Stone v. Consolidated Pub. Co.

• Decision Date: 02 October 1981
• Citation: 404 So.2d 678
• Parties: Ernest STONE, Charles C. Rowe and Jack Hopper v. CONSOLIDATED PUBLISHING COMPANY. 80-211.
• Court: Alabama Supreme Court

Page 678

404 So.2d 678

Ernest STONE, Charles C. Rowe and Jack Hopper v. CONSOLIDATED PUBLISHING COMPANY.

80-211.

Supreme Court of Alabama.

Oct. 2, 1981.

Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for appellants.

James L. Klinefelter of Burnham, Klinefelter, Halsey & Love, Anniston, and James C. Barton and Gilbert E. Johnston, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.

David M. Olive for McMillan & Spratling, Birmingham, for amicus curiae Alabama Press Association.

PER CURIAM.

Consolidated Publishing Company, the publisher of The Anniston Star and appellee herein, filed a complaint against the appellants, Ernest Stone, Charles C. Rowe and Jack Hopper, in their respective capacities as officers of Jacksonville State University and as officers and directors of J.S.U. Reserve Public Relations Corporation (the Corporation), to permanently enjoin appellants from denying appellee access to records regarding the "finances" of Jacksonville State University and J.S.U. Reserve Public Relations Corporation. Both appellee and appellants filed motions for summary judgment. The motions for summary judgment were based upon the pleadings, affidavits, depositions and other documents on file in the trial court. The trial court granted appellee a summary judgment which enjoined appellants from denying appellee access to such records and further ordered the appellants to permit the inspection and copying of the financial records of Jacksonville State University and the records of J.S.U. Reserve Public Relations Corporation. Appellants seek to reverse the summary judgment on appeal.

By letter dated May 15, 1978, appellee made written demand on appellants to be allowed to inspect and take copies of records dealing with the fund maintained by J.S.U. Reserve Public Relations Corporation. Subsequently, an employee of appellee made several personal contacts with appellant Rowe, seeking information for an article the employee planned to write on the financial status of the University. Rowe told her at the time that he did not have all the information requested, and that he would have to do some "digging." Rowe was to get back in touch with the employee. However, when Rowe failed to make this contact, the employee returned to his office. Although appellee requested access to university books and other materials which were available to auditors, Rowe finally agreed to make available only the auditor's report. Further interviews, and contact with Ernest Stone, President of Jacksonville State University, proved unsuccessful in obtaining access to these records. It is apparent that appellee's interest had focused on the finances of the J.S.U. Reserve Public Relations Corporation, incorporated to "promote the public relations of Jacksonville State University." This Corporation is funded through alumni contributions and proceeds of vending machines located in non-dormitory areas of the Jacksonville State University campus, and it expends money for press relations, legislative relations, and entertainment.

Appellee's claim is based upon Code 1975, § 36-12-40, the First Amendment to the United States Constitution, and Article 1, § 4, of the Alabama Constitution of 1901. We do not deem it necessary to address the constitutional provisions. Code 1975, § 36-12-40, provides:

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.

Appellants contend that appellee is entitled to copy and inspect only such public records as are required by law to be kept by public officials. Code 1975, § 41-13-1. Appellants concede that the financial records of the University are public writings within the purview of Code 1975, § 36-12-40, but contend that the records of J.S.U. Reserve Public Relations Corporation are not public records because no law requires the keeping of such records. The trial court found the Corporation to be the alter ego of the University. Appellants make no issue as to this finding. Accordingly, for the purposes of this appeal, we must treat J.S.U. Reserve Public Relations Corporation as the alter ego of the University. Appellants are officers of the University as well as the officers and directors of the Corporation. Appellants were the original and sole incorporators of the Corporation, which was formed for educational purposes to promote the public relations of Jacksonville State University, and to receive and disburse funds and assets therefor.

While it is interesting to note that the statute relied upon by appellee (Code 1975, § 36-12-40) uses the term "public writing," while the statute appellants cite (Code 1975, § 41-13-1) defines the term "public records," we doubt the Legislature intended to make a distinction between a "public writing" and a "public record." It is clear that § 36-12-40 first appeared in the 1923 Code, and § 41-13-1 was enacted into law in 1945 in an act regulating the retention and disposal of public records generally.

In summary, appellants principally rely on the authority of Holcombe v. State, 240 Ala. 590, 200 So. 739 (1941), in which the Court held:

At the risk of repetition and to avoid uncertainty, we conclude by saying this court holds: (1) that the public generally have the right of a reasonable and free examination of public records required by law to be kept by public officials, except in instances where the purpose is purely speculative or from idle curiosity, or such as to unduly interfere or hinder the discharge of the duties of such officer.

240 Ala. at 597, 200 So. at 746. In that case, however, this Court held that the records in question were required by law to be kept. Accordingly, Holcombe cannot be considered as conclusive authority for the proposition that a record which is not required by law to be kept is not a "public writing" or a "public record" and therefore not subject to the right of a citizen to inspect and copy. While some courts have adopted the view espoused by appellants, see, e.g., Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833 (1967), the Superior Court of New Jersey, Appellate Division, construing statutes similar to our § 36-12-40 and § 41-13-1, held:

The Commissioner's conclusion that since local boards are not required to administer comprehensive achievement tests the results thereof are not public records is unsound. The fact that something need not be...