Open records policies leave residents facing costly choice
Dana Holladay-Hollifield has worked as a nurse in Alabama for years, but never was her pay as low as it was at Huntsville Hospital.
She wondered what executives at the not-for-profit facility were making, so she filed a public records request to find out. The hospital is governed by a public board, she said, and therefore subject to the state's open records law.
Many months and roadblocks later, Holladay-Hollifield faced a decision: File a costly lawsuit to get the information, or give up.
“This is supposed to be easy to access,” she said. “I've got three kids; I'm taking care of my motherin-law and my husband. I mean, I don't have a spare $10,000.”
Holladay-Hollifield's predicament represents what experts say is a fundamental breakdown of American democracy: the fact that, in most states, the most effective — and often only — option for residents to resolve open government disputes is to sue.
“Unfortunately, in the United States, almost everywhere, you have to go to court to enforce these laws. And that's just wrong,” said David Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida. “If the system requires the average person to hire an attorney to make
democracy work, then it's really broken.”
A nationwide review of procedures by The Associated Press and CNHI News, timed to Sunshine Week, found that fewer than a third of states have offices that can resolve residents' complaints by forcing agencies to turn over documents or comply with open meetings requirements.
In most states, residents have just one meaningful option when they believe an agency is illegally withholding public information: to wage a legal battle. This system has a chilling effect, discouraging private
citizens from finding out about everything from police investigations to how elected officials make decisions and spend taxpayer money.
Alabama is one of these states.
Holladay-Hollifield began seeking records from Huntsville Hospital, which is overseen by the Health Care Authority of the City of Huntsville, a public corporation, in early 2023. She petitioned its governing board, where an attorney repeatedly rebuffed her request. She then contacted numerous local public officials, but none could help.
Finally she consulted a lawyer, who told her a lawsuit would likely cost thousands of dollars.
Joe Campbell, general counsel for the Huntsville Hospital system, said the facility's administration and board have tried to provide Holladay-Hollifield with appropriate responses without “compromising their fiduciary obligations to protect the hospital.”
“We have notified her in writing that we contend executive salaries are confidential and not subject to an open record request,” Campbell said in an email.
However, J. Evans Bailey,
a media law attorney in Montgomery, says significant Alabama Supreme Court rulings have held that all health care authorities in the state are subject to its public records law.
“If you are subject to the open records law, and you have a document that shows what the salaries are of various executives or higher level people in your government entity, that should be an open record,” Bailey said.
Systems lack teeth
The AP and CNHI's 50-state review uncovered a patchwork of systems for resolving open government disputes. Some states, like Arizona and Indiana, have offices that can review residents' complaints but can't compel agencies to comply with their findings.
Others give their attorneys general authority to issue opinions or take matters to court, though experts say they rarely pursue litigation or prosecution.
“That's one of the real challenges with any of these laws is that even when they have enforcement tools built in, civil liability or criminal liability, that they are so rarely enforced,” said Chip Stewart, a media law professor at Texas Christian University.
Beyond private citizens, these systems can cost taxpayers.
When LaPorte County, Indiana, Prosecutor Sean Fagan took office in January 2023, one of his first requests was to access emails from the office's prior administration to review details about ongoing cases.
The problem? Those emails are on servers controlled by county commissioners, who refused to hand them over.
The Indiana Attorney General, the state public access counselor and the Indiana Prosecuting Attorneys Council all agreed the state's Access to Public Records Act gave Fagan the legal right to obtain the emails.
Commissioners still refused to provide them. The county attorney warned a lawsuit was likely. So did Indiana Public Access Counselor Luke Britt, whose job is to oversee compliance with public access laws.
“LaPorte County seemingly thumbed its nose at the position of this office and other state officials on this matter before, which may ultimately leave its resolution to the courts in what will likely result in expensive litigation,” Britt wrote in an opinion calling on the board to release the emails.
The warnings became reality in June when Fagan sued commissioners.
But because Fagan is a LaPorte County employee, taxpayers there and around the state are on the hook to pay for the litigation. The attorney general's office has contracted outside representation for Fagan, and commissioners have used public dollars to hire an attorney.