Alabama Advisory Opinions August 19, 2014: AGO 2014-082 (August 19, 2014)

Advisory Opinion Text

Honorable Molly Meadows

Chair, Houston County Board of Registrars

Post Office Box 6406

Dothan, Alabama 36302

Registrars, Board of - Public Records -Voter Registration List - Felons

The Board of Registrars ("Board") is not required to provide a citizen with a list of voters who have been disqualified because of convictions for unlawful possession of marijuana in the first degree when such records are not maintained by the Board.

Dear Ms. Meadows:

This opinion of the Attorney General is issued in response to your request on behalf of the Houston County Board of Registrars.

QUESTION

Is the Houston County Board of Registrars required to provide an individual with a list of Houston County voters who have been disqualified from voting because of felony convictions of unlawful possession of marijuana in the first degree?

FACTS AND ANALYSIS

In your request, you state that a local individual has requested that the Houston County Board of Registrars provide him with a list of persons who have been disqualified from voting because of convictions of unlawful possession of marijuana in the first degree. The Board is required to continuously purge voters who are convicted of a disqualifying criminal offense. Ala. Code § 17-4-3 (2006). The Board is also required to keep a record of disqualified electors and the basis for that person's removal from the registration list. Ala. Code § 17-4-12 (2006). You have informed this Office that the records of the Board merely reflect disqualification because of a felony conviction, without a reference to the specific crime. Thus, the records that are being requested do not exist.

The Open Records Act, codified in section 36-12-40 of the Code of Alabama, provides that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute." Ala. Code § 36-12-40 (2013). The Code does not define the term "public writing." Section 41-13-1, however, defines a "public record" as follows:

[A]ll written, typed or printed books, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office, or officer.

Ala. Code § 41-13-1 (2013) (emphasis added).

The Alabama Supreme Court has defined the term "public writing" as "such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status or condition of such business and activities can be known by our citizens." Stone v. Consol. Publ'g Co., 404 So.2d 678, 681 (Ala. 1981).

The Public Records Law requires a governmental agency to provide reasonable access to public records as those records exist. Opinion to Honorable Charles L. Payne, Chancellor, Department of Postsecondary Education, dated December 16, 1987, A.G. No. 88-00079. Because the records that are being requested are not maintained by the Board and, thus, do not exist, the Board is not required to provide a citizen with a list of voters who have been disqualified because of convictions for unlawful possession of marijuana in the first degree.

CONCLUSION

The Board of Registrars is not required to provide a citizen with a list of voters who have been disqualified because of convictions for unlawful possession of marijuana in the first degree when such records are not maintained by the Board.

I hope this opinion answers your question. If this Office can be of further assistance, please contact me.

Sincerely,

LUTHER STRANGE Attorney General

BRENDA F. SMITH Chief, Opinions Division