Access to Open Records and Electronic Media

Imagine that you are a journalist producing online content for ESPN at ESPN’s headquarters in Bristol, Connecticut. Your editor assigns you to cover the return of the Auburn Tigers to the top echelons of college football and how the Alabama Crimson Tide, one of the perennial powers of the sport, returned to the College Football Playoff under controversial circumstances.

Since Alabama and Auburn are both public universities, you want to access some of their records via an open records request in order to obtain background information on the two programs. However, the state denies your request but grants the requests of an in-state media outlet, despite the fact that the requests are identical to one another.

That’s because the Code of Alabama provides that “[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.” This means that entities based in other jurisdictions like ESPN, CNN, or The New York Times cannot access Alabama public records unless one of their journalists is an Alabama citizen. In contrast, in-state media outlets like Al.com can assess the information and post stories about how much Alabama teachers are paid on average by school district and ratings for inspected restaurants in Mobile over a certain period of time.

This difference becomes ironic when one considers that Alabama caselaw is favorable towards media outlets accessing public records for whatever purpose they desire. Stone v. Consolidated Pub. Co. defines a public writing as “such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens” and described the media as “clearly appropriate vehicles by which citizens can learn about the activities and business conducted by our public officers.” Walsh v. Barnes states that “[t]here is no exception under § 36-12-40 disallowing one to inspect or copy public writings simply because one desires to use such for personal gain.” The Alabama Supreme Court in Ex parte Perch indicated that “a requester is not required to demonstrate good cause before he or she is entitled to inspect public writings.” Overall, Alabama is permissive towards media outlets acquiring information “about the activities and business conducted by our public officers” so long as those media outlets are located in the Yellowhammer State.

Unfortunately, Alabama isn’t alone in regards to this discrepancy. Virginia, Tennessee, New Jersey, and several other states have enacted similar provisions restricting public records access to the citizens of their respective states. This practice has been upheld by the Supreme Court in McBurney v. Young, where the court held that Virginia’s citizenship requirement for its open records law did not violate the Privileges and Immunities Clause of the Constitution.

This records access distinction based on location should not continue, especially in an age where one can use email, Skype and other technologies to report the news from anywhere with an internet connection. The coverage of events shaping the landscape of politics, sports, or any other field should not be hindered because media outlets or journalists are not geographically located in certain jurisdictions. To be sure, out-of-state media outlets are unlikely to be interested in Mobile County restaurant records. However, state records can assist in the reporting of stories of national importance, such as the Alabama Senate and Virginia gubernatorial elections. Limited access to such records provides unfair advantages to in-state media outlets and impedes public discourse on the issues of the day.

 

Note: This post has been updated to reflect that, since writing, Alabama has earned a playoff berth.

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