Something Extra Publ'g, Inc. v. Mack
| Decision Date | 24 September 2021 |
| Docket Number | 1190106 |
| Citation | 350 So.3d 663 |
| Parties | SOMETHING EXTRA PUBLISHING, INC., d/b/a Lagniappe Weekly v. Huey Hoss MACK, Anthony Lowery, and Michael Gaull |
| Court | Alabama Supreme Court |
Merrick J. Wayne of Loevy & Loevy, Chicago, Illinois; David A. McDonald, Mobile; and Blakely W. Barnes, Fairhope, for appellant.
Fred L. Clements, Jr., of Webb & Eley, P.C., Montgomery, for appellees.
Something Extra Publishing, Inc., d/b/a Lagniappe Weekly ("Lagniappe"), the plaintiff below, appeals from a summary judgment entered in favor of the defendants, Baldwin County Sheriff Huey Hoss Mack and two members of the Baldwin County Sheriff's Office, Colonel Anthony Lowery and Lieutenant Michael Gaull ("the Sheriffs"), in this action alleging that the Sheriffs improperly denied Lagniappe's request for public records in violation of the Open Records Act ("the ORA"), § 36-12-40 et seq., Ala. Code 1975. We affirm.
In May 2017, Corporal Matt Hunady, a deputy sheriff employed by the Baldwin County Sheriff's Office ("the Sheriff's Office"), responded to the scene of a single-vehicle accident where, ultimately, he fatally shot Jonathan Victor, the driver and sole occupant of the vehicle. The incident was apparently captured on video by various means, including by Cpl. Hunady's bodycamera and on the cellular telephones of civilian eyewitnesses. Following the incident, the Baldwin County Major Crimes Unit ("the Major Crimes Unit") investigated the circumstances of the shooting.2 In October 2017, a grand jury declined to indict Cpl. Hunady on any criminal charge.
Thereafter, in January 2019, Jason Johnson, a reporter employed by Lagniappe, the publisher of an independent weekly newspaper distributed throughout Baldwin County, sent an email message to Col. Lowery that contained the following:
Col. Lowery replied to Johnson's email as follows: 3 In a subsequent email dated January 31, 2019, Johnson further explained:
"I'm trying to request the following under the [ORA]: ‘All of the records related to the shooting of Jonathan Victor on May 12, 2017, including but not limited to dash cam, body cam, and third party video; the audio from any 911 calls or radio communications; photographs from the scene; autopsy records; and communications such as emails, text messages, and other forms of messaging.’ "4
Again, Col. Lowery responded with the following:
Six days later, Johnson sent another email to Col. Lowery and Lt. Gaull inquiring as to "how [he] might need to proceed with this records request." At that time, Lt. Gaull replied as follows:
Lt. Gaull attached a copy of § 12-21-3.1, Ala. Code 1975 ("the investigative-privilege statute"),5 to his response. There was apparently no further communication between Lagniappe and the Sheriff's Office.
Lagniappe subsequently sued the Sheriff's Office, Col. Lowery, and Lt. Gaull in the Baldwin Circuit Court. Lagniappe later amended its complaint to omit the Sheriff's Office as a named defendant and to add, instead, Sheriff Mack as a defendant. Lagniappe's complaint, which alleged that the Sheriffs had violated the ORA by failing to produce nonexempt public writings, sought both declaratory and injunctive relief.
After answering Lagniappe's amended complaint, the Sheriffs jointly moved for a summary judgment. In support of that motion, the Sheriffs, among other arguments, disputed that Johnson's inquiry amounted to an ORA request and argued that any request should be directed to the Major Crimes Unit; thus, the Sheriffs asserted, Lagniappe lacked "standing" to pursue its claim seeking equitable relief. Alternatively, the Sheriffs, citing § 12-21-3.1(b), disputed that the identified records constituted "public writings" subject to production under the ORA. As support for their motion, the Sheriffs submitted copies of the emails quoted above as well as their affidavit testimony establishing, among other details, that the Major Crimes Unit, rather than the Sheriff's Office, had investigated the referenced incident; that the Major Crimes Unit independently maintained its investigative files to which the Sheriff's Office lacked access; and the Sheriff's Office's procedure for the submission of an ORA request.
Following additional filings and a hearing, the trial court entered a summary judgment in favor of the Sheriffs.6 Lagniappe appeals.
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
On appeal, Lagniappe raises three challenges to the trial court's summary judgment in favor of the Sheriffs: that the trial court erred to the extent that it might have concluded that the Sheriffs successfully demonstrated that they did not possess responsive records; that the trial court erred to the extent that it might have concluded that Lagniappe's records request was improperly submitted when, Lagniappe maintains, the Sheriffs nonetheless formally responded; and that the trial court erred to the extent that it might have concluded that certain requested materials were, as the Sheriffs asserted, exempt as law-enforcement investigative reports under § 12-21-3.1(b).
Initially, this Court notes that, under other circumstances, it would be hesitant to conclude that Lagniappe's email inquiries, which appear merely to seek further direction as to how to proceed with a request for records under the ORA, amounted to an actual request pursuant to the ORA, especially when established records-request procedures are in place. See note 3, supra. Nonetheless, because, as Lagniappe argues, the Sheriffs treated Lagniappe's emails as an ORA records request by formally responding, any failure by Lagniappe to properly request documents pursuant to the ORA appears to be immaterial. Similarly, because Johnson's January 31, 2019, email clearly sought records and information other than what might have been separately maintained by the Major Crimes Unit, we conclude that the Sheriffs’ contentions that they lacked access to the Major Crimes Unit's investigative file was also immaterial -- especially because the affidavits of the Sheriffs filed in support of their motion for a summary judgment do not deny that the Sheriff's Office possessed the requested materials.
Lagniappe contends that the "ORA requires Defendants to produce public records in their possession." This is incorrect; the ORA states that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute." Ala. Code 1975, § 36-12-40. In addition to acknowledging that separate statutes might provide exceptions to the ORA, § 36-12-40 goes on to state numerous other exceptions. The Sheriffs argue, as they did in their motion for a summary judgment, that the records requested by Lagniappe fall under a statutory exception provided by § 12-21-3.1(b). That Code section states: "Law enforcement investigative reports and related investigative material are not public records." (Emphasis added.) It then goes on to state that "[l]aw enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communications protected from disclosure."
Both the term "investigative reports" and the list of "privileged communications" seem to suggest that the exception was crafted with the intention of protecting materials...
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