Alabama’s highest court is poised to make a ruling that could “set straight” the state’s authority on executive privilege, and one that could establish how much power governors will have in keeping public documents secretive.

Alabama Gov. Kay Ivey’s office argues there is “substantial public interest” in permitting the state’s executive branch to deliberate in “frank” talks, and that the state’s governor should be granted the same authority given to U.S. Presidents to keep information from public viewing.

Taxpayers will also pay for the governor’s legal bill.

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Attorneys representing two of the state’s leading press groups worry that granting executive privileges, not spelled out in Alabama law, will block future public records requests.

“The result will be more secrecy and less information about the deliberative process,” wrote J. Evans Bailey, an attorney representing the Alabama Press and Broadcast associations.

The high stakes legal battle before the Alabama Supreme Court focuses on whether text messages and other communications between Alabama Department of Transportation Director John Cooper and past and current chiefs of staff under Ivey should be withheld from public release.

“The public has a right to know the true reasons behind government decisions, as do private parties who are directly affected by those decisions, said Neal Belitsky, CEO with the Baldwin County Bridge Company (BCBC) that sued Cooper last year and is pursuing documents from the state agency.

‘Frank’ deliberations

The communications, BCBC alleges, are part of a decision-making process by Cooper over his move last year to reward a $52 million contract to build a new bridge over the Intercoastal Waterway in Gulf Shores.

BCBC owns a nearby toll bridge and opposes the Gulf Shores bridge, arguing it’s unneeded. The legal team behind Cooper, who has the authority to determine the fate of a bridge project, calls BCBC’s case “frivolous” and one that should not require the state’s executive branch to turn over text messages.

“The state’s interest in protecting the frank deliberations of the governor and her cabinet outweighs the need BCBC has to prosecute a frivolous lawsuit,” wrote Ed Haden, an attorney representing Cooper, in a legal filing submitted Thursday.

Executive or deliberative privilege is the same legal process often granted to U.S. Presidents to keep information from the courts, Congress, and the public to protect the confidentiality of the office and its decision-making processes.

Alabama does not have a state law granting executive privilege to a governor. But in recent years, governors elsewhere have sought and received executive or deliberative process privilege to withhold public records. State supreme courts have backed their governors in Washington and Oklahoma. Michigan exempts the governor’s office from public records laws.

The Alabama case is occurring almost simultaneously as a case in Florida in which Republican Gov. Ron DeSantis, eying a run for president in 2024, was granted executive privilege rights by a judge to withhold communications he claims to have had with “legal conservative heavyweights” over selecting nominees for the Florida Supreme Court.

Legal bill

In Alabama, taxpayers are footing the legal bills for Ivey to argue in support of granting her administration executive privilege. The Legislature’s Contract Review Committee, attended by only two of its 10 members Thursday, OK’d a $50,000 contract at $195-per-hour with John Neiman Jr. of Maynard Cooper & Gale. Neiman is representing the governor’s office before the Supreme Court.

An Ivey spokesperson said the governor’s position was stated in the “right way and the most transparent way – in court.”

“We have attorneys that represent (the legislature) in these cases when we’re asked for confidential correspondence,” said state Rep. Chris Pringle, R-Mobile, one of the two members on the committee. The committee is not required to have a quorum of its members to hold a meeting.

“Every department has it,” Pringle said. “It’s no different than any other department.”

State Senator Chris Elliott, R-Daphne, a committee member who was unable to attend the hearing, said he has concerns with the expenses, paid for by taxpayers, to defend the governor’s office in withholding communications over a bridge project within his Senate district.

“We need to see what the Supreme Court has to say,” Elliott said. “This claim will be expensive to taxpayers.”

‘Scant’ case law

Elliott, like the media associations, said he is unaware of Alabama state law or a previous court case that extends privilege to the governor’s office to withhold public information.

A Montgomery County Circuit Judge, in late January, ordered Cooper to ‘immediately produce all documents” withheld during the discovery process in the lower court case. The judge’s order cited what he said is “scant case law” that exists in Alabama addressing executive or deliberative process privilege.

“The claim of executive privilege is just that, it’s a claim,” Elliott said. “I am not aware of any executive privilege that exists.”

Bailey, in his filing on behalf of the media associations, argues the Alabama Constitution, its statutes and case law “do not provide for the broad executive or deliberative process privilege over executive official communication.”

“The (Open Records Act), the (Open Meetings Act) and the state’s long history of transparency stand for the proposition the deliberative process should be open instead of privileged,” Bailey wrote.

The governor’s legal team, led by Harold Bloom III, argues that three past cases involving executive privilege requests in Alabama “contributed to the confusing state of executive-privilege law in Alabama.” Those cases, unrelated to an ALDOT contract decision, occurred in 1978, and the early 1990s.

‘Supreme’ power

Bloom argues the Supreme Court should clear up how executive privilege should apply. He said the governor and the U.S. President have similar executive functions, and that Ivey should be granted executive privilege as the chief executive of Alabama who, according to the State Constitution, exhibits “supreme executive power.”

The governor’s brief compares the governor’s job functions with the U.S. President: Prepares a budget, appoints agency heads, oversees the state’s responses to emergencies, and must act on each bill that passes through the legislature.

“The similarities between the President and the Governor do not end there,” Bloom’s filing states. “Like their presidential counterparts, ‘the candor of (gubernatorial) aides and functionaries would be impaired if they were persistently worried that their advice and deliberations were later to be made public.’”

The governor’s involvement in the lawsuit comes after she signed in January an executive order for state agencies to respond to requests for public records. Her spokesperson, Gina Maiola, said last month while the governor wants to make the request process timely and fees for public records more reasonable, she also acknowledges there has to be a “balance for an efficiently run government.”

Bailey said if the Supreme Court allows Cooper to withhold the information related to the coastal bridge project, it should be a limited decision. He worries that allowing Cooper to “hide communications” over the bridge decision will “only make it more difficult for the public to acquire information about how the government works.”

Reporter Mike Cason contributed to this report.