How ALDOT and John Cooper are exploiting the weaknesses of the open records law

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The Alabama Public Records Law is a series of laws designed to guarantee that the public has access to the records of government bodies at all levels across the state. But just because the law exists, doesn’t mean it’s easy to navigate, or even helpful for that matter.

Alabama’s law, which can be found at statutes 36.12.40-41 and 41.13.1 – 41.13.44 of the Code of Alabama, has some glaring weaknesses that agencies have been exploiting, to hide facts from concerned Alabamians and lawmakers.

Just this year we’ve seen the law fail both reporters and a state official.

AL.com‘s Kyle Whitmire ran into problems when requesting information from Attorney General Steve Marshall‘s office. He was told his request was not public information:

“State law provides that any such records as you request are not subject to disclosure,” Marshall’s public information officer, Mike Lewis wrote. “Section 12-21-3.1-3.1(b) of the Code of Alabama states that ‘Law enforcement investigative reports and related investigative material are not public records. Law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communications protected from disclosure.’ Ala. Code SS 12-21-3.1(b) (2012).”

Meanwhile State Auditor Jim Zeigler has run into this own issues when requesting public information from the Alabama Department of Transportation (ALDOT).

In April, Zeigler sent a first letter to ALDOT Transportation Director John Cooper and ALDOT Chief Counsel William Patty requesting further information about an $87 million state-funded bridge projectin Baldwin County — which would be a second bridge to Orange Beach. Despite the fact he was elected to statewide office, his request went altogether ignored.

In July, Zeigler doubled-down on his fact-finding efforts ands sent a second letter to Cooper and Patty requesting the information, giving them a deadline to respond of August 17. Yet, as of Sept. 6, Zeigler’s heard only one thing: crickets.

Alabama Today has run it its own share of problems in dealing with ALDOT and information requests.

We first reached out to Tony Harris, spokesman for ALDOT, on May 18 with our own questions about the bridge project. He called back that afternoon and promised a response the following week. Flash-forward to May 25 then again June 12, more empty promises of information that never came. Finally on Aug. 24, after previously asking Alabama Today to avoid submitting an official public records request, he tells us that is what we have to do if we want the information. That there are issues being held up in the courts (by the way, they’ve all been resolved) and he’s unable to answer otherwise.

Which has left us scratching our heads — Alabama officials are clearly exploiting holes in the Public Records Law and giving Alabamians the run-around as they see fit.

Defining public records

The Code of Alabama takes the time to define what public records are:

As used in this article, the term “public records” shall include all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer. (Ala Code § 41.13.44)

Despite a clear definition, the law fails to set specific parameters to make the law work for the good of the people.

What the law’s lacking

  1. There is no language that states how long the state has to respond to a public records request.
  2. Fees are not stipulated by law. One department may charge one fee, while another may charge something entirely different. The Department of Corrections, for example, requires a flat $25 fee for them to begin to process a request. Meanwhile the Secretary of State’s office requires $1.00 per copied page, rather than a flat fee.
  3. Not all agencies have a clear employee in charge of requests, thus making tracking down the correct person difficult.
  4. There is no defined appeals process when a requestor does not get what they were asking for.

This is the first in a series of stories about this issue. Check back frequently for more information.

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