Review finds states’ rules often put the burden of enforcing open government on private citizens

HUNTSVILLE, Ala. (AP) — 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 made, 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 mother-in-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 information, and that is 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 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 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.

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The AP and CNHI’s 50-state review revealed a patchwork of complicated systems for resolving open government disputes. Some states, like Arizona and Indiana, have offices that can review complaints but can’t force 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.

Beyond private citizens, these systems can cost taxpayers.

When LaPorte County, Indiana, Prosecutor Sean Fagan took office last year, 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.

Indiana’s attorney general, its public access counselor and its Prosecuting Attorneys Council all agreed state law gave Fagan the right to obtain the emails.

Commissioners still wouldn’t budge. So in June, Fagan sued.

Because Fagan is a LaPorte County employee, taxpayers there and around the state must foot the bill. The attorney general’s office contracted outside representation for Fagan, and commissioners used public dollars to hire an attorney.

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Pennsylvania is one of few states with a robust office for resolving public records disputes. Its Office of Open Records reviews appeals and issues binding decisions, which can be appealed in court.

Still, there can be costly and time-consuming hurdles.

Simon Campbell, a prolific records requester who lives near Philadelphia, saw a request he made challenged at the Pennsylvania Supreme Court.

He won.

A Feb. 21 opinion affirmed that the Pennsylvania Interscholastic Athletic Association — a nonprofit regulating athletics for 350,000 middle school and high school students — is a public entity subject to the state’s Right to Know Law. The ruling facilitated the pending release of thousands of financial documents and correspondence.

It took four years and, according to Campbell, tens of thousands of dollars in legal fees he won’t recoup.

“We can’t have a society in which private citizens have to pay private lawyers to defend the law that the General Assembly enacts, yet that is exactly the case we have here,” he said.

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When Illinois updated its freedom of information law in 2010, it was heralded by government watchdog groups as a national model for how states should approach public access policies.

The law allows the state’s public access counselor to issue “binding” opinions that can require agencies to turn over documents. If officials don’t comply, the attorney general can take them to court. Civil penalties can reach up to $5,000 per offense.

That authority saved Ellen Moriarty, of suburban Chicago, around $1,000 in attorney fees after she was denied a copy of a settlement agreement by the Homer Township Trustee’s Office.

After multiple attempts at mediation, the chief deputy attorney general issued a binding opinion in January requiring that trustees immediately comply.

“I can’t tell you how happy I am that the attorney general is going to see this through the end,” she said.

Moriarty knows what can happen when binding opinions aren’t issued.

In 2022, she filed a complaint after the township wouldn’t provide receipts for what she saw as suspicious activity regarding attorneys’ fees.

In that case, the attorney general sided with Moriarty but issued a nonbinding opinion. A year and a half later, she still hasn’t received any documents. To enforce the opinion, Moriarty would have to sue.

“I’m just a homeowner in the township who is concerned about how our money’s being spent,” she said. “I don’t have dollars to lose just so I could see some records.”

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Kelety reported from Phoenix, Scicchitano from Shamokin, Pennsylvania, and Gerber from Kokomo, Indiana. Amanda Shavers of The Cullman Times contributed from Hunstville.

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This story is a collaboration between CNHI News and The Associated Press. The AP’s support of local democracy coverage receives funding from the William and Flora Hewlett Foundation. See more about AP’s democracy initiative here.

Josh Kelety/ap, Eric Scicchitano/cnhi News And Carson Gerber/cnhi News, The Associated Press