Open government: $200

Today's disturbing news comes to us from loyal reader Don S., who shares with us his experience in requesting a copy of the Alabama Supreme Court's decision to stay the State Board of Education's double-dipping ban:

Someone asked me if I knew how the individual members of the Alabama Supreme Court voted on this ruling, so I went to the Supreme Court web site and searched the site, including the "Court Opinions" link, which told me to visit Alalinc to see the opinions rendered by our justices. When I went there, I was told that in order to read the opinions reached by the Alabama Supreme Court (which is paid for by all Alabama taxpayers, and thus, its opinions should be a matter of public record available to any Alabamian), I would be required to pay $200 per year in order to see how OUR public servants on OUR Supreme Court voted.

Yes, that's right: To read how the Supreme Court justices voted on this -- and any other -- issue and their reasoning for doing so, you'll need to fork over a couple of Franklins.

But wait! It's actually a bargain, the folks at Alalinc tell us! In exchange for your hard-earned $200, you can have access to Supreme Court documents for ONE FULL YEAR!!

"That's less than $17 per month!" Alalinc gleefully gushes.

I know what you're thinking. A $200 fee to see public records? Doesn't that fly in the face of the whole idea, the entire theory behind open government?

Well, yes -- yes, it does!

Just for the sake of comparison, let’s see what our neighbor states do with their Supreme Court records. I looked it up for you!

In Florida, the Clerk of the Supreme Court “releases weekly opinions at approximately 11 a.m. each Thursday. The Court makes every effort to post them to the web site as soon as possible thereafter,” although “there may be times when opinions are released outside of this schedule.” Opinions dating back to 1999 are available in their entirety online; users can even choose their preferred viewing format, whether ZIP, EXE or PDF. In addition, the Court has a specific person designated to help with records requests. There is no fee for access to online records.

Georgia’s Supreme Court provides PDF versions of the its opinions on the Court’s web site. In addition, the Court also provides “Summaries for Noteworthy Opinions,” a roundup of sorts for the decisions of the day, and provides contact information for the Reporter of Decisions. There is no fee for access to online records.

In Tennessee, court officials provide a “Today’s Opinions” link that provides documents for all decisions from throughout the state’s appellate court system on a daily basis. Citizens can isolate Supreme Court decisions, going back to 2006, by using a drop-down menu on the front page. In addition to linking to the full opinion, the Supreme Court cases are accompanied by summaries (latest set of decisions and documents here). There is no fee for access to online records.

On its web site, Mississippi’s Supreme Court provides a database, searchable by year and party last name, going back to 1996. In addition, the Court also makes available on its web site oral argument webcasts, a docket calendar, the general docket, decisions and a decisions-search tool that boasts three types of queries. There is no fee for access to online records.

See a pattern here? None of Alabama’s neighbor states charge for access to Supreme Court decisions, and they are all available in their entirety online.

Regarding Alabama's Alalinc, perhaps Don said it best:

This situation is ridiculous, possibly unconstitutional, and certainly not in the interest of having transparency in government.

So what about Alabama’s public records laws? Let’s review:

Section 41-13-1 of the Code of Alabama defines “public records” as:

“all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer.”

Supreme Court decisions, obviously, fall into this category.

In addition, according to Section 36-12-41: “Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor.”

So fees are fair game.

According to the Open Government Guide, an excellent, state-by-state database on public records maintained by the Reporters Committee for Freedom of the Press:

The Alabama Public Records Law includes no schedule or level of fees for the copying of public records without certification; therefore, the custodian in question is at liberty to fix a reasonable fee to be charged, unless the fee is set by statute or rule … One recent Alabama Attorney General opinion states the following policy regarding fees: "If possible, a public agency should provide free copies of public records. However, if budgetary constraints prevent this, then a public agency may charge a nominal fee, if necessary, to cover its costs in providing copies of public records. One may inspect public records without paying a fee unless a substantial amount of an employee's time is required" … Any fee charged must be a reasonable one (I.D.1.).

OK. But what constitutes a “reasonable fee?”

According to the Open Government Guide: