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Wed, 13 Oct 2021

Alabama Supreme Court Rules Law Enforcement Can Withhold Almost All Records Indefinitely
Furnished content.

Here's what you need to know about Alabama and its public records laws before we head to a depressing state Supreme Court opinion that makes everything worse:

Alabama has one of the weakest public records laws in the nation. Public bodies are not required to respond to requests from citizens and can charge exorbitant fees for producing documents. The only way to force an agency to produce a public document it refuses to release is to file a lawsuit.
As this opinion [PDF] shows, filing a lawsuit doesn't work either. Here's a summary of what the case involved, as well as its disappointing outcome, via the Montgomery Advertiser.
The Alabama Supreme Court on Friday ruled against a Mobile media outlet seeking law enforcement files related to a fatal police shooting, sparking a fervent dissent from the court's own chief justice regarding the state's public records law.The court upheld a Baldwin County ruling in the case, in which Lagniappe Mobile sued for investigative records from the Baldwin County Sheriff’s Office related to the 2017 shooting of motorist Jonathan Victor. The high court ruled the records Lagniappe sought, including dash and body camera footage from the shooting, are all exempted from open records law due to their "investigative" nature, even though the investigation in the shooting has been closed.
That's right. The court said records that merely documented what had happened -- essential to an investigation but not investigatory records as most people would define the term -- can be withheld forever simply because they were once part of an investigation. Closing an investigation does not prevent law enforcement agencies from withholding records under the investigative privilege exemption.This is, of course, an abhorrent translation of the state's public records statutes by the state's top court. It completely undermines the presumption of openness that guides public records laws, even those as terrible as Alabama's.The dissent, written by Chief Justice Tom Parker, excoriates the majority for deciding the state's laws give state law enforcement permission to withhold almost all records forever. A long discussion of the majority's misreading of the statue culminates with this succinct summary:
Putting the pieces together from the above textual and precedential analysis, I believe that the best interpretation of "related investigative material" is as follows. "[R]elated investigative material" includes only records, created by law-enforcement officers, that reflect their efforts in an investigation. It does not include records that merely document an incident or records that are merely part of a process of observation and information collection.
As Justice Parker sees it, the investigative privilege exemption cannot possibly cover the camera footage sought by the newspaper as its nothing more than recorded observation. It also shouldn't have been given blanket coverage to other records sought, like coroner's reports (which are not compiled by law enforcement officers) or communications related to the case (because not all communications would be of an investigatory nature). But the Supreme Court said everything requested could be denied under this exemption.Justice Parker says court precedent requires the court to define exemptions narrowly. Here, the court has done the opposite, expanding it to cover almost any record created, compiled, or held by a law enforcement agency.
The sweep of those pronouncements is breathtaking. In essence, all evidence in the possession of law-enforcement agencies, whether created by the agency or received from others, is now exempt from citizens' statutory right to access public records. Whatever that interpretation of the statute can be called, it cannot be called a narrow construction in favor of open records that Allen requires. [...] Under today's decision, to be exempted, a record need only be given to law-enforcement personnel and be somehow "related," no matter how tenuously, to a criminal investigation.
As Parker points out, the government officials being sued didn't even try to argue the statute provided coverage this broad. This is from the Sheriffs' brief:
To be clear, the [Sheriffs] are not asserting that [the investigative-privilege statute] provides a blanket exception for any and all materials that have been gathered by a law enforcement entity during the course of an investigation. Clearly, such a position would run afoul of this Court's instruction that the exception[] set forth in [the statute] should be narrowly construed. [Allen], 32 So. 3d at 1271.
But that's what the state's top court decided they should have: a blanket exception that denies the public access to almost every law enforcement record.Justice Parker's dissent signoff is furious:
With one sweeping stroke, today's decision spells the end of public access to law-enforcement records that are connected in any way to an investigation. Hidden now from the public eye are body-cam videos, dashcam videos, 9-1-1 recordings, and anything else that is remotely connected to a crime or even potential crime. After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act.The special concurrence's protestations do nothing to lighten this heavy shroud. Of course government agencies are free to disclose records voluntarily, but that is not the point of the Open Records Act. Like law in general, the Act exists to compel people to do what they will not do voluntarily. So the fact that some people do not need the prod of the law in no way lessens the harm of removing that prod from those who do.
As furious as it is, it does nothing to change the new status quo. Justice Parker knows this, but isn't going to let this terrible decision escape the courthouse without noting his disappointment.
I cannot sit idly by while this Court shrinks a legal right of the people of Alabama to the vanishing point. And I especially cannot do so when that shrinkage flies in the face of text and precedent.
This leaves it up to the legislature to repair the damage done by the court. But Alabama has had terrible public records laws for years so it seems unlikely state legislators are in any hurry to make them better, much less decide they know better than the state highest court on how the current laws should be interpreted or altered.

Read more here

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