ALABAMA — A professor’s fight to obtain records from a university could hit a brick wall if a court agrees that the university was not required to produce records it never created.
In a Jan. 17 hearing before a court-appointed ”special master” on open records issues, associate humanities professor Derryn Moten, co-president of the American Federation of Teachers Faculty-Staff Alliance at Alabama State University, pursued his case against the university for failing to produce documents related to faculty salaries and the minutes of board of trustees meetings.
As special master, Montgomery-area attorney and former journalist Dennis Bailey listened to arguments from both parties, reviewed documents and took sworn testimonies.
Bailey, who for 25 years acted as council for the Alabama Press Association, said he was surprised that both sides agreed to his appointment as special master, as he is a well-publicized ”champion of open government.”
In his recommendation to the Circuit Court of Montgomery County, filed Jan. 23, Bailey determined that the ”Defendants [Alabama State University] established that they indeed provided all documents in their possession responsive to Plaintiff’s specific requests.”
”You can’t sue a public entity for failing to create a document,” Bailey said.
Moten said he was at first pleased with the assignment of the special master, but now he is worried that the university may be cleared of the charge if it emerges that its officials never created the records.
”While I was initially optimistic about our prevailing, I’m now concerned simply because a strict interpretation of the Alabama records law by the special master could bode ill for us,” Moten said.
After a failed attempt to obtain the records in early 2005, Moten filed his current suit in October, asking for the Montgomery County Court to order Alabama State University to provide the requested records.
Alabama law is ”very clear” about requiring public officials to keep records of their official business, said Leslie Horton, Moten’s attorney. But it appears that such records were never created, she said.
”If it is true that a certain category of records was never created, or created but not maintained, that is not a violation of open records act,” Horton said. ”The Act presupposes that they exist, and, well, you can’t get blood from a turnip.”
But Horton maintained that there should be a written record of the kinds of documents requested, including documents related to the compensation of the university’s faculty and the reasoning behind salary decisions.
For Moten, an inability to access records related to his salary earnings has kept him frustrated and in the dark.
”Since the faculty salary schedules are not kept in the public space, for example the university library, I didn’t even know that the board had reduced the maximum amount of money I can earn in my rank,” Moten said.
Student journalists at Alabama State University have had less trouble accessing records from administrators and the board of trustees, said Kenneth Dean, the student media coordinator.
Dean said student journalists from the university’s student-run newspaper, The Hornet Tribune, followed Moten’s lawsuit last spring, but have stopped writing articles on the subject.
When students have gone to board of trustees members for information, the chairman has responded positively and handed over information, he said.
”He’s always accessible,” Dean said. ”They’ve been pretty open with us. I’m not sure if they are as open with faculty.”
Bailey, the case’s special master, said if university officials neglected to create documents that, as public officials, they should have created, they might have violated another act. But it was Bailey’s recommendation that the university did not violate Alabama’s open records act.
”It’s not an open records question,” Bailey said.
A spokeswoman for Alabama State University did not return a call for comment.
—by Allison Retka, SPLC staff writer