Dana Holladay-Hollifield has worked as a nurse in Alabama for years, but her pay has never been lower than at Huntsville Hospital.
She wondered what the nonprofit's leaders made, so she filed a public records request to find out. The hospital is governed by a public board, she explained, and is therefore subject to the state's public records law.
Several months and obstacles later, Holladay-Hollifield had to make a decision: file a costly lawsuit to obtain the information, or give up.
ENFORCEMENT OF GOVERNMENT RULES ON TRANSPARENCY IS POOR IN MOST STATES, REPORT FINDS
“It’s supposed to be easy to access,” she said. “I have three kids; I take care of my mother-in-law and my husband. I mean, I don't have $10,000 extra.”
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 disputes with open government 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 a lawyer to make democracy work, then it’s really broken.”
Dana Holladay-Hollifield stands outside Huntsville Hospital in Huntsville, Alabama on February 27, 2024. (Amanda Shavers/The Cullman Times via AP)
A national review of procedures by the Associated Press and CNHI News, timed for Sunshine Week, found that fewer than a third of states have offices that can resolve resident complaints by requiring agencies to turn over documents or comply to the requirements of public meetings.
In most states, residents have only one option when they believe an agency is illegally withholding public information: fight a legal battle. This system has a chilling effect, discouraging private citizens from knowing everything from police investigations to how elected officials make decisions and spend taxpayer dollars.
Alabama is one of those states.
Holladay-Hollifield began seeking records from Huntsville Hospital, which is overseen by the Health Care Authority of the City of Huntsville, a publicly held corporation, in early 2023. She petitioned her board administration, where a lawyer repeatedly rejected his request. She then contacted numerous local officials, but none could help her.
Eventually, she consulted a lawyer, who told her a trial would likely cost thousands of dollars.
Joe Campbell, general counsel for the Huntsville hospital system, said the facility's administration and board attempted to provide Holladay-Hollifield with appropriate responses without “compromising their fiduciary duties to protect the hospital “.
“We have informed her in writing that we assert that executive salaries are confidential and are not subject to an open records request,” Campbell said in an email.
However, J. Evans Bailey, a media law attorney in Montgomery, says important Alabama Supreme Court decisions have ruled that all state health authorities are subject to the public records law .
“If you are subject to the open records law and you have a document that shows what the salaries of various executives or higher-level people are in your government entity, that should be an open record,” Bailey said .
SYSTEMS ARE LACKING TEETH
The AP and CNHI's review of 50 states found a patchwork of systems for resolving open government disputes. Some states, such as Arizona and Indiana, have offices that can review residents' complaints but cannot force agencies to comply with their findings.
Others give their attorneys general the power to issue opinions or take the case to court, although experts say they rarely initiate litigation or prosecution.
“That's one of the real challenges with each of these laws is that even when they have enforcement tools built into them, whether it's civil or criminal liability, they're so rarely enforced,” Chip said Stewart, professor of media law at Texas Christian University.
Beyond private citizens, these systems can be costly to taxpayers.
When LaPorte County, Indiana District Attorney Sean Fagan took office in January 2023, one of his first requests was to access emails from the office's previous administration to review case details in progress.
The problem? Those emails are on servers controlled by county commissioners, who have refused to release them.
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The Indiana Attorney General, the state's public access advisor, and the Indiana Attorneys' Council all agreed that the state's Access to Public Records law gave Fagan the legal right to 'get the emails.
The commissioners have always refused to provide them. The county attorney warned that a prosecution was likely. So did Indiana Public Access Advisor Luke Britt, whose job is to oversee compliance with public access laws.
“LaPorte County has apparently thumbed its nose at the position of this office and other state officials on this issue before, which may ultimately leave it up to the courts to resolve what will likely result in costly litigation ” Britt wrote in a notice calling on the board. to release the emails.
Those warnings came true in June when Fagan took the commissioners to court.
But because Fagan is a LaPorte County employee, state and statewide taxpayers must pay for the litigation. The attorney general's office hired outside representation for Fagan, and commissioners used state funds to hire an attorney.
WINNER PRIZE
Pennsylvania is one of the few states with a robust office to resolve open records disputes. The Office of Open Records reviews appeals and makes binding decisions. which can be appealed to the courts. Some experts describe the office as one of the best systems for handling such complaints.
However, there can be costly and time-consuming obstacles.
Simon Campbell, a prolific records requester from suburban Philadelphia, had his request challenged in the Pennsylvania Supreme Court, a rare venue for open records appeals.
He won.
A Feb. 21 notice asserted that the Pennsylvania Interscholastic Athletic Association — a nonprofit organization that regulates athletics for 350,000 middle and high school students — is a public entity subject to the state's Right to Know law. The decision facilitated the pending release of thousands of financial documents and correspondence.
Campbell's involvement was as an amateur, with a nasty streak toward bureaucrats who obstruct public access. He began a stalled fight first led 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 that he won't get back.
“We cannot have a society in which citizens must pay private lawyers to defend the law enacted by the General Assembly, and yet that is exactly the case here,” he said.
DIFFICULT TO NAVIGATE
Beyond their considerable differences from state to state, open government dispute resolution systems can be complicated and intimidating to navigate. They can also incur high fees for those seeking information.
Thomas Mattson, a videographer from Salem, Massachusetts, regularly requests body camera footage from local police departments. Requests, he explained, are often denied under investigative exemptions.
In Massachusetts, the Supervisor of Records to the Secretary of the Commonwealth can make decisions in disputes over records, although the attorney general and the courts are the final enforcer in such cases.
Mattson has appealed dozens of denials to the records supervisor and said a letter from the office is often enough to gain compliance.
But he is usually faced with fees, sometimes hundreds of dollars.
“That’s how they dissuade people from searching for these records,” Mattson said. “That’s what I do, but the average person would give up out of frustration.”
NO DOLLAR TO LOSE
When Illinois updated its Freedom of Information laws in 2010, government watchdog groups held it up as a national model for how states should approach public access policies.
The law authorizes the state's public access advisor to issue “binding” opinions that can force agencies to turn over documents or follow rules for public meetings. If officials fail to comply, the attorney general can prosecute them. Civil penalties can be up to $5,000 per violation.
It is one of the few public bodies with such enforcement powers in transparency disputes.
That authority saved Ellen Moriarty of suburban Chicago about $1,000 in attorney fees after the Homer Township trustee's office denied her a copy of a settlement agreement.
After multiple attempts at mediation, the chief deputy attorney general issued a binding notice in January requiring the directors to immediately comply with the request.
“I can’t tell you how happy I am that the attorney general is going through with this,” she said.
Moriarty also knows what can happen when these binding notices are not issued.
In 2022, she filed a separate complaint after the municipality refused to provide receipts for what she considered suspicious activity regarding attorney fees.
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In that case, the attorney general sided with Moriarty but issued a non-binding opinion. A year and a half later, she has still not received any documents from the municipality, she said.
To enforce this notice, Moriarity would have to take legal action.
“I’m just one homeowner in the township who is concerned about how our money is being spent,” she said. “I don’t have money to waste just to be able to see records.”