Image courtesy of sunshineweek.org
Dr. Chris Roberts, University of Alabama Department of Journalism and Creative Media
Alabama Press Association
I played the role of Atticus Finch for you by taking on an unpopular cause in court. I sued Harper Lee.
But unlike the attorney in Lee’s famed “To Kill a Mockingbird,” I emerged on the winning side in a case that underscores the need for equal treatment under the law. It matters today as we recognize Sunshine Week, which highlights the need for public records to be open for the public good. (http://sunshineweek.org)
Officially, I was the Alabama citizen who sought access to Lee’s will, which Monroe County Probate Judge Greg Norris sealed from public view in February 2016 at the request of Lee’s estate. Alabama law says “every citizen has a right to inspect and take a copy of any public writing of this state,” but we’ve found that some state agencies sneak in the word “state” in front of “citizen” as a way to deny information to out-of-state residents and news organizations. Multiple state agencies have done this to avoid national scrutiny or state-by-state comparisons, slowing down the reporting process for organizations that include The New York Times, The Wall Street Journal, ESPN and the Center for Investigative Reporting. It may take another lawsuit to close that invented loophole.
That invented loophole is why The New York Times asked me to attach my name to its March 2016 lawsuit asking that the case file be unsealed. The argument made on behalf of The Times by Alabama-based lawyer Archie Reeves: Public records are public records, whether you’re a private citizen few people know or the state’s most famous private person. It took nearly two years before the estate dropped its defense in February.
Lee’s estate argued that her will needed to be sealed because the judge was “no doubt aware” that Lee “highly valued her privacy.” The Times called that a crummy argument, saying her estate “is no different from every other estate when it comes to the public’s right of access.” Lee’s estate also argued that people named in it might be open to harassment, but it provided no evidence why that protection might have been needed.
Indeed, open access provides information that may be sensitive or embarrassing. That includes wills, which spell out how dead people give away their worldly possessions. Wills are open for public inspection to give people “who may have claims against the estate an opportunity to make those claims within the time specified by the laws of each state,” Alabama Press Association lawyer Dennis Bailey said.
Public records also can yield important news, even though they may not have in this case. The Times’ Feb. 27 story — “Harper Lee’s Will, Unsealed, Only Adds More Mystery to Her Life” — provided little new information beyond further knowledge that Lee sought privacy and another turn in the screw in showing how Lee’s lawyer tightly manages her finances. (In fact, having such little new information actually argues against any need to have hidden it in the first place.)
The document showed that her estate was placed in a trust that will remain secret. It named family members and others who will control the estate, all of whose names have been in the public eye before. (In fact, that is another reason it should not have been hidden in the first place.)
And we saw Lee’s unsteady hand as she signed it eight days before she died, maybe the last thing Alabama’s most famous author ever wrote.
Some critics called The Times’ lawsuit a fishing expedition, and its story proof that The Times didn’t catch anything. But there’s nothing wrong with a fishing expedition when it comes to public records and journalism.
Anyone who has ever wet a line knows that fishing and catching are not the same thing. A fishing trip isn’t wasted just because little ends up in the frying pan. The experience and the principle matter.
And so it is with public access to public records, which journalists (and anyone else) can use to understand their communities and how their governments work. Efforts by the powerful to exempt themselves from court rules that everyone else must follow is a bad thing.
The biggest example comes from the criminal conviction of former Gov. Robert Bentley, whose efforts to lie and conceal included having a judge he appointed seal his divorce records. A collection of statewide news organizations had to sue before the records were open in September 2015. The filing showed the governor gave up more than a 50-50 split. That insight made more sense as more information became known about the relationship he lied about and ordered others to lie about. He quit following a conviction 11 months ago, just the latest Alabama governor with a criminal record.
Sure, there’s a difference between Lee’s will and Bentley’s divorce, but not in principle. In both instances, they cited family privacy as a reason. As the documents and later reporting showed, the arguments did not hold up. But without access to public records, we would never know.
In both cases:
* It took news organizations going to court.
* Some criticized those organizations who fought powerful people seeking special treatment.
* News organizations won when the other side gave up before going to trial.
* People who sought to hide information knew they could not win.
* Former Supreme Court Justice Louis Brandeis’ statement proved correct: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
And in both cases, the power of open records laws meant that everyone was treated equally under the law.
Atticus Finch might be proud.
Dr. Chris Roberts is an associate professor in the Department of Journalism and Creative Media at the University of Alabama. He was a reporter at multiple weekly and daily newspapers in the state. He can be reached at croberts@ua.edu.
