Jordan, CV 95-1593 (Cir. Ct. of Mobile County, Ala., June 2, 1995) (claim for attorney fees denied, citing Blankenship, 590 So. 2d at 250).

There is early common law authority for the award of costs and fees in a public records cases, based upon the principle that a public official who wrongfully refuses to perform an official task is liable for compensatory damages. Brewer v. Watson [Brewer II], 65 Ala. 88, 96-98 (1880); Brewer v. Watson [Brewer III], 71 Ala. 299, 307 (1882). This common law authority plus the more recent judicial approval for awarding costs and attorneys' fees in public records cases make the possibility of such an award an important arguing point when attempting to gain access to documents that are clearly public records under Alabama law.

One potential hurdle in obtaining attorneys' fees in public records cases, however, is section 14 of the Alabama Constitution of 1901. Section 14 provides for state immunity from civil suit and has been interpreted to extend to state agencies. Although the Alabama Supreme Court has not addressed this issue, the Alabama Court of Civil Appeals recently reversed an award of attorneys' fees in a declaratory judgment action (not an open-government case) based on section 14 state immunity. Alabama Dep't of Environmental Management v. Town of Lowndesboro, 2005 Ala. Civ. App. LEXIS 172 (Ala. Civ. App. Apr. 8, 2005). The court held that prior Alabama Supreme Court cases upholding awards of attorneys' fees against state agencies were not binding precedent because the issue of section 14 state immunity had not been addressed. Id. at *38, 42. The court further held that section 14 bars an award of attorneys' fees even when the underlying action is not barred by the state-immunity provision. Id. at *56-58 (citing Haley v. Barbour County, 885 So. 2d 783 (Ala. 2004) (holding that civil contempt sanctions against state official were barred by section 14 of the Alabama Constitution). It is important to note, however, that section 14 immunity does not extend to municipalities. Id. at *47.

When an award of attorneys' fees is granted, it is not an "all-or-nothing" proposition. It is in the trial court's discretion to award a portion of the attorneys' fees. See Tuscaloosa News v. Garrison, CV-99-408, Order (Cir. Ct. of Tuscaloosa County, Ala., Jan. 15, 2001) (portion of fees granted; case involved both public records and open meetings issues).

Alabama

There is early common law authority for the award of costs and fees in a public records cases, based upon the principle that a public official who wrongfully refuses to perform an official task is liable for compensatory damages. Brewer v. Watson [Brewer II], 65 Ala. 88, 96-98 (1880); Brewer v. Watson [Brewer III], 71 Ala. 299, 307 (1882). This common law authority plus the more recent judicial approval for awarding costs and attorneys' fees in public records cases make the possibility of such an award an important arguing point when attempting to gain access to documents that are clearly public records under Alabama law.

Alabama

Settlement of records access cases in Alabama is often possible and desirable. Denial of access to public records is usually not a popular position for a public official to take in this traditionally populist state; therefore, public officials are sometimes willing to settle in order to avoid the publicity of further litigated controversy. The requester often benefits by a consensual resolution of the controversy because it is less expensive, and more certain, than trial. See, e.g., Moore v. Westover Water Authority, No. CV-96-000810 (Cir. Ct. of Shelby County, Ala.) (by agreement of the parties, the Water Authority's employment agreements were produced at the request of The Birmingham News, and a portion of the newspaper's attorneys' fees were paid); Birmingham News Co. v. Swift, CV 88-1390 G (Cir. Ct. of Montgomery Co., Ala., Sept. 7, 1988) (by stipulation of parties, State Director of Finance enjoined to preserve certain telephone records of State Legislature and to permit inspecting and copying of said records); Birmingham News Co. v. Birmingham Racing Commission, CV 87-501-622 MC (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 28, 1987) (by stipulation of parties, resolution adopted giving access to certain financial records of Birmingham Racing Commission); Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 19, 1986 (by consent of parties, access to arrest reports, with agreed-to deletions, ordered). If possible, settlement of a public records case should include agreement to a consent order by the court, as in the above-cited cases.

Alabama

Because court decisions on public records issues may have far-reaching consequences, press groups and others may have an interest in filing a friend-of-the-court brief on behalf of the request for public records. The filing of amicus curiae briefs is permitted by Rule 29 of the Alabama Rules of Appellate Procedure only with leave of the appellate court. Typically, the amicus brief is filed conditionally with the motion for leave. Amicus briefs must follow the form prescribed for the brief of an appellee in Rule 28(b) of the Alabama Rules of Appellate Procedure, and the brief must be filed within the time allowed to the party whose position on the appeal the amicus curiae brief will support. The motion for leave must identify the interest of the applicant and must state the reasons why the brief of an amicus curiae is desirable. Under Rule 29, an amicus curiae may participate in oral argument only upon motion and leave of the court and, unless additional time is granted, must share the time of the party whose position the amicus curiae supports.

Amicus curiae participation has been permitted, to substantial benefit, in the following recent records access cases under federal constitutional law in Alabama: Ex parte Consolidated Publishing Co., 601 So. 2d 423 (Ala.), cert. denied, 113 S. Ct. 665 (1992) (amicus brief and oral argument by Alabama Press Association for access to pretrial records in retrial of capital murder case); and Ex parte Birmingham News Co., 624 So. 2d 1117 (Ala. 1993) (amicus brief and oral argument by Alabama Press Association for access to pretrial records in criminal trial of Gov. Hunt); and in the following cases under the Public Records Law: Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981) (brief by Alabama Press Association); and Chambers v. Birmingham News Co., 552 So. 2d 854 (Ala. 1989) (brief by Alabama Press Association).

Press groups, members of the media and others interested in access to public records may also participate at the trial court level — either by moving to participate as an amicus curiae or by moving to intervene. Unlike a party who intervenes, a party who participates as amicus curiae may not add parties, raise new issues, or otherwise control the litigation. State ex rel. Baxley v. Johnson, 293 Ala. 69, 74, 300 So. 2d 106, 111 (1974). "The amicus curiae may, with permission of the court[,] file briefs, argue the case and introduce evidence." Id.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues.

Alabama

Although we know of no published cases involving a government suit against disclosure of public records, a declaratory judgment action filed by a governmental body under the former open meetings law in Alabama provides guidance if such an action should arise. In Huntsville-Madison County Airport Authority v. Huntsville Times, 564 So. 2d 904 (Ala. 1990), the Huntsville-Madison County Airport Authority claimed that the Huntsville Times newspaper "had accused it of conduct in violation of the [former] 'Sunshine Law.'" Id. at 904. The Authority brought a declaratory judgment action against the newspaper seeking answers to questions regarding whether the Authority was governed by the former Sunshine Law and, if so, to what extent. Id. at 905. The newspaper filed a motion to dismiss the action, asserting multiple grounds for dismissal, "including the lack of a justiciable controversy, prohibition against advisory opinions, failure to join indispensable parties, and failure to state a claim upon which relief could be granted." Id. The court granted the newspaper's motion and dismissed the Authority's action, holding that the Authority's complaint did not present a justiciable controversy, but rather sought an advisory opinion. Id.

Alabama

Alabama has no provision for administrative appeal from denial of access to public records. A public official who is reluctant to produce the requested records can sometimes be persuaded, however, to seek a ruling from the Alabama Attorney General's office, pursuant to the following statute:

[The Attorney General] shall give his or her opinion in writing, or otherwise, on any question of law connected with the interests of the state or with the duties of any of the departments, when required by the Governor, Secretary of State, Auditor, Treasurer, Superintendent of Education, Commissioner of Agriculture and Industries, Director of Department of Finance, Comptroller, State Health Officer, Public Service Commissioners, Commissioner of Conservation and Natural Resources, or the Director of the Department of Revenue or any other officer or department of the state when it is made, by law, his or her duty so to do, and he or she shall also give his or her opinion to the chairman of the judiciary committee of either house, when required, upon any matter under the consideration of the committee.

The Attorney General shall give his or her opinion, in writing or otherwise, as to any question of law connected with the duties of the following county or city officer when requested so to do in writing: judge of probate, clerk of the circuit court, sheriff, city and county boards of education, county commission, register of the circuit court, tax collector, tax assessor, mayor or chief executive officer of any incorporated municipality, city council or like governing body of any incorporated municipality, or any other officer required to collect, disburse, handle, or account for public funds.

Ala. Code § 36-15-1(a), (b) (2001).

A written opinion from the Alabama Attorney General is advisory, not binding, but it "shall protect such officer and the members of such board, local governing body or agency to whom it is directed or for whom the same is secured from liability to either the state, county or other municipal subdivisions of the state because of any official act or acts heretofore or hereafter performed as directed or advised in such opinion." Ala. Code § 36-15-19 (1991); Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479 (1942). As the number and results of the Attorney General opinions cited in this outline attest, the Alabama Attorney General's office has, throughout the course of several changes in administrations, consistently upheld the spirit, the letter, and the rationale of Alabama's Public Records Law.

Alabama