Whitmire: Kay Iveyâs open records promise was a poisoned apple
This is an opinion column.
When Gov. Kay Ivey took action earlier this year on Alabama’s public records law, there was, among the folks I run with, a flicker of hope. My heart jumped a little, too.
The governor issued an executive order limiting what state agencies could charge for copies of public records and seemingly setting a time limit for responses. It seemed like a big deal. Only it wasn’t what it appeared to be.
Those italics are there to tell you that the whole deal was a poisoned apple. All trick and no treat.
We should have known better. I should have known better. Anything nice I might have said then? I take it all back.
Before I get to how Kay pulled a fast one, it’s worth understanding just how bad Alabama’s open records law is.
In a purely technical sense, Alabama has an open records law. That law says public records belong to Alabama citizens and that public officials are to make those records available to citizens — not just media or lawyers, but everybody — upon request.
That might sound definitive, and once upon a time, perhaps it was. But after decades of erosion, the law doesn’t work that way, for a couple of reasons.
First, the law and the legal precedents that followed it, said public officials may charge a reasonable price to cover the costs of copies, which state and local government agencies have interpreted as “as much as they want” or “more than most folks can pay.”
Alabama law also says government officials must respond within a reasonable amount of time.
To too many public officials, reasonable time means never.
It’s here the real problem in the law emerges. When you’re ignored or told no, you have a right to hire a lawyer and sue. But that’s going to cost you legal fees, which these days can start at $200 an hour. And it could take years. And it could make things worse, as the judge might find those records shouldn’t be public anyway, as just happened with all police investigative records.
In 2019, one business did sue the state for public records. It won. And when it was over, that business had racked up $70,000 in legal fees.
In cases like that, the court can demand the state pay the costs — if the plaintiff wins, and that’s a big if — but the court can just as easily stick them with the bill. Even if the court does award legal fees, guess who gets to pay that? Taxpayers.
In national rankings, Alabama routinely lands near or at the bottom. We’re used to being last, I suppose, but this might be the most important crumby ranking of all. Because public documents are the ammunition for public accountability. Those records are the window through which we can see how officials spend their time and our money. Without a better open records law, there’s not much hope of improving Alabama’s standing in other national rankings.
State Sen. Arthur Orr, R-Decatur, has been pushing for a better open records law for several years. This year, he narrowed his focus to one issue — a ticking clock. RIght now there is no timeline for responding to a records request.
But before the session started, Ivey came forward with her executive order. In it, Ivey set what appears to be hard deadlines for responses to requests.
Only, it doesn’t.
In reality, Ivey’s order says that state agencies must respond within 45 days or ask for another 45 days.
“Ask” might not be the right word, of course. “Ask” implies there’s an option for you to say, “No, I want my documents now.” The order gives citizens no such right.
Instead, it allows state agencies to rinse and repeat forever.
And it provides no mechanism for enforcement but to sue (see above).
The first clue that Ivey’s executive order was a ruse came quickly. Not two weeks after Ivey signed that paper, a south Alabama construction company had to sue Ivey’s transportation director, John Cooper. The company had asked for emails and text messages between Cooper and Ivey. They refused to turn those over.
But Ivey showed her true intentions later when Alabama lawmakers attempted a better fix to Alabama’s law.
This year, Orr and his co-sponsor in the House, state Rep. Cynthia Almond, R-Tuscaloosa, tried to set a real deadline with the bill.
It died on the last day of the session — because Ivey’s office sent word to lawmakers that she’d kill it.
The governor’s office confirmed this to the Alabama Reflector and said Ivey’s executive order had made “meaningful progress already.”
In other words, what Ivey has done is good enough.
Except it isn’t. Ivey’s order changed little. To the contrary, it has now preserved the status quo indefinitely.
Again, I should have known better. If Kay Ivey gives you a candy apple, check it for a razor blade or you’re gonna get cut.
Now excuse me for a minute while I spit the blood out of my mouth.
More columns by Kyle Whitmire
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The moment Alabama’s lawyers turned a sure thing into blistering defeat
Alabama state Rep. John Rogers has been the feds’ target for 35 years. He isn’t afraid.