Sometimes, media have to remind government who it works for (that’s you)

Imagine giving some money to an investment broker and when you later ask what the broker did with it, you’re told it’s none of your business. I see no difference between that and what agencies of state and local governments in Alabama do whenever they reject or ignore a citizen’s request for government records.

This happens too often in Alabama and elsewhere:

• In June, the City of Decatur denied open-records requests by multiple media outlets for disciplinary records of a police officer involved in a physical assault of a storeowner.

• In May, the environmental advocacy group GASP and the Environmental Defense Alliance filed a lawsuit against three State of Alabama agencies that have denied access to emails involving state opposition to a federal environmental cleanup of a North Birmingham neighborhood.

• Last year, the state Attorney General’s Office (one of the agencies sued by GASP) rejected a request by an Alabama Media Group reporter to see a contract signed with an industrial safety expert as part of a new plan to allow death-penalty executions by nitrogen gas.

• In 2017, WBRC-TV asked to see the $2.6 million contract between the City of Birmingham and a company called ShotSpotter that detects gunshots and pinpoints their location. The station also asked for data compiled by ShotSpotter. Three years later, the city still has not provided the data or even the contract.

• You’d think that in a pandemic, when smart behavior depends on having full and accurate information, that there’d be no secrets. But you’d be wrong, as shown by the Alabama Department of Public Health’s refusal of an AMG request to identify individual state-licensed nursing homes that have reported coronavirus cases.

In each of these cases, there is a legitimate public interest. And in each of these cases, the reason cited for rejection was an incorrect interpretation of Alabama’s open-records law. For more examples of valid records requests that were denied or ignored, read this alarming commentary written in July 2019 by WBRC News Director Shannon Isbell.

Government should be an open book. The access rights of the public spring from the public tax money that supports government, from the implicit pact made between voters and successful candidates during election campaigns, and from the open-records and open-meetings laws of every state.

Which brings up a big honkin’ problem in Alabama. Our open-records law is terrible.  It mandates that citizens can see all public writings – printed or electronic – unless a specific law says otherwise. So far, so good. The fatal flaws are these: no specified time period by which a government agency must respond to a records request; no appeal process (other than a court of law) if an agency turns down a request; and no clear definition of reasonable copying costs. So, governments in Alabama can quash the public’s rights by perpetual delay, or with outlandish fees, or by groundlessly denying a request knowing the requester probably doesn’t have the money to go to court.

Several members of the state media have said publicly that Alabama’s law is the nation’s worst. Some research says they’re right. University of Arizona professor David Cuillier examined open-records data from 2014 to 2017. The lowest compliance rate in the nation – at a ghastly 10 percent – belonged to Alabama.

A bill sponsored by Sen. Cam Ward of Alabaster and Rep. Chris Pringle of Mobile to fix the problems with the state’s law regrettably died in a legislative committee in February. The main opposition? Local governments, which claimed compliance with a stronger law would impose too much burden on the small staffs of some cities and counties. No one ever explained how other states manage to do it. And I’d like to note you’d never hear a small police or fire department claim that responding to the public is sometimes just too burdensome to do. 

All of this matters not merely because of concepts of ideal government. There are tangible consequences. Research such as Cuillier’s has shown that less openness correlates with more waste and fraud. So, what can be done to try to achieve greater access to records in Alabama or anywhere?

Journalists know the fundamentals: how to write an effective request; to continue to apply pressure; and to write publicly about rejections. They also know to push editorially and in person for better legislation, ideally with the support of vocal citizens. This is especially critical in Alabama.

Kyle Whitmire, state political columnist for the Alabama Media Group, says comparisons to other states show the “absurdity” of Alabama’s law. Whitmire has written valiantly about the situation. “The more we talk about this, the more likely we are to get a better law … We have to show why we need it,” he said in an interview.

He knows why. “Whenever public officials deny a records request, they automatically show people they’re hiding something.”

security camera video of a police assault on a decatur storeowner in june. the city is withholding officer disciplinary records and other records related to the incident.

I’d like to see news organizations pursue cases in court more often. This expensive tactic has fallen off significantly in recent years in Alabama and everywhere as news companies flounder financially. Increasingly, freedom-of-information lawsuits are brought by advocacy groups, such as GASP, rather than by media. Such suits are worthy no matter who launches them, but depending on single-issue advocacy groups likely means fewer suits than if media were regularly initiating actions on multiple fronts.

Dennis R. Bailey, general counsel for the Alabama Press Association, points to a hopeful sign: an increase in collaborative litigation among state media, which lowers cost for each outlet. In 2015, for instance, the APA represented multiple outlets in suing for release of Gov. Robert Bentley’s divorce records. In 2018, the Alabama Media Group, the Montgomery Advertiser and the Associated Press filed an eventually successful case against the Alabama Department of Corrections for release of the department’s execution protocol.

Going to court can be risky, of course, as there’s always the chance of ending up not just with a loss, but also with a precedent that makes access worse. Whitmire believes court often is “home-field advantage” for governments. But a demonstrated resolve to litigate would send statewide notice that the media are serious about their records requests, especially if they could persuade a judge or two to make offending governments pay the media’s attorney fees.

A new records law supported by selective but determined litigation would change the freedom-of-information climate in this state. Open government is essential to accountability, which is essential to good governance. It is highly insufficient to claim accountability can wait until the next election. Accountability needs to be constant, no matter how uncomfortable that makes some government officials. They need to remember it’s part of the deal. And the public, with help from the media, needs to insist on it. Because secrecy is the safe harbor of incompetence and corruption.