AlaFile E-Notice

03-CV-2020-900665.00

To: DAVID ALAN LUDDER

court.notices@enviro-lawyer.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

ENVIRONMENTAL DEFENSE ALLIANCE ET AL V. STEVEN TROY MARSHALL, ATTORNEY

03-CV-2020-900665.00

The following complaint was FILED on 5/18/2020 8:39:13 AM

Notice Date: 5/18/2020 8:39:13 AM

GINA J. ISHMAN
CIRCUIT COURT CLERK
MONTGOMERY COUNTY, ALABAMA
251 S. LAWRENCE STREET
MONTGOMERY, AL, 36104

334-832-1260
 DOCUMENT 1
ELECTRONICALLY FILED
5/18/2020 8:39 AM
03-CV-2020-900665.00
State of Alabama Case Number: CIRCUIT COURT OF
COVER SHEET MONTGOMERY COUNTY, ALABAMA
Unified Judicial System
CIRCUIT COURT - CIVIL CASE 03-CV-2020-900665.00
GINA J. ISHMAN, CLERK
(Not For Domestic Relations Cases) Date of Filing: Judge Code:
Form ARCiv-93 Rev. 9/18
05/18/2020

GENERAL INFORMATION
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA
ENVIRONMENTAL DEFENSE ALLIANCE ET AL v. STEVEN TROY MARSHALL, ATTORNEY GENERAL ET AL

First Plaintiff: Business Individual First Defendant: Business Individual

Government Other Government Other

NATURE OF SUIT: Select primary cause of action, by checking box (check only one) that best characterizes your action:

TORTS: PERSONAL INJURY OTHER CIVIL FILINGS (cont'd)

WDEA - Wrongful Death MSXX - Birth/Death Certificate Modification/Bond Forfeiture Appeal/
TONG - Negligence: General Enforcement of Agency Subpoena/Petition to Preserve

TOMV - Negligence: Motor Vehicle CVRT - Civil Rights

TOWA - Wantonness COND - Condemnation/Eminent Domain/Right-of-Way
TOPL - Product Liability/AEMLD CTMP - Contempt of Court
TOMM - Malpractice-Medical CONT - Contract/Ejectment/Writ of Seizure
TOLM - Malpractice-Legal TOCN - Conversion
TOOM - Malpractice-Other EQND - Equity Non-Damages Actions/Declaratory Judgment/
TBFM - Fraud/Bad Faith/Misrepresentation Injunction Election Contest/Quiet Title/Sale For Division

TOXX - Other: CVUD - Eviction Appeal/Unlawful Detainer

FORJ - Foreign Judgment
TORTS: PERSONAL INJURY FORF - Fruits of Crime Forfeiture
TOPE - Personal Property MSHC - Habeas Corpus/Extraordinary Writ/Mandamus/Prohibition
TORE - Real Properly PFAB - Protection From Abuse
EPFA - Elder Protection From Abuse
OTHER CIVIL FILINGS
FELA - Railroad/Seaman (FELA)
ABAN - Abandoned Automobile
RPRO - Real Property
ACCT - Account & Nonmortgage
WTEG - Will/Trust/Estate/Guardianship/Conservatorship
APAA - Administrative Agency Appeal
COMP - Workers’ Compensation
ADPA - Administrative Procedure Act
CVXX - Miscellaneous Circuit Civil Case
ANPS - Adults in Need of Protective Services

ORIGIN: F INITIAL FILING A APPEAL FROM O OTHER

DISTRICT COURT

R REMANDED T TRANSFERRED FROM

OTHER CIRCUIT COURT

Note: Checking "Yes" does not constitute a demand for a

HAS JURY TRIAL BEEN DEMANDED? YES NO jury trial. (See Rules 38 and 39, Ala.R.Civ.P, for procedure)

RELIEF REQUESTED: MONETARY AWARD REQUESTED NO MONETARY AWARD REQUESTED

ATTORNEY CODE:
LUD001 5/18/2020 8:39:12 AM /s/ DAVID ALAN LUDDER
Date Signature of Attorney/Party filing this form

MEDIATION REQUESTED: YES NO UNDECIDED

Election to Proceed under the Alabama Rules for Expedited Civil Actions: YES NO
 DOCUMENT 2
ELECTRONICALLY FILED
5/18/2020 8:39 AM
03-CV-2020-900665.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, ALABAMA

ENVIRONMENTAL DEFENSE
ALLIANCE and GASP, d/b/a Gasp,

Plaintiffs,

v. Civil Action No.

STEVEN TROY MARSHALL, in his

official capacity as Attorney General of the
State of Alabama and in his individual
capacity,

Defendant.
____________________________________/

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF AND NOMINAL DAMAGES

Nature of Action

1. This is an action for declaratory and injunctive relief and nominal damages

to redress violations of the Alabama Open Records Act, Ala. Code 1975 § 36-12-40.

Jurisdiction and Venue

2. This action arises under Ala. Code 1975 §§ 6-6-223, 6-6-226, 6-6-230 and

36-12-40.

3. This Court has jurisdiction under Art. VI, § 142(b), Ala. Const. 1901 (Off.

Recomp.) (“The circuit court shall exercise general jurisdiction in all cases except as may

otherwise be provided by law”); Ala. Code 1975 §§ 6-6-222 (“Courts of record, within

their respective jurisdictions, shall have power to declare rights, status, and other legal

relations whether or not further relief is or could be claimed”); 6-6-500 (“Injunctions may
 DOCUMENT 2

be granted . . . by the judges of the . . . circuit courts”); 12-11-31 (“The powers and

jurisdiction of circuit courts as to equitable matters or proceedings shall extend . . . To all

civil actions in which a plain and adequate remedy is not provided in the other judicial

tribunals”); 12-11-33 (“Circuit courts, when exercising equitable jurisdiction, must take

cognizance of the following cases: (1) When the defendants reside in this state”).

4. The official and individual residence of defendant Steven Troy Marshall is

in Montgomery County, Alabama. Venue is appropriate in Montgomery County,

Alabama. Ala. Code 1975 §§ 6-3-2(a)(3), 6-3-2(b)(3); Little v. State, 44 So. 3d 1070,

1072-73 (Ala. 2010).

Parties

5. Defendant Steven Troy Marshall is an individual and the Attorney General

of the State of Alabama and a public officer. The Attorney General is an officer within

the Executive Branch of State Government. The Attorney General may appoint deputy

attorneys general, assistant attorneys general, executive assistants, special administrative

assistants, and others to carry out the duties of the Office of Attorney General. Such

persons are under the direction, supervision, and control of the Attorney General.

6. Plaintiff Environmental Defense Alliance is an Alabama nonprofit

corporation the purpose of which is to further the conservation, preservation, protection,

maintenance, improvement, and enhancement of human health and the environment on

behalf of its members and the public. The Alliance administers a Government

2
 DOCUMENT 2

Accountability program to ensure that agency decision-making is transparent, fair,

rational, lawful and protective of human health and the environment.

7. Plaintiff GASP, d/b/a Gasp (hereinafter, “Gasp”), is an Alabama nonprofit

corporation the purpose of which is to further the conservation, preservation, protection,

maintenance, improvement and enhancement of human health and the environment on

behalf of its members and in the public interest. Gasp’s mission is to advance healthy air

and environmental justice in the greater-Birmingham area through education, advocacy,

and collaboration.

General Allegations of Fact

8. The ABC Coke facility is located in Tarrant, Alabama. The facility was

constructed in 1919 and has been in operation ever since. The facility produces foundry

coke and furnace coke that are sold or used in the coking process. The facility is the

largest merchant producer of foundry coke in the United States. The facility has been

owned by Drummond Company, Inc. since 1985. The operation of the facility has resulted in

the release of hazardous substances into the environment.

9. As a result of soil sampling in the neighborhoods of Collegeville, Fairmont

and Harriman Park in northern Birmingham, Alabama (collectively referred to hereinafter

as the “35th Avenue Site”), on March 17, 2011, the United States Environmental

Protection Agency (hereinafter, “EPA”) determined that a time-critical contaminated soil

removal action under the Comprehensive Environmental Response, Compensation, and

3
 DOCUMENT 2

Liability Act (hereinafter, “CERCLA”), 42 U.S.C. § 9606, was warranted to reduce the

potential human health risks to residents within the 35th Avenue Site.

10. On September 20, 2013, the EPA notified Drummond Company, Inc. that it

had been identified as a “potentially responsible party” for the release of hazardous

substances from the ABC Coke facility into the environment of the 35th Avenue Site.

The notice invited Drummond Company, Inc. to participate in the time-critical

contaminated soil removal action and advised Drummond Company, Inc. that it “may be

required to perform cleanup actions to protect the public health, welfare or the

environment” and “may also be responsible for costs incurred by the EPA in cleaning up

the Site . . ..” Drummond Company, Inc. did not accept the EPA’s invitation and EPA

proceeded to implement the time-critical contaminated-soil removal action using public

funds.

11. Drummond Company, Inc. engaged Balch & Bingham, LLP (hereinafter,

“Balch”) to oppose and minimize any liability Drummond might have under CERCLA for

the release of hazardous substances from the ABC Coke facility into the environment,

including any obligation to reimburse EPA for the costs of any removal or remedial

action. Balch, in turn, engaged Southeast Engineering & Consulting, LLC (hereinafter,

“SE+C”) on November 22, 2013 to render to Balch “advice, representation, and

assistance from time to time as requested by Balch during the term of this Agreement in

connection with environmental and regulatory and political matters as well as other issues

4
 DOCUMENT 2

identified by Balch that are of direct interest to Balch and/or its clients.” Balch partner

and attorney Joel Iverson Gilbert executed the Balch – SE+C agreement on behalf of

Balch and was designated therein as Balch’s representative for the administration of the

agreement. Onis (“Trey”) Glenn, III executed the Balch – SE+C agreement on behalf of

SE+C and was identified therein as a principal of SE+C. Subsequently, Balch also

engaged the Oliver Robinson Foundation, Inc. (hereinafter, “Foundation”) on February

16, 2015 (retroactive to December 1, 2014), to render to Balch “advice, representation,

and assistance from time to time as requested by Balch during the term of this Agreement

in connection with environmental and regulatory and political matters as well as other

issues identified by Balch that are of direct interest to Balch and/or its clients.” Balch

partner and attorney Joel Iverson Gilbert executed the Balch – SE+C agreement on behalf

of Balch and was designated therein as Balch’s representative for the administration of

the agreement and was designated therein as Balch’s representative for the administration

of the agreement. Oliver Robinson (a/k/a Oliver L. Robinson, Jr.) executed the Balch –

Foundation agreement on behalf of the Foundation and was identified therein as a

principal of the Foundation.

12. On July 1, 2014, Gasp submitted a petition to the EPA pursuant to

CERCLA, 42 U.S.C. § 9605, requesting that EPA perform a preliminary assessment of

the hazards to public health and the environment which are associated with the release of

5
 DOCUMENT 2

hazardous substances from the ABC Coke facility into a residential area of Tarrant,

Alabama (hereinafter, the “Pinson Valley Neighborhood Site).”

13. On September 22, 2014, EPA published proposed revisions to the National

Priorities List (hereinafter, “NPL”) which included the addition of the 35th Avenue Site

on the NPL. 79 Fed. Reg. 56538 (Sep. 22, 2014). “The NPL is intended primarily to

guide the [EPA] in determining which sites warrant further investigation. These further

investigations will allow the EPA to assess the nature and extent of public health and

environmental risks associated with the site and to determine what CERCLA-financed

remedial action(s), if any, may be appropriate.” Id.

14. Balch, Drummond and SE+C sought to influence Attorney General Luther

Johnson Strange, ADEM Director Lance R. LeFleur, Environmental Management

Commission Chair Houston Lanier Brown, II, and Governor Robert Julian Bentley to

undertake official actions in opposition to (a) EPA’s listing of the 35th Avenue Site on

the NPL, (b) EPA’s grant of Gasp’s petition for a preliminary assessment of the hazards

to public health and the environment which are associated with the release of hazardous

substances from the ABC Coke facility into the Pinson Valley Neighborhood Site, and (c)

an EPA site investigation finding that the release of hazardous substances from the ABC

Coke facility resulted in hazards to public health and the environment within the Pinson

Valley Neighborhood Site.

6
 DOCUMENT 2

15. On November 1, 2019, the Environmental Defense Alliance and Gasp, by

and through their respective attorneys, submitted a written request to Attorney General

Steven Troy Marshall seeking to inspect and copy the following described records:

all draft and final records of communications, including intra-agency

communications, letters, memoranda, correspondence, facsimiles, electronic
mail and text messages, calendar information, notes and summaries of
telephone conversations and meetings, and other records of
communications including attachments between any agent or employee of
the Office of the Attorney General (including but not limited to Luther J.
Strange, III, Steven T. Marshall, Kevin L. Turner, Robert D. Tambling, and
G. Ward Beeson) and any agent or employee of [specified] entities during
the calendar years of 2013 through 2019 concerning the business and
activities carried on by the agents or employees of the Office of the
Attorney General regarding any contamination or potential contamination of
the environment in Jefferson County (including but not limited to the 35th
Avenue Site and Pinson Valley Neighborhood site) or related matter,
regardless of where or how these records may be maintained or stored[.]

An accurate and complete copy of the request is attached hereto as Exhibit A.

16. On November 22, 2019, Defendant Steven Troy Marshall, by and through

Assistant Attorney General Gilbert Ward Beeson, served a response to the Environmental

Defense Alliance and Gasp request dated November 1, 2019 stating as follows:

This Office is unable to comply with your request as you have not
identified the particular documents to be provided. Ex parte Gill, 841 So. 2d
1231 (Ala. 2002). If you will resubmit your request with enough specificity
for us to be able to locate the documents, we will be happy to process your
request.

An accurate and complete copy of the response is attached hereto as Exhibit B.

17. On December 23, 2019, the Environmental Defense Alliance and Gasp, by

and through their respective attorneys, served a reply to Assistant Attorney General

7
 DOCUMENT 2

Gilbert Ward Beeson’s November 22, 2019 letter. Therein, the Alliance and Gasp stated

as follows:

Your November 22, 2019 response suggests that Ex parte Gill, 841
So. 2d 1231 (Ala. 2002) requires that citizens requesting records under Ala.
Code 1975 § 36-12-40 must identify specific documents to be inspected and
copied. We think you read too much into Ex parte Gill. In that case, the
citizen sought “to shift to the custodian of public writings the tasks of
inspecting them and identifying the ones to be copied” and the expense of
copying and “to undertake the burden and expense of mailing or otherwise
delivering the copies.” The Court said that “any inspection of the writings
and any identification of the ones to be copied must be performed by the
citizen or his or her agent (simply another citizen) under such reasonable
safeguards as the custodian may impose for the preservation of the writings.
Likewise, the burden and expense of copying the writings and taking the
copies must be borne by the citizen or his or her agent as provided by law . .
. or as required by such reasonable safeguards as the custodian may
impose.” Id. at 1234.

Unlike the citizen in Ex parte Gill, Gasp and the Alliance are
prepared to undertake the tasks of inspecting the records described in the
November 1, 2019 request and to identify the ones to be copied. In
addition, Gasp and the Alliance are prepared to bear the expense of copying
the records and either picking them up or having them delivered. To read
Ex parte Gill as requiring that citizens identify the specific records to be
inspected and copied would severely limit public access to public records
and preclude citizens from learning the business and activities of public
officers, thereby completely frustrating the purpose of Ala. Code 1975 §
36-12-40. It should be sufficient that citizens describe with particularity the
records sought to inspected, and following such inspection, to identify those
specific records to be copied. Gasp and the Alliance have described with
particularity the records sought to be inspected. Following that inspection,
Gasp and the Alliance will identify the specific records to be copied.

An accurate and complete copy of the response is attached hereto as Exhibit C.

18. Assistant Attorney General Gilbert Ward Beeson did not serve a further

response to the Environmental Defense Alliance and Gasp.

8
 DOCUMENT 2

19. Defendant Steven Troy Marshall knowingly and without authority withheld

from disclosure to the Environmental Defense Alliance and Gasp numerous records

responsive to their November 1, 2019 request. For example, Defendant Steven Troy

Marshall withheld from disclosure the following:

(a) numerous electronic mail messages received by agents or employees of

Office of the Attorney General (e.g., Robert Douglas Tambling and Kevin Lyle Turner)

from the specified entities (e.g., Balch) regarding contamination or potential

contamination of the environment in Jefferson County (including, but not limited to, the

35th Avenue Site and Pinson Valley Neighborhood Site);

(b) numerous electronic mail messages sent by agents or employees of the

Office of the Attorney General (e.g., Robert Douglas Tambling and Kevin Lyle Turner) to

the specified entities (e.g., Balch) regarding contamination or potential contamination of

the environment in Jefferson County (including, but not limited to, the 35th Avenue Site

and Pinson Valley Neighborhood Site);

(c) letters sent by agents or employees of the Office of the Attorney General

(e.g., Luther Johnson Strange, III) to the specified entities (e.g., City of Birmingham and

City of Tarrant);

(d) notes and summaries of numerous telephone conversations between agents

or employees of the Office of the Attorney General (e.g., Robert Douglas Tambling and

Kevin Lyle Turner) and the specified entities (e.g., Balch) regarding contamination or

9
 DOCUMENT 2

potential contamination of the environment in Jefferson County (including, but not

limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site);

(e) calendar information of scheduled meetings between agents or employees

of the Office of the Attorney General (e.g., Luther Johnson Strange, III, Robert Douglas

Tambling and Kevin Lyle Turner) and the specified entities (e.g., Balch and Drummond)

regarding contamination or potential contamination of the environment in Jefferson

County (including, but not limited to, the 35th Avenue Site and Pinson Valley

Neighborhood Site);

(f) notes and summaries of meetings between agents or employees of Office of

Attorney General (e.g., Luther Johnson Strange, III, Robert Douglas Tambling and Kevin

Lyle Turner) and the specified entities (e.g., Balch and Drummond) regarding

contamination or potential contamination of the environment in Jefferson County

(including, but not limited to, the 35th Avenue Site and Pinson Valley Neighborhood

Site);

(g) final intra-office written communications regarding contamination or

potential contamination of the environment in Jefferson County (including, but not

limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site);

(h) draft intra-office written communications regarding contamination or

potential contamination of the environment in Jefferson County (including, but not

limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site);

10
 DOCUMENT 2

Count I - Claim for Declaratory Relief

20. Plaintiffs incorporate by reference paragraphs 1 through 19 hereof.

21. Ala. Code 1975 § 36-12-40 provides:

Every citizen has a right to inspect and take a copy of any public writing of
this state, except as otherwise expressly provided by statute. * * *

22. In addition, Ala. Code 1975 § 36-15-1 provides:

The Attorney General shall keep his or her office at the capital city and
perform the following duties:

***

(5) He or she shall keep and preserve, with proper indexes thereto,
copies of all his or her official opinions and correspondence.

***

23. In addition, Ala. Code 1975 § 36-12-2 provides:

All public officers and servants shall correctly make and accurately keep in
and for their respective offices or places of business all such books or sets
of books, documents, files, papers, letters and copies of letters as at all
times shall afford full and detailed information in reference to the activities
or business required to be done or carried on by such officer or servant and
from which the actual status and condition of such activities and business
can be ascertained without extraneous information, and all of the books,
documents, files, papers, letters, and copies of letters so made and kept shall
be carefully protected and safely preserved and guarded from mutilation,
loss or destruction.

24. In addition, Ala. Code 1975 § 41-13-21 provides

***

11
 DOCUMENT 2

No state officer or agency head shall cause any state record to be

destroyed or otherwise disposed of without first obtaining approval of the
State Records Commission; * * *

25. In addition, Ala. Code 1975 § 13A-10-12 provides:

(a) A person commits the crime of tampering with governmental

records if:

***

(2) Knowing he lacks the authority to do so, he intentionally

destroys, mutilates, conceals, removes or otherwise substantially impairs the
verity or availability of any governmental record; or

(3) Knowing he lacks the authority to retain a governmental record

he refuses to deliver up the record in his possession upon proper request of
a person lawfully entitled to receive such record for examination or other
purposes.

26. Defendant Steven Troy Marshall knowingly and without authority withheld

from disclosure to the Environmental Defense Alliance and Gasp records that are

responsive to their November 1, 2019 request to inspect and copy records.

27. Plaintiffs dispute any contention by Defendant Steven Troy Marshall that

any of the records withheld from disclosure to the Environmental Defense Alliance and

Gasp are subject to a lawful claim of privilege or exception.

28. A proper construction of Ala. Code 1975 § 36-12-40 is necessary to

determine Plaintiffs’ right to inspect and copy those records withheld from disclosure to

the Environmental Defense Alliance and Gasp.

12
 DOCUMENT 2

29. A proper construction of Ala. Code 1975 § 36-12-40 is necessary to

determine Defendant Steven Troy Marshall’s authority to withhold from disclosure those

records withheld from disclosure to the Environmental Defense Alliance and Gasp.

Count II - Claim for Permanent Injunctive Relief

30. Plaintiffs incorporate by reference paragraphs 1 through 19 and 21 through

25 hereof.

31. Defendant Steven Troy Marshall’s failure to disclose those records withheld

from disclosure to the Environmental Defense Alliance and Gasp is beyond his authority

or based on a mistaken interpretation of law.

32. Plaintiffs will suffer a substantial threat of irreparable injury if Defendant

Steven Troy Marshall is not permanently enjoined from withholding records from

disclosure in violation of Ala. Code 1975 § 36-12-40. An award of money damages

against Defendant Steven Troy Marshall in his official capacity is precluded by Ala.

Const. art.1, § 13. Even if an award of money damages could be granted against

Defendant Steven Troy Marshall in his official capacity, such an award would not redress

the violation of Plaintiffs’ right to inspect and copy records.

33. The threatened injury to Plaintiffs if Defendant Steven Troy Marshall is not

permanently enjoined from continuing to withhold records from disclosure to the

Environmental Defense Alliance and Gasp in violation of Ala. Code 1975 § 36-12-40

outweighs any harm an injunction may cause Defendant Steven Troy Marshall. If an

13
 DOCUMENT 2

injunction is not granted, Plaintiffs Environmental Defense Alliance and Gasp will

continue to suffer the deprivation of their right to inspect and copy the requested records.

Defendant Steven Troy Marshall will suffer no harm if he is enjoined from continuing to

withhold disclosure of those records withheld from disclosure to the Environmental

Defense Alliance and Gasp.

34. Permanently enjoining Defendant Steven Troy Marshall from continuing to

withhold records from disclosure to the Environmental Defense Alliance and Gasp in

violation of Ala. Code 1975 § 36-12-40 will not disserve the public interest. Ala. Code

1975 § 36-12-40 permits citizens to learn about the activities and business conducted by

public officers, partly so that they may hold public officers to account for inappropriate

activities and decisions.

Count III - Claim for Nominal Damages

35. Plaintiffs incorporate by reference paragraphs 1 through 19 and 21 through

25 hereof.

36. Defendant Steven Troy Marshall’s failure to disclose those records withheld

from disclosure to the Environmental Defense Alliance and Gasp is beyond his authority

or based on a mistaken interpretation of law.

37. Plaintiffs are presumed to have suffered nominal damages as a result of

Defendant Steven Troy Marshall’s failure to disclose those records withheld from

14
 DOCUMENT 2

disclosure to the Environmental Defense Alliance and Gasp in violation of Ala. Code

1975 § 36-12-40.

Demand for Relief

Wherefore, Plaintiffs demand the following relief:

A. That the Court grant a judgment against Defendant Steven Troy Marshall in

his official capacity declaring that he has unlawfully withheld from disclosure records

requested by the Environmental Defense Alliance and Gasp on November 1, 2019;

B. That the Court grant a permanent injunction against Defendant Steven Troy

Marshall in his official capacity, and all other persons in active concert or participation

with him who receive actual notice of the injunction, from continuing to withhold from

disclosure records requested by the Environmental Defense Alliance and Gasp on

November 1, 2019;

C. That the Court award each Plaintiff nominal damages to be paid by

Defendant Stephen Troy Marshall in his individual capacity;

D. That the Court award Plaintiffs costs of this action to be paid by Defendant

Stephen Troy Marshall in his individual capacity;

E. That the Court award Plaintiffs reasonable attorney fees to be paid by

Defendant Stephen Troy Marshall in his individual capacity under the common benefit

doctrine; and

15
 DOCUMENT 2

F. That the Court award Plaintiffs such other and additional relief to which

they may be entitled.

Respectfully submitted,

s/ Haley Colson Lewis

Haley Colson Lewis (COL160)
Attorney for GASP, d/b/a/ Gasp
2320 Highland Avenue, South, Suite 270
Birmingham, AL 35205
Tel (205) 701-4277 Fax (205) 428-2182
Email haley@gaspgroup.org

s/ David A. Ludder
David A. Ludder (LUD001)
Attorney for Environmental Defense Alliance
Law Office of David A. Ludder, PLLC
9150 McDougal Ct.
Tallahassee, FL 32312
Tel (850) 386-5671 Fax (850) 999-6435
Email davidaludder@enviro-lawyer.com

16
 DOCUMENT 2

A
November 1, 2019

Delivered Via Certified Mail

Return Receipt Requested
No.7018 0360 0001 4409 6263

Hon. Steven T. Marshall, Attorney General

Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36104

Re: Request to Inspect and Copy Records

Dear General Marshall:

Pursuant to Ala. Code § 36-12-40, GASP and the Environmental Defense Alliance, both
Alabama non-profit corporations, request that you permit inspection and copying of all draft and
final records of communications, including intra-agency communications, letters, memoranda,
correspondence, facsimiles, electronic mail and text messages, calendar information, notes and
summaries of telephone conversations and meetings, and other records of communications
﴾including attachments﴿ between any agent or employee of the Office of the Attorney General
(including but not limited to Luther J. Strange, III, Steven T. Marshall, Kevin L. Turner, Robert
D. Tambling, and G. Ward Beeson) and any agent or employee of the following entities during
the calendar years of 2013 through 2019 concerning the business and activities carried on by the
agents or employees of the Office of the Attorney General regarding any contamination or
potential contamination of the environment in Jefferson County (including but not limited to the
35th Avenue Site and Pinson Valley Neighborhood site) or related matter, regardless of where or
how these records may be maintained or stored:

Office of the Attorney General (including, but not limited to, Luther J. Strange, III,
Steven T. Marshall, Kevin L. Turner, Robert D. Tambling, and G. Ward Beeson);

Balch & Bingham, LLP (including, but not limited to, Joel I. Gilbert, Mary F. Samuels,
Steven G. McKinney, S. Grady Moore, Michael J. Davis and Irving W. Jones);
Drummond Company, Inc. (including, but not limited to, David L. Roberson and Blake
Andrews);ABC Coke, a division of Drummond Company, Inc.;
 DOCUMENT 2

Alabama Office of the Governor (including, but not limited to, Robert Bentley, Kay Ivey,
Seth Hammett, Blaine Galliher, Jonathan Bargainer, and Carrie McCallum);

Alabama Department of Environmental Management (including, but not limited to,

Lance R. LeFleur and Vernon Barnett);

Alabama Environmental Management Commission (including, but not limited to, Debi
Thomas, H. Lanier Brown, W. Scott Phillips, James E. Laier, Samuel L. Miller, Terry D.
Richardson, and Mary J. Merritt);

U.S. Environmental Protection Agency;

Southeast Engineering & Consulting, LLC (including, but not limited to, Onis “Trey”
Glenn and W. Scott Phillips);

Blue Ridge Partners, LLC (including, but not limited to, Onis “Trey” Glenn and W. Scott
Phillips);

Alabama Legislators (including, but not limited to, Oliver Robinson);

U.S. Legislators (including staff);

City of Tarrant (including but not limited to Loxcil Tuck);

City of Birmingham (including, but not limited to, William Bell);

Alliance for Jobs and the Economy (including, but not limited to, David L. Roberson and
Mike Thompson);

Business Alliance for Responsible Development; and

Birmingham Business Alliance.

The requested records should be provided in their original format (e.g., PDF, Word, etc.), if
available, with all original metadata included.

This request is made to ascertain the official involvement of agents or employees of the
Office of the Attorney General in the aforementioned environmental matters with the foregoing
entities and their agents or employees. If you claim that any of the requested records are exempt
from disclosure, please state the basis for the claimed exemption and provide a listing of the
records claimed to be exempt, including date, author(s), recipient(s), and subject matter(s). You
need not produce any records previously produced to GASP on February 14, 2018.

2
 DOCUMENT 2

If you have any questions regarding this request, please contact both of the undersigned.

Sincerely,

Haley C. Lewis
Attorney for GASP
2320 Highland Avenue, South
Suite 270
Birmingham, AL 35205
(205) 701-4277

David A. Ludder
Attorney for Environmental Defense Alliance
Law Office of David A. Ludder, PLLC
9150 McDougal Ct.
Tallahassee, FL 32312
(850) 386-5671

cc: Public Relations Office

Executive Division
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36104

3
DOCUMENT 2

B
 DOCUMENT 2

C
December 23, 2019

Delivered Via Electronic Mail

G. Ward Beeson, III
Chief, Opinions Division
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36104

Re: Request to Inspect and Copy Records

Dear Mr. Beeson:

We are in receipt of your November 22, 2019 response on behalf of Attorney General
Steven T. Marshall to the November 1, 2019 request to inspect and copy records submitted to
General Marshall by Gasp and the Environmental Defense Alliance (the “Alliance”).

Gasp and the Alliance have requested that the Attorney General produce for inspection
the records described in the November 1, 2019 request. Upon inspection of those records, Gasp
and the Alliance will designate which records they want to be copied. Gasp and the Alliance
assure payment of copying costs and any mailing costs.

Your November 22, 2019 response suggests that Ex parte Gill, 841 So. 2d 1231 (Ala.
2002) requires that citizens requesting records under Ala. Code 1975 § 36-12-40 must identify
specific documents to be inspected and copied. We think you read too much into Ex parte Gill.
In that case, the citizen sought “to shift to the custodian of public writings the tasks of inspecting
them and identifying the ones to be copied” and the expense of copying and “to undertake the
burden and expense of mailing or otherwise delivering the copies.” The Court said that “any
inspection of the writings and any identification of the ones to be copied must be performed by
the citizen or his or her agent (simply another citizen) under such reasonable safeguards as the
custodian may impose for the preservation of the writings. Likewise, the burden and expense of
copying the writings and taking the copies must be borne by the citizen or his or her agent as
provided by law . . . or as required by such reasonable safeguards as the custodian may impose.”
Id. at 1234.

Unlike the citizen in Ex parte Gill, Gasp and the Alliance are prepared to undertake the
tasks of inspecting the records described in the November 1, 2019 request and to identify the
ones to be copied. In addition, Gasp and the Alliance are prepared to bear the expense of
 DOCUMENT 2

copying the records and either picking them up or having them delivered. To read Ex parte Gill
as requiring that citizens identify the specific records to be inspected and copied would severely
limit public access to public records and preclude citizens from learning the business and
activities of public officers, thereby completely frustrating the purpose of Ala. Code 1975 § 36-
12-40. It should be sufficient that citizens describe with particularity the records sought to
inspected, and following such inspection, to identify those specific records to be copied. Gasp
and the Alliance have described with particularity the records sought to be inspected. Following
that inspection, Gasp and the Alliance will identify the specific records to be copied.

Accordingly, Gasp and the Alliance insist that General Marshall produce for inspection
those records described in the November 1, 2019 request and permit Gasp and the Alliance to
take any copies thereof which they may designate.

Sincerely,

Haley C. Lewis
Attorney for GASP
2320 Highland Avenue, South
Suite 270
Birmingham, AL 35205
(205) 701-4277

David A. Ludder
Attorney for Environmental Defense Alliance
Law Office of David A. Ludder, PLLC
9150 McDougal Ct.
Tallahassee, FL 32312
(850) 386-5671