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Stone v. Consolidated Pub. Co.

Supreme Court of Alabama
Oct 2, 1981
404 So. 2d 678 (Ala. 1981)

Summary

recognizing exceptions to the broad general definition of "public writing"

Summary of this case from Craig v. Selma City School Bd.

Opinion

80-211.

October 2, 1981.

Appeal from the Circuit Court, Calhoun County, Malcolm B Street, Jr., J.

Walter J. Merrill of Merrill, Porch, Doster Dillon, Anniston, for appellants

James L. Klinefelter of Burnham, Klinefelter, Halsey Love, Anniston, and James C. Barton and Gilbert E. Johnston, Jr. of Johnston, Barton, Proctor, Swedlaw Naff, Birmingham, for appellee

David M. Olive for McMillan Spratling, Birmingham, for amicus curiae Alabama Press Association


Consolidated Publishing Company, the publisher of The Anniston Star and appellee herein, filed a complaint against the appellants, Ernest Stone, Charles C. Rowe and Jack Hopper, in their respective capacities as officers of Jacksonville State University and as officers and directors of J.S.U Reserve Public Relations Corporation (the Corporation), to permanently enjoin appellants from denying appellee access to records regarding the "finances" of Jacksonville State University and J.S.U. Reserve Public Relations Corporation Both appellee and appellants filed motions for summary judgment. The motions for summary judgment were based upon the pleadings, affidavits, depositions and other documents on file in the trial court. The trial court granted appellee a summary judgment which enjoined appellants from denying appellee access to such records and further ordered the appellants to permit the inspection and copying of the financial records of Jacksonville State University and the records of J.S.U. Reserve Public Relations Corporation. Appellants seek to reverse the summary judgment on appeal

By letter dated May 15, 1978, appellee made written demand on appellants to be allowed to inspect and take copies of records dealing with the fund maintained by J.S.U. Reserve Public Relations Corporation. Subsequently, an employee of appellee made several personal contacts with appellant Rowe, seeking information for an article the employee planned to write on the financial status of the University. Rowe told her at the time that he did not have all the information requested, and that he would have to do some "digging." Rowe was to get back in touch with the employee. However, when Rowe failed to make this contact, the employee returned to his office. Although appellee requested access to university books and other materials which were available to auditors, Rowe finally agreed to make available only the auditor's report. Further interviews, and contact with Ernest Stone, President of Jacksonville State University, proved unsuccessful in obtaining access to these records. It is apparent that appellee's interest had focused on the finances of the J.S.U. Reserve Public Relations Corporation, incorporated to "promote the public relations of Jacksonville State University." This Corporation is funded through alumni contributions and proceeds of vending machines located in non-dormitory areas of the Jacksonville State University campus, and it expends money for press relations, legislative relations, and entertainment

Appellee's claim is based upon Code 1975, § 36-12-40, the First Amendment to the United States Constitution, and Article 1, § 4, of the Alabama Constitution of 1901. We do not deem it necessary to address the constitutional provisions. Code 1975, § 36-12-40, provides:

Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute

Appellants contend that appellee is entitled to copy and inspect only such public records as are required by law to be kept by public officials. Code 1975, § 41-13-1. Appellants concede that the financial records of the University are public writings within the purview of Code 1975, § 36-12-40, but contend that the records of J.S.U. Reserve Public Relations Corporation are not public records because no law requires the keeping of such records. The trial court found the Corporation to be the alter ego of the University. Appellants make no issue as to this finding. Accordingly, for the purposes of this appeal, we must treat J.S.U. Reserve Public Relations Corporation as the alter ego of the University. Appellants are officers of the University as well as the officers and directors of the Corporation. Appellants were the original and sole incorporators of the Corporation, which was formed for educational purposes to promote the public relations of Jacksonville State University, and to receive and disburse funds and assets therefor

While it is interesting to note that the statute relied upon by appellee (Code 1975, § 36-12-40) uses the term "public writing," while the statute appellants cite (Code 1975, § 41-13-1) defines the term "public records," we doubt the Legislature intended to make a distinction between a "public writing" and a "public record." It is clear that § 36-12-40 first appeared in the 1923 Code, and § 41-13-1 was enacted into law in 1945 in an act regulating the retention and disposal of public records generally

In summary, appellants principally rely on the authority of Holcombe v. State, 240 Ala. 590, 200 So. 739 (1941), in which the Court held:

At the risk of repetition and to avoid uncertainty, we conclude by saying this court holds: (1) that the public generally have the right of a reasonable and free examination of public records required by law to be kept by public officials, except in instances where the purpose is purely speculative or from idle curiosity, or such as to unduly interfere or hinder the discharge of the duties of such officer

240 Ala. at 597, 200 So. at 746. In that case, however, this Court held that the records in question were required by law to be kept. Accordingly, Holcombe cannot be considered as conclusive authority for the proposition that a record which is not required by law to be kept is not a "public writing" or a "public record" and therefore not subject to the right of a citizen to inspect and copy. While some courts have adopted the view espoused by appellants, see, e.g., Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833 (1967), the Superior Court of New Jersey, Appellate Division, construing statutes similar to our § 36-12-40 and § 41-13-1, held:

The Commissioner's conclusion that since local boards are not required to administer comprehensive achievement tests the results thereof are not public records is unsound. The fact that something need not be done does not mean that if it is done the report thereof is not a public record

Citizens for Better Education v. Board of Education of Camden, 124 N.J. Super. 523, 528, 308 A.2d 35, 37 (1973). See also, Dayton Newspapers, Inc. v. City of Dayton, 45 Ohio St.2d 107, 341 N.E.2d 576 (1976); and Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976). As defined in Code 1975, § 41-13-1, a public record includes "all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law" by public officers in the transaction of public business

Code 1975, § 36-12-2, provides in part:

All public officers . . . shall correctly make and accurately keep . . . all such books or sets of books, documents, files, papers, letters and copies of letters as at all times shall afford full and detailed information in reference to the activities or business required to be done or carried on by such officer . . . and from which the actual status and condition of such activities and business can be ascertained without extraneous information. . . (Acts 1915, No. 237, p. 287; Code 1923, § 2690; Code 1940, T. 41, § 139.)

We have carefully considered the issue raised by appellants on this appeal, particularly with reference to our statutes Construing these statutes in pari materia, we hold that the "public writing" spoken of in Code 1975, § 36-12-40, is 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. The news media are clearly appropriate vehicles by which citizens can learn about the activities and business conducted by our public officers This is not to say, however, that any time a public official keeps a record, though not required by law, it falls within the purview of § 36-12-40. McMahan v. Trustees of the University of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). It would be helpful for the legislative department to provide the limitations by statute as some states have done. Absent legislative action, however, the judiciary must apply the rule of reason. State v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977) Recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure. Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961)

While appellee made a sufficient demand upon all of the appellants by its letter of May 15, 1978, to inspect and take copies of the records dealing with the funds of the Corporation, and appellants have not denied that they refused to allow the inspection and copying of such records, we must consider the summary judgment aspect of this case in light of our holding with respect to the issue of what constitutes a public writing under Code 1975, §§ 36-12-2, 36-12-40, and 41-13-1. Under our law, summary judgment is to be granted only where there is no genuine issue as to a material fact and the moving party is entitled to a judgment as a matter of law Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala 1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala. 1978); Whitehead v. Davison Oil Co., 352 So.2d 1339 (Ala. 1977). Nevertheless, the trial court in granting summary judgment could not have considered the character of the records in question because this Court has not heretofore addressed the issue. This Court has not seen the records for which demand was made to inspect and copy. Therefore, the trial court should determine if these records are 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. Accordingly, this case is reversed and remanded to the trial court for a judgment consistent with the pronouncement as to the law in this opinion

REVERSED AND REMANDED WITH DIRECTIONS

TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur

BEATTY, J., dissents


Summaries of

Stone v. Consolidated Pub. Co.

Supreme Court of Alabama
Oct 2, 1981
404 So. 2d 678 (Ala. 1981)

recognizing exceptions to the broad general definition of "public writing"

Summary of this case from Craig v. Selma City School Bd.

explaining that " ‘the public generally have the right of a reasonable and free examination of public records required by law to be kept by public officials, except in instances where the purpose is purely speculative or from idle curiosity, or such as to unduly interfere or hinder the discharge of the duties of such officer’ " (quoting Holcombe v. State, 240 Ala. 590, 597, 200 So. 739, 746 (1941) )

Summary of this case from Health Care Auth. for Baptist Health v. Cent. Ala. Radiation Oncology, LLC

explaining that "[c]ourts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference"

Summary of this case from Health Care Auth. for Baptist Health v. Cent. Ala. Radiation Oncology, LLC

In Consolidated Publishing, this Court held that because the water works and sewer board, a public corporation, had the qualities of an agency of the City, for the purposes of the Open Records Act its employees are "public officers" of the City and are subject to the Open Records Act. Consolidated Publishing sued the water works board and its records custodian to force the water works board to allow it access to certain of the board's records pursuant to the Open Records Act.

Summary of this case from Tennessee Valley v. Health Care Authority

In Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala. 1981), this Court provided in reference to the Open Records Act the following definition of a "public writing": a record " 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."

Summary of this case from Tennessee Valley v. Health Care Authority

In Stone, 404 So.2d at 681, we defined 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 [the] citizens."

Summary of this case from Tennessee Valley v. Health Care Authority

In Stone, this Court stated: "Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of the government carried on efficiently and without undue interference."

Summary of this case from Allen v. Barksdale

In Stone, we also stated that some records kept by public officials may not be within the purview of § 36-12-40, including: "[1] [recorded information received by a public officer in confidence, [2] sensitive personnel records, [3] pending criminal investigations, and [4] records the disclosure of which would be detrimental to the best interests of the public.

Summary of this case from Allen v. Barksdale

In Stone v. Consolidated Publishing Co., 404 So.2d 678, 680 (Ala. 1981), this Court rejected the argument that § 36-12-40 applies only to "such public records as are required by law to be kept by public officials.

Summary of this case from Birmingham News Co. v. Muse

interpreting a "public writing" to be "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"

Summary of this case from Holland v. Eads

In Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala. 1981), this Court articulated a rule requiring courts to "balance the interest of the citizens in knowing what their public officers are doing... against the interest of the general public in having the business of government carried on efficiently and without undue interference."

Summary of this case from Blankenship v. City of Hoover

In Stone, supra, we held that a "public writing," as encompassed by § 36-12-40, is a record " reasonably necessary to record" the required business and activities of a public officer "so that the status and condition of such business and activities can be known by our citizens," and we recognized that the news media are "clearly appropriate vehicles" through which the citizens of this state can be informed of the business and activities of the public officials.

Summary of this case from Chambers v. Birmingham News Co.

interpreting a `public writing' to be `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'

Summary of this case from Lockhart v. State

interpreting a 'public writing' to be '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'

Summary of this case from Lockhart v. State

interpreting a ‘public writing’ to be ‘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'

Summary of this case from Schillaci v. Gentry (Ex parte Gentry)

interpreting a `public writing' to be `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'

Summary of this case from State v. Martin

In Stone v. Consolidated Publishing Co., 404 So.2d 678 (Ala. 1981). the Alabama Supreme Court determined that the phrase "public writing," as used in the Open Records Act, means "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."

Summary of this case from Graham v. Alabama State Empy. Assoc

In Stone v. Consolidated Publishing Co., 404 So.2d 678 (Ala. 1981), our supreme court utilized the rule of reason in establishing the appropriate limitations to § 36-12-40, Code 1975.

Summary of this case from Munger v. State Bd. Reg. Architects

In Stone, our supreme court held that "the 'public writing' spoken of in § 36-12-40, Code 1975, is 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."

Summary of this case from Munger v. State Bd. Reg. Architects

In Stone, the supreme court also made clear that some records kept by public officials may not be within the purview of § 36-12-40.

Summary of this case from Walsh v. Barnes
Case details for

Stone v. Consolidated Pub. Co.

Case Details

Full title:Ernest STONE, Charles C. Rowe and Jack Hopper v. CONSOLIDATED PUBLISHING…

Court:Supreme Court of Alabama

Date published: Oct 2, 1981

Citations

404 So. 2d 678 (Ala. 1981)

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