FAIRHOPE, Ala. — Editor’s Note: This is the first in a two-part series on the Sunshine Law and open government. This article examines the city of Fairhope’s current policy on the availability of documents the City Council uses to make decisions at council meetings.

When the City Council meets twice each month, the council members, mayor and city clerk have in front of them what is informally called the council “notebook” or “packet.”

But they are the only people in the council chambers during the meeting who are currently allowed to have the notebook prior to or at the time of the meeting.

“You cannot have a copy of the notebook before the meeting,” City Clerk Geniece Johnson said Monday. “But if you would like to come in and review it before the meeting, you can do that. But you cannot make copies at that time.”

The Fairhope council notebook contains the agenda for the meeting, the minutes from the last meeting, and all of the documents the City Council will use to make its decisions during the meeting.

Some of the documents are draft ordinances, financial reports, site plan recommendations and other documents produced by the city. Others are site plan drawings, letters, petitions and requests from companies and individuals sent to the city, or attached to other documents, about items pending during the meeting.

In response to a request by the Fairhope Courier to make copies of the council notebook prior to the council meetings, the clerk’s office sent an e-mail from the executive director of the Alabama League of Municipalities.

“If your city has an agenda prepared before the meeting, they should give the press a copy of it before the meeting,” Perry Roquemore said in that Jan. 15 e-mail sent to the Fairhope City Clerk’s office. “However, nothing requires that copies of other documents to be considered by the council be presented to the press prior to the meeting. As you know, these documents can be altered during a meeting by way of amendment and are not final until adopted.”

The general counsel for the Alabama Press Association takes a different view about whether such “draft” documents are public records and available prior to council meetings.

“We’ve fought that battle and gotten some pretty good circuit court opinions,” said Dennis Bailey. “But we don’t have an attorney general or appellate opinion. The other side hasn’t appealed from those cases.”

One of the senior attorneys at the ALM said that some documents in the packet might be public and others not, depending on whether they must be approved by the council.

“Most likely everything in the packet is a public record and should be made available on request, but there is nothing in the public record law that says it has to be made available immediately,” Lori Lein said Monday. “I don’t think there’s a general policy. It’s going to depend on each document. A letter from a company would be a business letter and a public record. But minutes and draft ordinances, I don’t think there’s anything that requires those to be provided before the meeting.”

Johnson said that copies of council notebooks are available immediately after council meetings.

In Daphne, the entire council packet is available on the city’s Web site several days before the meeting.

“We went paperless in January 2005,” Daphne City Clerk David Cohen said Monday. “It was getting expensive to make so many copies of documents sometimes more than 150 pages long. Now anyone in the world who wants to can see it. They are available on the Web site the Thursday or Friday before the Monday council meeting.”

That Web site maintains all of the Daphne council packets starting with the meeting on Jan. 3, 2005.

Those packets includes draft ordinances and the unapproved minutes from the previous week. Some of the minutes from Daphne meetings include lengthy verbatim transcripts of council member comments during the meeting.

“I record the council meeting by cassette tape and take notes,” Cohen said. “I use the tape and notes to form the minutes, which are the actions that the council takes. If a council members wants a discussion to be placed in the minutes, he or she must request that.”

In Mobile, the entire council packet is also made available before the council meeting

“We make bound copies of (the packets for) weekly meetings and the young man who covers the council gets a copy on Friday before the meeting the following week,” Mobile City Clerk Glenda Morgan said Monday. “We are also trying to (put the entire packet online). We are close to going out to bid for that project.”

Some local City Council members believe the Fairhope council notebook should be made available before council meetings.

“I have tried for years to get the city to include giving the press a copy of our council packets,” said Councilwoman Debbie Quinn. “It seems to me it would make you more informed and thus could write a better article if you had all the information early and in front of you when we address an issue. I understand about the minutes, but the rest could be given out.”

The director of the Marion Brechner Citizen Access Project in Gainesville, Fla., which tracks open government laws in all 50 states, stated Monday that denying access to such council packets frustrates democracy and public involvement in government.

“This is absolutely contrary to the principles of self-government,” said Bill Chamberlin, who is also a professor at the University of Florida law school, specializing in freedom of information issues. “Citizens need to know what their officials are doing, and how can they know what they are doing if they don’t have access to the same information that their representatives have. Officials should want at least reporters to understand as much as possible about what is going on so that errors in the stories are not made, and so that intelligent questions can be asked. I would think they would want their citizens in the same position. It is hard to justify this policy except as a tool to keep citizens out of the sunshine and in the dark about what their government is doing.”

SUNSHINE WEEK

“Sunshine Week,” March 16-22, 2008, is a national initiative to open a dialogue about the importance of open government and freedom of information.

Sunshine Week is led by the American Society of Newspaper Editors and participants include print, broadcast and online news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.

Though spearheaded by journalists, Sunshine Week is about the public’s right to know what its government is doing and why. It seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.

Sunshine Week is a nonpartisan initiative whose supporters are conservative, liberal and everything in between, according to the group’s Web site at www.sunshineweek.org.