Water Works v. Consolidated Pub., Inc.

• Decision Date: 16 January 2004
• Parties: The WATER WORKS AND SEWER BOARD OF the CITY OF TALLADEGA and George Montgomery, v. CONSOLIDATED PUBLISHING, INC. Consolidated Publishing, Inc. v. The Water Works and Sewer Board of the City of Talladega and George Montgomery.
• Court: Alabama Supreme Court

892 So.2d 859

The WATER WORKS AND SEWER BOARD OF the CITY OF TALLADEGA and George Montgomery, v. CONSOLIDATED PUBLISHING, INC.

Consolidated Publishing, Inc. v. The Water Works and Sewer Board of the City of Talladega and George Montgomery.

1020228, 1020311.

Supreme Court of Alabama.

January 16, 2004.

Rehearing Denied May 28, 2004.

Charles P. Gaines of Gaines, Gaines & Rasco, P.C., Talladega, for appellant/cross-appellee George Montgomery.

Steven D. Adcock, Talladega, and J.N. Montgomery, Jr., Talladega, for appellant/cross-appellee the Water Works and Sewer Board of the City of Talladega.

Dennis R. Bailey and Hendon B. DeBray of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and Elizabeth S. Parsons of Blair & Parsons, P.C., Pell City, for appellee/cross appellant Consolidated Publishing, Inc. Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Alabama Press Association, in support of the appellee/cross appellant.

William H. Pryor, Jr., atty. gen.; Nathan Forrester, deputy atty. gen.; Olivia W. Martin and Dana H. Billingsley, asst. attys. gen., for amicus curiae State of Alabama, in support of the appellee/cross-appellant.

Robert E. Sasser, Tamara A. Stidham, and Charlanna W. Spencer of Sasser, Littleton & Stidham, P.C., Montgomery, for amicus curiae Alabama Water and Wastewater Institute, in support of the appellants/cross-appellees.

SEE, Justice.

Consolidated Publishing, Inc. ("Consolidated"), the publisher of The Daily Home, a newspaper distributed in Talladega County, sued the Water Works and Sewer Board of the City of Talladega ("the Water Board"), and its custodian of records, George Montgomery, in the Talladega Circuit Court to enjoin the Water Board from denying Consolidated access to certain records of the Water Board. Consolidated argued that it was entitled to the records under Alabama's "Open Records Act," § 36-12-40, Ala.Code 1975. The Water Board argued that because it is a public corporation it is not required to abide by the provisions of the Open Records Act.

After a hearing, the trial court found that the Water Board was subject to the Open Records Act, but that some of the records requested by Consolidated fall within exceptions to that Act and are therefore shielded from public disclosure. The Water Board appeals from the trial court's holding that it is subject to the Open Records Act (case no. 1020228); Consolidated appeals from the trial court's holding that some of the requested documents are not to be disclosed because they fall within exceptions to the Act (case no. 1020311). On January 21, 2003, this Court consolidated the two cases. We affirm in part, reverse in part, and remand.

I.

The first issue is whether § 36-12-40, Ala.Code 1975, the Open Records Act, applies to the Water Board, a public corporation organized under § 11-50-310 et seq., Ala.Code 1975. The facts are not disputed. "This Court's review of the application of the law to the undisputed facts is de novo." Lyons v. Norris, 829 So.2d 748, 750 (Ala.2002). Accordingly, we attach no presumption of correctness to the trial court's judgment.

II.

Public corporations were initially authorized by the Legislature as a means for municipalities to finance improvements to their utilities infrastructure without running afoul of constitutional and statutory debt limitations, as well as to shield municipalities from the large financial obligations that often accompany such utilities projects. Coxe v. Water Works Bd. of Birmingham, 288 Ala. 332, 337, 261 So.2d 12, 15-16 (1972). Yet public corporations have typically maintained close relationships with the municipalities that create them. For example, in the case before us, the Water Board has operated out of the Talladega City Hall for most of its existence, and its members are selected by the Talladega City Council.

It is the obligation of this Court when interpreting a statute "to ascertain and effectuate the intent of the legislature as expressed in the statute," here the Open Records Act. Employees' Retirement Sys. of Alabama v. Head, 369 So.2d 1227, 1228 (Ala.1979). As the State of Alabama states in its amicus curiae brief:

"There has been considerable confusion over the existence and legal status of public corporation utilities, primarily because the reported cases are inconsistent in their analysis. It is possible to find a public corporation utility case to support almost any proposition...."

Compare Langham v. State, 662 So.2d 1201 (Ala.Crim.App.1994) (holding that utility boards are subject to state ethics laws), with Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 608 (Ala.2002) ("We conclude that the Sunshine Law does not apply to a public corporation organized under § 11-50-310 et seq., such as the Water Works and Sewer Board of the City of Selma.").¹

The Open Records Act is remedial and should therefore be liberally construed in favor of the public. As we stated in Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989):

"It is clear from the wording of [the Open Records Act] that the legislature intended that the statute be liberally construed. In addition, we note, statutes intended for the public benefit are to be construed in favor of the public. Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970)."

III.

The Open Records Act provides 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." (Emphasis added.) The term "public writing" is not defined in the Alabama Code. Consolidated urges this Court to equate the terms "public writing" and "public record" and to apply, in interpreting the Open Records Act, the definition of "public record" that appears in § 41-13-1, Ala.Code 1975:

"As used in this article, the term `public records' shall include 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...."

(Emphasis added.) Consolidated then hopes to show that the Water Board is a "subdivision[] of government" and that, by extension, it is subject to the Open Records Act. This argument is appealing; however, this Court in Stone v. Consolidated Publishing Co., 404 So.2d 678, 680 (Ala.1981), declined to equate the terms "public writing" and "public record." Although recognizing that the Legislature may not have intended to make a distinction between the terms, this Court stated:

"Construing these statutes [§ 36-12-40 and § 41-13-1] in pari materia, we hold that the `public writing' spoken of in Code 1975, § 36-12-40, is 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 or condition of such business and activities can be known by our citizens."

404 So.2d at 681. Since Stone, this Court has consistently applied that definition of "public writing" to questions arising under the Open Records Act. See, e.g., Ex parte Gill, 841 So.2d 1231, 1233-34 (Ala.2002)

; Birmingham News Co. v. Muse, 638 So.2d 853, 854 (Ala.1994); and Chambers, 552 So.2d at 856.

It is clear that the operative term in the Stone definition of "public writing" for purposes of this case is the term "public officer." In other words, if the employees of the Water Board are considered "public officers," then the records "reasonably necessary to record the business and activities required to be done or carried on by [the Water Board employees]" are "public writings" and must be disclosed under § 36-12-40. The term "public officer" is defined in the Alabama Code, not coincidentally, in the same title and chapter as the Open Records Act. We choose to employ this definition of "public officer or servant" in our application of the Stone definition of "public writing." Section 36-12-1, Ala.Code 1975, reads:

"A public officer or servant, as used in this article, is intended to and shall include, in addition to the ordinary public offices, departments, commissions, bureaus and boards of the state and the public officers and servants of counties and municipalities, all persons whatsoever occupying positions in state institutions."

(Emphasis added.) The Water Board employees are not officers or servants of the State; therefore, the crucial question is whether they are officers or servants of a municipality.

IV.

The Water Board was established by the City of Talladega as a public corporation and has operated out of the Talladega City Hall for most of its existence. The members of the Water Board are appointed by the Talladega City Council. The Water Board performs a municipal function, namely, supplying water and sewer services to the residents of Talladega. Because public corporations perform municipal functions, they have long been held to be agencies of the municipality they serve, regardless of their organizational structure. See, e.g., Carson v. City of Prichard, 709 So.2d 1199, 1205 (Ala.1998)

; State ex rel. Richardson v. Morrow, 276 Ala. 385, 162 So.2d 480, 482 (1964); and Jackson v. Hubbard, 256 Ala. 114, 53 So.2d 723, 728 (1951). This Court stated in an advisory opinion issued in 1938:

"When the city is performing a governmental function, it is none the less so because it is done by the instrumentality of some administrative agency, such as a board, commission, or even a corporation set up for that purpose, created by or for the city's use in that connection.

"The mere fact that it is a corporation does not deprive it of the qualities of a governmental agency...."

Opinions of the Justices, No. 45, 235 Ala. 485, 486, 179 So. 535, 536 (1938) (emphasis added). Because the Water Board has the qualities of an agency of the City of Talladega, we hold that its employees are public officers and servants of the City of Talladega for purposes of...