As we conclude this series, we’ll take a look at the last big case of the Alabama Supreme Court’s term: Something Extra Publishing, Inc. v. Mack. 

In this case, a police officer shot and killed a man in a fatal encounter when he responded to the scene of an accident. The incident was captured by the police officer’s body camera and by the cellphones of witnesses. A grand jury ultimately declined to indict the officer.  

About two years later, the Baldwin County newspaper Lagniappe submitted an open records request to the Baldwin County Sherriff’s Office asking for the videos and other things, like the autopsy report and other records related to the matter. The office denied the request, partly claiming that Alabama law protected this information as privileged as part of a law-enforcement investigation. Lagniappe sued, but the trial court ruled in favor of the sheriff’s office. Lagniappeappealed.

In an 8-1 decision, the Alabama Supreme Court affirmed. In an opinion written by Justice Greg Shaw, the court examined the text of the open-records act and the statute concerning law-enforcement investigations (called “investigative privilege”) and wrestled with how the two interacted. The investigative-privilege statute protects certain things in a law-enforcement investigation from open-records requests. I think we can all agree that some things need to temporarily be off limits as law enforcement tries to figure out what happened. 

But on the other hand, that exception can’t be so broad that is swallows the rule. If it does, then all law enforcement has to do is to claim that the material is related somehow, however loosely, to an investigation, and then the public never gets to see it. Sunshine is the best disinfectant, so the public has an interest in knowing how their government operates. 

The text of the investigative-privilege statute says, “law enforcement investigative reports, records, field notes, witness statements, and other investigative writings are privileged communications protected from disclosures.” At the risk of oversimplifying the analysis (which is a risk I have to take at the moment due to my busy schedule right now), the majority opinion construed this broadly to protect materials related to the investigation, including evidence that existed before the investigation started. Thus, the majority opinion will give law enforcement broad protection going forward.

Chief Justice Parker dissented. Reading the investigative-privilege statute along with the open-records request, he argued that the investigative-privilege statute should be construed as a narrow exception to the open-records rule. Breaking out his copy of Justice Scalia’s treatise on statutory interpretation, he walked through a very thorough analysis and concluded that “related investigative material” meant “only records, created by law enforcement officers, that relate to their investigation. It does not include records that merely document an incident or records that are merely part of a process of observation and information collection.” He then walked through many of the items requested by the newspaper and concluded that they should not be protected. He warned that the court’s decision represented a sweeping change in its approach to the investigative-privilege statute.

In my opinion, this case was a difficult one. It was fascinating watching the debate between Chief Justice Parker and Justice Shaw. Of the justices of the Alabama Supreme Court, those two are probably the most detail-oriented justices when it comes to matters like these. Justice Shaw did not get as detailed in his analysis as Chief Justice Parker did, but he likewise invoked Scalia’s treatise, the relevant precedents, and did a detailed examination of the words of the statute. So if you’re the type of person who enjoys watching a good debate, especially when both sides seem to have merit, I would recommend reading the opinion. I probably have to read it a few more times to completely wrap my head around it before making a final decision myself.

Regardless, what’s true is that after Something Extra Publishing, law enforcement now has substantial room to invoke the investigative privilege. If we agree with Chief Justice Parker that this goes too far, then we have two options. First, we can urge the court to overrule its decision in a future case. Second, we can contact our legislators and urge them to make any necessary adjustments to the statutory scheme if it believes the court erred. It is important to have effective law enforcement and public accountability for law enforcement, so this case involves the balancing of two important interests. Hopefully time will tell whether we have struck the right balance and whether any adjustments need to be made.