Do you agree with these sheriffs that these food funds are the sheriffs’ personal

money and not subject to public records requests?

No. While there was arguably a historical practice to retain excess funds as ‘personal
money’ in Alabama prior to 2011 (AG Opinion 2008-061), I find no legal justification for
this practice after April 20, 2011. In AG Opinion 2011-053, the Office of Attorney
General stated “…neither the sheriff nor the county may use the surplus for any purpose
other than future expenses in feeding prisoners”.1

If not, should they be subject to open records requests?

Yes. Public funds, transferred to the sheriffs for the feeding of inmates, are a business
activity required and reasonably subject to the Open Records Act. ALA. CODE 36-12-40
(2013).2 Public funds are a public resource and subject to public view and inspection
unless law requires otherwise.

Alice Martin, April 26, 2018

1 References:

• Opinion to the Honorable John Hollis Jackson, Jr. Attorney Chilton County Commission, dated May 19, 2000, A.G. No. 2000-
151 finding that the sheriff’s office may retain unspent funds unless the county commission directs the funds into their general
fund. [Attorney General Bill Pryor]

• Opinion to the Honorable James Turnbach, Attorney Etowah County Commission, dated March 17, 2008, A.G. No. 2008-061
finding that the sheriff may "keep and retain" the food service allowances citing a memorandum in 1996 advising the sheriffs
that food "expenses should be paid from the food and service allowances which are received from the state for such purposes,
and any remaining balance of such funds after feeding the prisoners would belong to the sheriff personally." Memorandum of
the Examiners of Public Accounts, dated April 1996, at 11. The AG Opinion deferred to this “established administrative
construction that has been followed for a long time” as “presumed correct.” Glencoe Paving Co. v. Graves, 266 Ala. 154, 94
So. 2d 872 (1957); see also, State v. Consumers Bagging Co., Inc., 48 Ala. App. 95, 262 So. 2d 297 (Ala. Civ. App. 1971)
(stating that when a longstanding administrative interpretation has stood unchallenged for a lengthy period of time, that fact is
to be given favorable consideration by the courts). Accordingly, based on this longstanding practice, it is the opinion of this
Office that the sheriff may retain any surplus in the allowances as personal income. [Attorney General Troy King]

• Opinion to the Honorable Mike Blakely, Limestone Sheriff, dated April 20, 2011, A. G. No. 2011-053, the opinion was given
that “…neither the sheriff nor the county may use the surplus for any purpose other than future expenses in feeding prisoners.”
[Attorney General Luther Strange]

2 The Open Records Act. ALA. CODE 36-12-40 (2013) 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." While the statute does not define the term "public
writing," the Supreme Court of Alabama has defined "public record,” in section 36-12-40, to be "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 and 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).