Exception to Open Records Act


Zackery v. Water Works and Sewer Board of the City of Gadsden, [Ms. SC-2023-0530, Feb. 23, 2024] __ So. 3d (Ala. 2024). The Court (Sellers, J.; Wise, Mendheim, and Stewart, JJ., concur; Parker, C.J., and Shaw and Bryan, JJ., concur in the result; Mitchell and Cook, JJ., recuse) affirms Etowah Circuit Court’s judgment holding that the Water Works and Sewer Board of the City of Gadsden (“the Board”) does not have to immediately disclose confidential settlement agreements requested by Fred Zackery pursuant to the Open Records Act, § 36-12-40, et seq., Ala. Code 1975.

The Board entered into settlement agreements to resolve claims that certain carpet and chemical manufacturers caused PFAS contamination of the Board’s raw water intake. In the settlements, the Board obtained “funding for technology to remediate PFAS from its drinking water.” Ms. *2.

While acknowledging the settlement agreements are public records, the Board “relies on an exception to the Act, i.e., that disclosure of the settlement agreements would be detrimental to the best interests of the public. Specifically, the Board argues that disclosure of the settlement amounts before the competitive bid process is initiated and completed could drive the bids upwards, increasing the cost of the project.” Ms. **6-7.

The Court reiterates that “applying the rule-of-reasoning test, courts ‘must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference.’” Ms. *9, quoting Stone v. Consolidated Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981). The Court “conclude(s) the trial court did not exceed its discretion in holding that an exception to the Open Records Act was present, which justified nondisclosure of the settlement agreements until after the competitive-bid process was complete.” Ms.**9-10.

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