Sue or give up? States’ open records policies often leave residents facing costly choice

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 were making, 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 public information: 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 local 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 all 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.

Systems lack teeth

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

“That’s one of the real challenges with any of these laws is that even when they have enforcement tools built in, civil liability or criminal liability, that they are so rarely enforced,” said Chip Stewart, a media law professor at Texas Christian University.

Beyond private citizens, these systems can cost taxpayers.

When LaPorte County, Indiana, Prosecutor Sean Fagan took office in January 2023, 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.

The Indiana Attorney General, the state public access counselor and the Indiana Prosecuting Attorneys Council all agreed the state’s Access to Public Records Act gave Fagan the legal right to obtain the emails.

Commissioners still refused to provide them. The county attorney warned a lawsuit was likely. So did Indiana Public Access Counselor Luke Britt, whose job is to oversee compliance with public access laws.

“LaPorte County seemingly thumbed its nose at the position of this office and other state officials on this matter before, which may ultimately leave its resolution to the courts in what will likely result in expensive litigation,” Britt wrote in an opinion calling on the board to release the emails.

The warnings became reality in June when Fagan sued commissioners.

But because Fagan is a LaPorte County employee, taxpayers there and around the state are on the hook to pay for the litigation. The attorney general’s office has contracted outside representation for Fagan, and commissioners have used public dollars to hire an attorney.

Price of winning

Pennsylvania is one of few states with a robust office for resolving open records disputes. The Office of Open Records reviews appeals and issues binding decisions, which can be appealed in court. Some experts describe the office as one of the better systems for handling such complaints.

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

Simon Campbell, a prolific records requester from the Philadelphia suburbs, saw a request of his challenged at the Pennsylvania Supreme Court, a rare venue for open records appeals.

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.

Campbell’s involvement was as a hobbyist, one with a mean streak for bureaucrats stymying public access. He took up a stalled fight first waged by The (Sunbury) Daily Item, a CNHI affiliate.

It took four years and, according to Campbell, cost 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.

Hard to navigate

Beyond varying vastly from state to state, systems for resolving open government disputes can be complicated and daunting to navigate. They also can carry hefty fees for those seeking information.

Thomas Mattson, a videographer from Salem, Massachusetts, routinely requests body camera footage from local police agencies. The requests, he said, are often denied under investigatory exemptions.

In Massachusetts, the Supervisor of Records with the Secretary of the Commonwealth can issue decisions in records disputes, though the attorney general and the courts are the ultimate enforcer in such cases.

Mattson has appealed dozens of denials to the supervisor of records and said a letter from the office is often enough to get compliance.

But, he is commonly met with fees, sometimes hundreds of dollars.

“That’s how they deter people from seeking these records,” Mattson said. “This is what I do, but the average person would just give up out of frustration.”

No dollars to lose

When Illinois updated its Freedom of Information Act laws 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 or follow open meetings rules. If officials don’t comply, the attorney general can take them to court. Civil penalties can reach up to $5,000 per offense.

It is one of the few state offices with such enforcement powers in transparency disputes.

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 to mediate the issue, the chief deputy attorney general issued a binding opinion in January requiring the trustees to comply with the request immediately.

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

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

In 2022, she filed a separate complaint after the township wouldn’t provide receipts for what she saw as suspicious activity regarding attorney 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 from the township, she said.

To enforce the opinion, Moriarity 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.”