By Jessica Cooper

Lawmakers’ proposed amendment to Georgia’s First Offender Act would allow public officials who pled guilty of corruption to hide their criminal records from the public.

The change is contained in House Bill 909, which mandates automatic sealing of court records for all eligible individuals under the First Offender Act. The bill would erase the public-interest balancing test that judges currently use when determining whether to seal a criminal record. The amendment would deprive the public of access to information about crimes committed by people in positions of public trust. This runs afoul of the common law right of access to court records and Georgia’s long-established precedent of government transparency.

Jessica Cooper

Georgia’s existing First Offender Act allows a person who pleads or is found guilty of a non-violent crime and successfully completes their sentence to petition the court for a sealing order. The record can only be sealed if the public’s interest in the defendant’s criminal history outweighs the harm to the defendant’s privacy. In this respect, it is a second-chance law — making it easier to get a job, a loan, or secure housing without the stigma of a criminal conviction. As it stands today, the First Offender Act strikes an appropriate balance, giving deserving people a second chance without enabling people who abused positions of public trust to hide their criminal records of corruption or malfeasance from Georgia voters and taxpayers.

House Bill 909 would eliminate that balance by sealing criminal histories for every individual sentenced under the First Offender Act without any consideration of the public interest.

Georgia cases offer examples of why this would be deeply problematic. In Austin v. State, a dentist pled guilty to submitting false claims to Medicaid to receive payment for services he did not perform. The dentist petitioned to have his records sealed under the First Offender Act, but the court rejected his request because his “profession is one of such public trust, that his interest in having these documents sealed is far outweighed by the public’s interest in having the records available.” The Georgia Court of Appeals affirmed the trial court’s decision in 2017.

Lawmakers’ proposed amendment to the First Offender Act would eliminate the judicial discretion used in Austin v. State. House Bill 909 would erase from public view crimes committed by those employed in positions of trust, hiding guilty pleas for embezzlement, bribery, falsifying documents and more.

Automatic sealing would apply even in cases garnering lots of public interest. For example, attorneys Kenneth Chesebro, Sidney Powell, and Jenna Ellis all got first-offender status last year in plea deals taken in connection with the highly public prosecution of former President Donald Trump and more than a dozen co-defendants accused of interfering in the 2020 election in Georgia. Under existing law, Chesebro, Powell, and Ellis can petition to have their charges sealed upon completion of their sentences. If the amendment at the heart of House Bill 909 had been in effect at the time of the attorneys’ sentencing, their records would have been automatically sealed, despite the public significance of their election interference cases.

Automatic sealing of criminal records is in tension with the fundamental right of court access long recognized by the Georgia Supreme Court in decisions like Undisclosed LLC v. State (2017) which noted that “[t]he right of access to court records . . . is based on the common law and predates the Constitution.” Court access is especially important in cases involving public officers. The Georgia Constitution states: “Public officers are trustees and servants of the people and are at all times amenable to them.” In the words of the late Georgia Supreme Court Chief Justice Charles L. Weltner, this provision of the state Constitution means public officers “must conduct the public’s business out in the open.” Automatic sealing in first-offender cases conceals public officers’ breaches of trust — hiding that crucial information from the voters and taxpayers who depend on public officers’ honesty.

Courts have consistently protected the public’s interest in cases involving public officers. For example, in Hayes v. State, a major with the Cobb County Police Department was indicted for two counts of homicide, speeding in a construction zone, and driving too fast for conditions. The major ultimately pled guilty to speeding in a construction zone. The trial court, and later the Georgia Court of Appeals, rejected the major’s petition to have his records sealed, and instead recognized “the reasonable public interest in this case.”

Undoubtedly, public knowledge of criminal history can have an adverse effect on a person’s privacy and prospects. But in some cases, the public’s right to know is more important. By automating the sealing of first-offender case records, House Bill 909 removes judicial discretion and hides from Georgians those first-offender cases where public interest should prevail.

Jessica Cooper is a second-year law student at the University of Georgia and a member of the Georgia First Amendment Foundation’s Legislative Watch team.