The Alabama State Board of Midwifery released public records requested by GateHouse Media without cost late Friday after a two-week battle that caught the attention of open-records advocates.
The move reversed the board’s initial position that midwives’ addresses are exempt from public record, as well as its requirement that GateHouse Media complete a two-page form committing it to pay unspecified fees and waive property and homestead rights in the event of a failure to pay.
GateHouse Media owns hundreds of newspapers across the U.S. including two Alabama newspapers — The Tuscaloosa News and The Gadsden Times.
“We are pleased that the board provided these records that clearly are in the public’s interest and are not exempt by the state’s sunshine law,” said GateHouse Media National Projects Editor Emily Le Coz. “We also are encouraged by its decision to forgo the use of the overly burdensome form in this case and hope they do away with it completely.”
On March 21, GateHouse Media asked for the names, addresses and licensing information of non-nurse midwives governed by the newly created Alabama State Board of Midwifery.
It was the first public records request the group had received since its creation under a 2017 law, according to board Chairwoman Noel Leithart, who had forwarded the request to Assistant Attorney General Bettie Carmack.
Carmack told a reporter she must complete the form before the board would fulfill the request. The form notes that all records requests trigger an automatic $10 fee that rises to an automatic $60 fee if an attorney’s services are required.
When asked for a cost estimate before filling out the form, which commits GateHouse Media to paying regardless of how high those fees might rise, Carmack refused.
Carmack also initially denied a portion of the request upfront — that of the midwives’ addresses — going against decades of opinions issued by her own office. At the time, she cited no statute exempting the addresses despite multiple requests to do so.
In a follow-up phone conversation, Carmack said GateHouse Media could file a lawsuit if it wanted the addresses.
GateHouse Media journalists tweeted about the situation, piquing the interest of several open-records advocates.
The nonprofit open-records organization MuckRock blasted the state for “reach(ing a) new milestone in barriers to access.” And the Alabama Sunlight Coalition plans to publish advertisements criticizing the state’s response to the records request.
GateHouse Media refused to complete the form and further argued it was entitled to the midwives’ addresses.
“The Alabama Supreme Court has condemned precisely the sort of selective government decision-making that the record here demonstrates, admonishing that the Open Records Act is not ‘an avenue for public officials to pick and choose what they believe the public should be made aware of,’ ” wrote GateHouse Media attorney Charles Tobin in a four-page letter to Carmack on April 2.
The letter was sent on behalf of GateHouse Media, The Tuscaloosa News and The Gadsden Times.
Tobin criticized both the two-page form and the denial of addresses, citing numerous statutes, attorney general opinions and legal cases in support of his position. He urged Carmack to release the records by that Friday without charge.
Carmack responded that she would release most of the records without charge and without requiring completion of the form. But she continued to argue against releasing the midwives’ addresses, this time citing a section of the law that allows for exemption when providing the records could be detrimental to public safety or welfare.
This is despite the fact the Alabama Attorney General’s Office has issued opinions that the addresses of other professional state licensees and group members are subject to public disclosure, including plumbers, gas fitters, workers compensation insureds, and members of the Peace Annuity Fund.
“We fail to see, in light of your office’s contrary legal opinion as to these categories of individuals, why your office now believes the ‘public safety and welfare’ is served by withholding the addresses of state-licensed health professionals such as midwives,” Tobin responded in an email.
Carmack relented when GateHouse Media clarified that it was interested in midwives’ mailing addresses; not necessarily home addresses. The board updated its website Friday to include the licensing information requested and released three of the six midwives’ mailing addresses via email. The other three were not available and will be provided as soon as possible, Carmack said.
The request was made in pursuit of a follow-up story to GateHouse Media’s series on the rise and risk of out-of-hospital births, “Failure to Deliver.” When the project published in November 2018, Alabama had not begun issuing licenses to non-nurse midwives. Only six midwives have been licensed since then.
GateHouse Media has filed more than 130 similar requests for information about certified nurse midwives, licensed midwives and birth center licensing information in all 50 states and the District of Columbia, including a request to the Alabama Board of Nursing, which fulfilled the request without cost.
“I commend your organization for the fortitude to keep pushing. I think it shows that when our government is put in a position where they have to release records, it’s a benefit to all of us,” said Carla Crowder of the Alabama Sunlight Coalition. “It is just too easy for public officials to withhold or to make it incredibly difficult for journalists, and any member of the public, to access records that can show information that’s important to the wellbeing of the people of our state. It shouldn’t take attorneys getting involved for public records to be released.”
Lucille Sherman is a national data enterprise reporter for GateHouse Media.