Birmingham News Co. v. Muse

• Decision Date: 18 March 1994
• Citation: 638 So.2d 853
• Parties: The BIRMINGHAM NEWS COMPANY v. William V. MUSE. William V. MUSE v. The BIRMINGHAM NEWS COMPANY. 1921325, 1921937.
• Court: Alabama Supreme Court

Page 853

638 So.2d 853

The BIRMINGHAM NEWS COMPANY v. William V. MUSE.

William V. MUSE v. The BIRMINGHAM NEWS COMPANY.

1921325, 1921937.

Supreme Court of Alabama.

March 18, 1994.

James C. Barton, Gilbert F. Johnston, Jr. and Hollinger F. Barnard of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for The Birmingham News Co.

Thomas D. Samford III, General Counsel, Auburn University, T.W. Thagard, Jr. and Cynthia A. Holland of Balch & Bingham, Montgomery, and John P. Scott of Balch & Bingham, Birmingham, for William V. Muse.

PER CURIAM.

The Birmingham News Company filed an action against Dr. William V. Muse, president of Auburn University, seeking preliminary and permanent injunctions ordering Dr. Muse to cease and desist from denying access to Auburn University's response to a letter of official inquiry from the National Collegiate Athletic Association ("the NCAA"). The trial court denied a preliminary injunction, because the NCAA had not yet issued a final ruling on the matter, and the News appealed (# 1921325). The court later issued a permanent injunction, and Dr. Muse appealed (# 1921937). The issue is whether Auburn's response to the NCAA inquiry is a public writing subject to inspection and copying pursuant to Ala.Code 1975, § 36-12-40.

Because the trial court entered a permanent injunction granting the News the relief it requested, the appeal from the earlier denial of a preliminary injunction is moot and will be dismissed. The News argues that its appeal is not moot because, it says, the timeliness of the release of the documents is significant, but any decision we might render would not result in an enforceable judgment. The only judgment now capable of having any effect is the permanent injunction, and we decline to express an advisory opinion on the preliminary injunction under the circumstances of this case.

Section 36-12-40 reads, in pertinent part:

"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."

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. Code 1975, § 41-13-1." (Emphasis in original.) Instead, the Court held that it applies to "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." 404 So.2d at 681 (emphasis in original). The Court then said:

"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.... 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.... 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."

404 So.2d at 681 (citations omitted; emphasis added). The Court in Stone reversed the summary judgment for the publishing company that sought access and remanded for the trial court to consider whether the records met the test for public disclosure as set out in Stone.

Dr. Muse argues that this balancing to determine whether documents are subject to disclosure requires a factual finding as to each document. The News complains that Dr. Muse did not request in camera inspection for nondisclosure or redaction of particular documents until the second hearing, during which the court indicated that it would order the entire response disclosed. However, Dr. Muse responds with the statement that Auburn requested in camera review at the first hearing, but that the judge declined to review the documents in detail, having decided to deny immediate relief. The second hearing was prompted by Auburn's objection to the trial court's order that the sealed record be sent to this Court, and during that hearing Dr. Muse requested full review in camera. It appears that the court ordered full disclosure and denied the request for in camera review because it was deferring to this Court because of the earlier appeal from the denial of the preliminary injunction.

When a legitimate argument for nondisclosure is made, a factual determination as to which documents should be disclosed and which should not should ordinarily be made in the first instance by the trial court. But for the preliminary appeal to this Court, the trial court presumably would have engaged in such a review. Furthermore, because Stone contemplates a fact-based decision on disclosure, a denial of a request for nondisclosure made without first undertaking such a review would seem to be error.

One of the cases relied on in Stone was State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). Newsome, a student reporter for the University of New Mexico, wanted access to the nonacademic staff personnel records of the University. The Supreme Court of New Mexico held that an in camera review was required to balance the interests in favor of disclosure against the interests in favor of confidentiality. The court applied several statutory exemptions to certain portions of the record and then considered arguments for nonstatutory exemptions. It set forth guidelines for determining confidentiality and remanded to the trial court for consideration as to disclosure of individual records. Thus, Newsome supports the principle of initial in camera review by the trial court.

As to the merits of Auburn's argument for nondisclosure, we note that "information received by a public officer in confidence" is the first category listed in Stone of records not required to be disclosed pursuant to § 36-12-40. However, the Court stated in Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989), "The exceptions set forth in Stone must be strictly construed...." Therefore, a claim of confidentiality must be grounded in the facts of the particular case.

The argument for confidentiality of the response to the NCAA investigation is strongly supported by the opinion of the Supreme Court of Kansas in Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (1982). Berst was a mandamus action seeking a protective order against disclosure of NCAA documents at its headquarters in Kansas. The documents pertained to its investigation into charges that the University of Alabama had broken NCAA rules while recruiting Bobby Lee Hurt from Butler High School. Hurt and the principal of Butler had sued the Birmingham Post Company (publisher of the Birmingham Post-Herald newspaper and hereinafter called "the Post-Herald") for libel, and the Post-Herald was seeking the documents to aid in making its defense, its defense being the contention that the articles it had published were true. The trial court allowed full disclosure, but the Supreme Court of Kansas allowed access only to "memoranda contain[ing] information directly relating to a central issue in the Alabama lawsuit, that of the truth or falsity of the information reported in the subject publications." 232 Kan. at 192-93, 653 P.2d at 117 (emphasis added). The Supreme Court of Kansas held that the trial court had erred in denying the motion without conducting an in camera review, 232 Kan. at 186-87, 653 P.2d at 113, but conducted its own review because of the exigency of the pending libel action in Alabama.

The following language from the Berst opinion supports Dr. Muse's argument for confidentiality and nondisclosure:

"Whether the petitioners have a protectable interest in maintaining the confidentiality of their private investigation into possible infractions of NCAA rules undoubtedly presents a legal question of significant public interest. Substantially affected are the privacy interests of those persons to whom information in the file relates or who have passed on information to the NCAA under a pledge of confidentiality as well as the NCAA's ability to perform one of its primary functions, that of policing its own ranks to prevent corruption in collegiate athletics....

"To fully appreciate the NCAA's high degree of interest in preserving the confidentiality of their investigation files and the identities of their sources, it is helpful to understand the self-policing function of the NCAA and how this system operates. Briefly, the NCAA is a voluntary organization composed of approximately 750 colleges and universities ¹ throughout the United States. One of the primary duties of the NCAA is to enforce regulations governing the recruiting, admissions, financial aid, and academic standards aspects of collegiate athletics at member institutions.

"Investigations by the NCAA of possible rules infractions are conducted in the strictest of confidence pursuant to internal rules of the NCAA. It is undisputed that investigators must rely on confidential sources for much of their information. Generally, any information an investigator comes across during his inquiries is placed in the NCAA's confidential file on that investigation. In any one of the NCAA's investigation files there may be allegations and speculation about an individual's sexual preferences, mental capacity, drug and alcohol use, and financial condition; academic records of students, anonymous letters and memoranda of telephone calls, and internal memoranda of interviews which contain the...