Public Officials: Your Records
Responsibilities and the Law
A Publication of the Alabama Department of Archives and
History
Approved by the State and Local Government Records Commissions
January 1996
Introduction
Public officials are legally obligated to create and maintain records that adequately document government business.
Government records provide evidence of agency operations and serve as a mechanism of accountability to the
citizenry. Public officials, therefore, are responsible for ensuring that their records, despite storage medium (i.e.,
paper, microfilm, magnetic tape, or digital optical disk), are usable for as long as necessary to satisfy record keeping
requirements. Good record keeping practices form part of the overall management of an organization, in addition to
satisfying official and legal obligations.
What are Records
Requirements?
These requirements are derived from state and federal law and regulations, court decisions, professional
practices, and the administrative need to document decision making. They affect the creation, maintenance,
accessibility, and disposition of all public records. Satisfaction of these records requirements ensures the legal
admissibility of agency records into court, as well as the overall accountability of the organization.
Who Is Responsible for Satisfying Records
Requirements?
Public officials are responsible for satisfying all records requirements. But who are public officials? This question
can be answered very simply. If you work for any level or organization of government, you are a public official.
According to Title 36, Chapter 12, Article I of the Code of Alabama, 1975, the term public official or public servant
includes public employees of all counties and municipalities and all persons occupying positions within state
government. Title 36, Chapter 25 adds to the definition any person who is paid in whole or in part by state, county,
or municipal funds.
What are the Records Requirements of Public
Officials?
The Code of Alabama, 1975, contains two chapters that address the government records responsibilities of public
officials and the care and handling of the records they create: Title 36, Chapter 12, and Title 41, Chapter 13.
As a public official, you are obligated to:
- create and maintain records that will provide full and detailed information regarding the
activities and business carried out in your office; (36- 12-2[1975])
- protect and preserve records from mutilation, loss, or destruction; (36-12- 2 [1975])
- transfer to your successors in office, all current records pertaining to the business, affairs or
transactions of your office; (36-12-4 [1975])
- contact the Department of Archives and History when records pertaining to the conduct of
business in your office cease to be current; (36-12-5 [1975])
- keep the books, records and accounts and make the reports of your office in accordance with
such systems procedures and forms as may be prescribed by the chief examiner of public accounts for audit purposes. (41-5-23 [1975])
Opinions of the Attorney General provide additional information about records requirements. Attorney General's
opinions are legal interpretations of the law. They serve to clarify the law for public officials but do not carry the
force of law.
Two examples of such opinions are as follows:
- Opinion Number 91-00249 states that public records must be kept in the custody of the office
where created or in a depository approved by the Local Government Records Commission.
- Opinion Number 92-00095 concludes that the tax collector is a "public officer" under the
definition of that term contained in 36- 12- 1, Code of Alabama 1975. As a public officer he is
required to maintain an accurate set of books and records in reference to the activities or
business required to be conducted by such officer. All public officers by law must turn over to
their successors all documents pertaining to the business of their offices.
What Are Public Records?
The section of the Code relating to the process of disposing of records -- and affirming the public ownership of
governmental records -- 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 held with, in or by any such court, office, or officer. (41-13-1 [1975])
The section of the code relating to access uses the term "public writing." Alabama courts have equated this term with
the term "public records" and have interpreted its definition to be equally inclusive. The courts have defended "public
writing," within the meaning of Alabama Code 36- 12-40 [1975], as 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 status and condition of such
business and activities can be known by the public."
(Stone v. Consolidated Publishing Co., 404 So. 2d 678 [Ala. 1981] and
Chambers v. Birmingham News Co., 552 So. 2d 854 [Ala. 1989] Supreme Court
of Alabama)
In The Birmingham News Company v. Mark D. Perry and Alabama Department of Public Safety in the Circuit Court for
Montgomery County, the court found that "computer tapes themselves are public writings and are therefore under the
purview of Alabama Code 36- 12-40 [1991]." It should be noted that, although this finding applies only within the
Montgomery Circuit, it will likely be considered by other courts in similar cases.
Strategy for Satisfying Requirements
Regarding the Creation
and Maintenance of Public Records
Each agency should have a strategy or plan for satisfying its records requirements. Such a plan would include the
following components:
- Ensure that each employee understands that records are an essential resource of the agency
and that each staff member has legal responsibilities to follow the proper records procedures.
- Designate a professional staff position, with appropriate responsibility and authority to
represent the head of the department, for the management of agency records.
- Maintain a reference file or notebook of all laws, rules, and regulations affecting the creation,
maintenance, use, and disposition of records of the agency; review periodically and ensure
awareness of these by appropriate staff.
- Establish a legally acceptable records management program that is implemented as a regular
element of the business of the agency.
- Work with the agency's legal counsel to ensure that prior to the destruction of records no
litigation is imminent and that the legal requirements for records retention have not altered or changed .
Access to Public Records
The primary legislative statement regarding the right of individuals to inspect and copy public records of the state is
contained in 36- 12-40 [1975], as follows:
- 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.
The Alabama open records law contains only two general exemptions from the right of citizens to inspect and copy
public writings: library circulation records and records expressly made confidential by statute. Specific statutory
requirements throughout the code may limit access to designated programmatic records, or to classes of records,
such as the records documenting adoptions.
In 1981, the Supreme Court, citing inadequate statutory guidance, pronounced its own balancing test to determine
access: "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 interest of the public
are some of the areas which may not be subject to public disclosure. Courts must balance
the interests of the citizens in knowing what their public officers are doing in the discharge of public duties against the
interests of the general public in having the business of government carried on efficiently and without undue
interference." (Stone v. Consolidated Publishing Company, 404 So. 2d 678 [Ala. 1981])
Chambers v. The Birmingham News reined the Stone decision by further adding that "there is presumption in favor of
public disclosure of public writings and records pursuant to statute; in applying limitations, judiciary must apply rule
of reason. Exceptions to presumption in favor of public disclosure of public writings and records must be strictly
construed and applied only in those cases where it is readily apparent that disclosure will result in undue harm or
embarrassment to individual, or where public interest will clearly be adversely affected, when weighed against public
policy considerations suggesting disclosure." (Chambers v. Birmingham News Company, 552 So. 2d 854 [Ala.
1989])
The Alabama open records law contains no provision with respect to whether a requester's purpose can affect the
right of access to public writings. However, in 1941, the Supreme Court held that a custodian of public writings is not
required to permit examination of writings where to do so would "unduly interfere or hinder the discharge of the
duties of such officer.'' (Holcombe v. State ex rel. Chandler, 240 Ala. 590, 597, 200 So. 739, 746 [1941])
Attorney General's Opinions and Access to Public Records
Public officials have frequently requested opinions from the Attorney General regarding access to public records.
Below is an example.
- Opinion Number 88-00047 states "that documents maintained in the office of the Tax
Assessor constitute public records to which the public has a right of inspection . . . the tax
assessor may enforce reasonable rules and restrictions on that access, including the charging of
a reasonable fee for providing copies of said records. The reasoning applicable to
documentary records of your office also applies to information provided by your office through
the use of computers."
It should be noted here that the state of Alabama has no privacy act and that the federal privacy laws do not apply to
the public records of the state of Alabama, except to those records created with the support of federal funds and
governed by specific federal mandates.
Strategy for Satisfying Requirements
Regarding Access to Public Records
Components of a strategy satisfying the requirement to provide access to public records would include:
- Develop written procedures and a schedule of charges regarding access to records by the public.
- Ensure that all agency staff are familiar with and comply with these procedures.
Disposal of Public Records
A public official is responsible for the proper disposal of records that are inactive and no longer needed, such as
selected financial records after the successful completion of an audit. There are specific requirements that should
be met prior to the disposal of these records, as provided by the State and Local Government Records
Commissions. (Alabama Code 41 13 [ 1975])
Strategy for Satisfying Requirements
Regarding the Disposal of Public Records
Strategies for satisfying these records disposal requirements include:
- Acquire the written approval of key individuals in the agency before the disposal of records
- Implement Commission-approved disposition authority on a regular basis. The destruction of
records should be a planned activity and occur as part of the agency's regular course of
business. The haphazard or selective destruction of certain records and not other eligible
records may raise suspicion concerning the reliability and authenticity of the agency's record
keeping system.
Failure to Comply with Record Keeping Requirements
All public officials should be aware of the consequences that could occur in the event of a failure to comply with legal
requirements affecting the management of public records. Without the appropriate records, an agency can be fined or
penalized, lose rights, or experience adverse judgments or administrative decisions.
When an agency fails to maintain appropriate records, cannot find them, or fails to properly destroy them, the entire
agency loses. If, for example, the agency does not have the records to prove that Company A owes it a sum of money,
then it will be difficult and probably impossible to win a lawsuit compelling Company A to pay. In addition, many
government regulations require proof that certain actions have been performed or conditions of an agreement met.
The lack of supporting documentation leaves the agency vulnerable in the case of audit or litigation .
Destruction or Tampering with Government Records
Alabama Code 1 3A- 10 12 [ 1975] designates tampering with government records a Class A misdemeanor
punishable by up to one year in jail. Chapter 1 3A provides three examples of tampering:
A person commits the crime of tampering with governmental records if:
- He knowingly makes a false entry in or falsely alters any governmental record;
- Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes
or otherwise substantially impairs the verity or availability of any governmental record; or
- Knowing he lacks the authority to retain a governmental record he refuses to deliver up the
record in his possession upon proper request of a person lawfully entitled to receive such
record for examination or other purposes.
The law holds the public official responsible for the deliberate destruction of records when litigation, investigation, or
audit is imminent. Alabama Code Title 36 Chapter 12 provides a corrective mechanism for any person who refuses
or neglects after demand to deliver documents as required in 36 12 20.
- His successor may make a complaint to the judge of the circuit court or the judge of the
probate court of the county in which the person refusing resides. (36 12-21)
- If the former public official does not deliver to his successor all such documents, he may be
committed to the county jail until such time as he delivers the records. (36- 12 23)
- A search warrant may be issued to search for and seize such documents. (36 12 24)
Who Can Help?
A public official should first seek advice regarding the creation, retention, use, and disposition of government
records from the agency's legal counsel, the agency information systems manager, and the agency
archivist/records manager.
The Government Records Division of the Department of Archives and History (ADAH) is also available for assistance.
The division serves as the support staff for the State and Local Government Records Commissions. State and local
officials seeking assistance with policies, standards, and procedures related to government records can contact
ADAH staff at (334) 242-4452.
The Office of the Attorney General, Opinion and Agencies Division, can also assist in the solution of legal
questions regarding the records maintained in an official's office.
|
