How to get the public information you want: Guidance from an elected official

By Lisa Cupid

One area where my positions as a citizen and an elected official fully align is in my support for government transparency. Transparency helps citizens get information they need, and it also helps elected officials get out information about what we are doing, how we are doing it and why.

Lisa Cupid

The process of transparency is often adversarial. Instead of citizens and elected officials working together to get to the bottom of a matter, transparency is often hampered by a presumption of conflict that gets everyone off on the wrong foot. Requesters of information may think that elected leaders always have something to hide. Elected officials and even government staff may be frustrated by requests that seem too broad or seem to make demands without regard for courtesy.

Let me be clear: Information that is accessible to the public under Georgia law and the First Amendment to the U.S. Constitution must be provided by government entities without exception. Even if the request is broad or demanding. Still, if you are a citizen or journalist making a request, the way you ask for information can actually improve the likelihood of getting relevant information as soon as possible.

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Watch a video of Commissioner Cupid discussing the importance of good communication when seeking public information.

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So, what’s behind our transparency process problem? In my experience, there are a few causes.

There might truly be bad intent on behalf of those requesting information or those with a desire to withhold it. But this is actually the least common of all the causes I’ve witnessed.

  • More often, a request for information might take a long path to the right source. As an elected official, I often get requests for information from constituents, and while I am happy to help them, the quickest route would be to for them to walk into or call the county clerk’s office. Making the request of those closest to the documentation will almost always yield a more thorough and faster response.
  • A problem with transparency also might be caused by a downright lack of knowledge about the law. Georgia’s Open Records Act and Open Meetings Act are long and complex. That’s why the Georgia First Amendment Foundation produces a citizen’s guide to the state’s Sunshine Laws. Even though I am a foundation board member, lawyer and two-term elected official, I have found myself in the awkward position of not knowing that an action taken by the board of commissioners was in violation of the Open Meetings Act. I’m confident many other public officials have had the same experience.
  • By far, most transparency issues emerge from miscommunication or from challenging exchanges between those seeking information and those charged with providing it.

So, what can we do to smooth and simplify the flow of public information?

If you are a citizen or journalist, ask for help — not just in receiving information, but also in how to ask for it clearly and concisely. Go to the clerk’s office, email the planning department, call the staff person who administers a program in which you are interested. Tell them what you would like to know and ask for guidance on the most efficient way to get that information. Most of us in public service feel we are called to help. Requests framed with that understanding appeal to the very core of why we are in our respective positions: to serve the public good.

Become versed in Georgia’s open government laws so you can identify whether access to information is being intentionally or ignorantly subverted. Check out the foundation’s tips for requesting public information, as well as our Red Book, A Citizen’s Guide to Open Government, mentioned above. In addition, look for opportunities for in-person training; our foundation experts lead or participate in several government transparency training sessions throughout the year. If you don’t already receive our training schedules and updates, email us at info@gfaf.org and ask to be added to the list.

If you are a government employee or elected official, seek out information and training sessions — including refresher courses — to ensure you understand transparency laws and have current knowledge. Again, the foundation is a great resource. Check out not only the Red Book, but also the Blue Book, Georgia Law Enforcement and the Open Records Act. The foundation provides in-person open government training to agencies, as well; email us at info@gfaf.org to learn more.

In today’s climate of political contentiousness and “fake” news, it can be wise to go to the original source of public information. The foundation’s efforts help support a free flow of facts that creates more informed citizens and more engaged and responsive elected officials. Whether you’re an interested citizen, an elected official — or, as in my case, both — that is help we all can benefit from.

Lisa N. Cupid, a GFAF board member, is an attorney and a Cobb County commissioner representing District 4.

Updated 2018 Legislative Watch tracks lottery bill and other transparency issues

A bill that would allow lottery winners to remain confidential gets a negative rating on our updated Legislative Watch of bills making their way through the Georgia General Assembly.

Senate Bill 331 would shield information on people receiving significant sums of state money. The Georgia First Amendment Foundation believes the proposal, if successful, would set a dangerous precedent. We see no potential improvements that would remedy this bill.

Other legislative measures we’re watching include Senate Bill 407, which would broaden the ability of trial courts to retroactively seal court records of criminal defendants sentenced under the First Offender Act. House Bill 716 would allow police to make a pre-arrest diversion for drug and mental health treatment; it is unclear whether there would be any public record of this exercise of police power. We have a negative view of both these bills, as well.

Get more details on these proposals and several others we’re tracking in our full Legislative Watch. Plus, see why the foundation believes the secrecy surrounding Georgia’s bid for Amazon keeps taxpayers in the dark about how the state is spending their money to woo business.

Atlanta mayor to address 1st Amendment conference co-sponsored by the foundation

Atlanta Mayor Keisha Lance Bottoms will be the keynote speaker at the Feb. 23 Georgia Bar Media & Judiciary Conference focused on First Amendment issues and government transparency.

Keisha Lance Bottoms

Bottoms, who participated in the conference as a candidate last year and took office Jan. 2, is expected to address her administration’s perspective on government openness and accessibility to citizens and the media.

The Georgia First Amendment Foundation is a co-sponsor of the conference, scheduled 8:30 a.m.-5:30 p.m., Friday, Feb. 23, at the State Bar of Georgia Conference Center, 104 Marietta St. NW in downtown Atlanta. The annual gathering, in its 27th year, draws judges, attorneys, journalists and citizens. On the agenda:

  • A discussion of changes ahead for the Georgia Supreme Court and the state’s judicial system. Panelists will include Presiding Justice Harold Melton and retired Chief Justice Leah Ward Sears, among others.
  • A forum of candidates in the race for the governor’s office.
  • A conversation with U.S. Supreme Court experts and advocates on how gerrymandering and other First Amendment issues are likely to fare in the Court this term — and the possible ramifications for Georgia.
  • An exploration of cultural challenges to the First Amendment emerging from generational changes, the power of “fake news” and more.
  • Scenarios of how sexual harassment claims could play out in companies, courts and the halls of government in Georgia.

In addition, Georgia Public Broadcasting’s “Political Rewind” host Bill Nigut and his team of pundits and prognosticators will talk politics in a session broadcast live from the conference.

Find the complete agenda, a full list of sponsors and registration information at http://www.iclega.org/programs/9778.html. The fee for non-lawyers is $25. Attorneys may register in advance for $155 or at the door for $230; attorneys will receive continuing legal education (CLE) hours for attending. The admission fee includes lunch and parking.

Ga. Supreme Court order allows judicial discretion over electronics in courtrooms

High court decision keeps current recording rules in place and authorizes trial judges to permit use of electronic devices for non-recording uses.

The Georgia Supreme Court on Tuesday approved a rule change that would generally keep existing protocols in place for audio and video recording in courtrooms, as well as give judges discretion about whether people can use electronic devices to type and text in their courtrooms.

The Court’s order, which takes effect May 1, keeps the so-called Rule 22 largely the same for professional media and citizens using cameras in courtrooms. As happens today, journalists and members of the public must request permission to record or photograph judicial proceedings. A judge must provide detailed rationale for denying cameras in the courtroom — and only after holding a hearing on the issue.

The new rule gives a judge leeway to let citizens use phones, computers and tablets in the courtroom to type and text, but the judge has to specifically permit it — orally, in writing or by posting such a policy in their courtroom. Otherwise, the public has to keep electronic devices turned off in the courtroom.

At the same time, the rule gives attorneys appearing before the court wide latitude to use electronic devices for everything from audio and video recordings to taking notes. A lawyer must announce to the courtroom that a recording is being made, and the recording can only be used afterward for legal proceedings.

“On the whole, the new Rule 22 aligns with the Georgia First Amendment Foundation’s request that courtrooms in the state remain open to the public,” said Richard Griffiths, president of the foundation’s board of directors.

“We wish the rule had embraced a system that automatically allowed courtroom observers to type and text in courtrooms in a non-disruptive way, but the foundation appreciates the Supreme Court’s decision to reject the outright ban that had been proposed by others,” Griffiths said. “The new rule makes clear that individual judges may routinely allow this use of technology in their courtrooms. That’s a step in the right direction.”

2018 bills we’re watching now

We’re tracking government transparency legislation as the 2018 General Assembly picks up this month, and here are some of the most important ones we’re watching, both good and bad. Click here to read our full track list.

SB 331 –  This bill would shield information on lottery winners receiving significant sums of state money.

SB 311 -This bill appears to be a well-intentioned effort to allow public access to courtroom recordings made by court reporters, but it sweeps too broadly and would make all court records subject to the Open Records Act and, therefore, the Act’s exemptions, fees and time requirements.

HB 15 – The original bill required electronic filing of most civil court records, but contained no provision to protect public access to such filings in a timely way, either at the courthouse or electronically. Instead, it arguably made court records subject to the Open Records Act, the three-day waiting option and the Act’s exemptions.

Ga. Supreme Court to hear case on Open Records exemptions

GFAF argues against a restrictive interpretation of state Sunshine Laws.

The Georgia Supreme Court will hear arguments on Monday about whether public information that qualifies for an exemption under the Open Records Act must be withheld — even if a government agency wants to disclose it.

The Georgia First Amendment Foundation believes that the Act is intended to provide broad access to public information and allows agencies to opt out of exemptions. Earlier this week, GFAF joined three other organizations in a friend-of-the-court brief in the case — Board of Regents of the University System of Georgia and Campaign for Accountability v. Consumer Credit Research Foundation — asking the Supreme Court to overturn an appellate decision that, if upheld, could hobble Georgia’s Open Records Act.

In the brief, the Reporters Committee for Freedom of the Press, the Georgia Press Association, the Atlanta Journal-Constitution and GFAF sided with the Board of Regents and the Campaign for Accountability.

The case began with a lawsuit filed by the Consumer Credit Research Foundation. CCRF, which is funded by the payday lending industry to support academic research on consumer finance, sought to block an open records request filed by the Campaign for Accountability. The Campaign for Accountability was asking for correspondence between CCRF and a Kennesaw State University professor who had received CCRF research funding.

Kennesaw State said it was willing to release the correspondence. CCRF then sued to block the release. A Fulton Superior Court judge ruled for Kennesaw State, concluding that although academic research exemptions gave KSU the authority to withhold the information, the university also had the right to release it.

The Court of Appeals of Georgia reversed that decision, relying heavily on a 1995 case involving tax information that determined the state Open Records Act “mandates the nondisclosure of certain excepted information.”

The amicus brief, authored by GFAF board member Peter Canfield and three other attorneys from Jones Day, argues that the Court of Appeals misinterpreted the 1995 case, Bowers v. Shelton. The flawed result: a restrictive construction of the law suggesting that a public record that qualifies for exemption cannot be made available through an Open Records request — even if the agency wants to release it.

The Georgia First Amendment Foundation believes the appellate court’s narrow interpretation conflicts with the Open Records Act’s text, Georgia case law and the General Assembly’s intent. It also would make Georgia a national outlier. As the brief explains, almost every state takes the position that public records should be accessible, and where exemptions exist, public authorities may withhold information but are not required to do so.

live webcast of oral arguments is scheduled for Monday, Feb. 5 at 10 a.m.

GFAF’s Legislative Watch: Bad bills and unintended consequences

By Tom Clyde

Protecting Georgians’ right to know about their government requires particular diligence this time of year. The General Assembly is in session.

The Georgia First Amendment Foundation’s mission to watch for and fight against any legislative reduction in the public’s access to government records, meetings and proceedings is one of our most important responsibilities. But the job is not easy. Bad legislation comes in many forms.

Sometimes it looks like Senate Bill 331, which proposes letting the Georgia Lottery Corporation keep the identity of lottery winners secret forever. Clearly, letting a government agency hand out millions of dollars to private citizens with no public record is a bad idea.

More often, however, a bill’s negative impact on transparency is not readily apparent. In good faith, a lawmaker may propose legislation without even anticipating how it could erode government transparency. These are the situations in which the foundation’s 24 years of experience encouraging greater transparency and explaining the unintended consequences of legislative actions comes into play. Our most important roles during the General Assembly session are as watchdog and educator. We look for any proposed legislation that could reduce Georgians’ access to the workings of their government, and we flag these problems for lawmakers.

Here’s a current example. Senate Bill 311 appears to be a well-meaning effort, from a frequent advocate for government openness, to make the audio recordings of court reporters available to the public.  The bill seems to be aimed at fixing a problem created when the Georgia Supreme Court recently held such recordings are not official court records and, therefore, are not required to be made available to the public. The effect of the Court’s decision has broad implications, but one clear outcome has been that producers of popular courtroom podcasts have no guaranteed access to recordings — usually paid for by taxpayer dollars — that provide audio records of criminal trials.

But in an effort to fix that problem, Senate Bill 311 would radically change the way citizens get court records — all court records, not just recordings. The bill would bring court records under Georgia’s Open Records Act, which, unfortunately, is littered with exceptions, fees and opportunities for delay. The bill needs to be narrowed under the principle of “do no harm.” Otherwise, we are better off with our current laws. We will work with the Legislature to shape the bill so it more closely aligns with First Amendment standards.

Thank you for your support of the foundation and our mission. Know that we are watching and will keep you posted on what’s happening under the Gold Dome. We appreciate that you care about government transparency as much as we do.

Tom Clyde, a GFAF board member and co-chair of the foundation’s Legal Committee, is a First Amendment attorney and partner at Kilpatrick Townsend.

Register now: GFAF Legislative Breakfast, Feb. 1

Join us for the Georgia First Amendment Foundation’s annual Legislative Breakfast, where public officials, newsmakers and members of the media will join in a discussion of open government issues emerging in the 2018 session.

2018 GFAF Legislative Breakfast

Co-sponsored by the GSU Chapter of the National Lawyers Guild

7:30-9 a.m., Thursday, Feb. 1

Georgia State University College of Law • Knowles Conference Center

85 Park Place NE • Atlanta, GA 30303

The event is free for members and $10 for nonmembers. Register now. 

Panelists:

  • State Rep. Wendell Willard, chairman of the House Judiciary Committee
  • Cobb County Commissioner Lisa Cupid
  • CNN Executive Editor Samira Jafari
  • First Amendment Attorney Tom Clyde of Kilpatrick Townsend
  • First Amendment Attorney Peter Canfield of Jones Day (moderator)

Among topics for discussion: courtroom recordings, police body camera videos, electronic court filings, judicial watchdog transparency and more.

The GSU College of Law is at the corner of John Wesley Dobbs Avenue and Park Place in downtown Atlanta. Visitor parking is available for $7 in Deck M (entrance on Auditorium Place). Also just a block from Marta’s Peachtree Center Station. Detailed directions can be found at http://knowlescenter.law.gsu.edu/contact-us/

 

Georgia’s 2017 right-to-know milestones

The public’s right to know in Georgia ended 2017 with a mixed scorecard.

On the plus side, the state’s high court affirmed that Northside Hospital and others similarly organized are subject to open records laws. Georgia senators decided to join their House counterparts, allowing video transmissions of committee meetings for the first time, starting in 2018.

But 2017 also had some setbacks. A jury found a citizen journalist guilty of a misdemeanor for an incident that arose from her recording of a political rally. A court ruled that unfiled court reporter recordings are not public records, a setback for legal affairs podcasts. And a remake of the state’s judicial watchdog appears to leave it less transparent, not more open, as legislators had promised.

Our year in review includes a detailed look at events that had an impact on public access and government transparency statewide, and how the Georgia First Amendment Foundation fought for citizens’ right to know.

January

February-March

  • Throughout the General Assembly session, the foundation encourages lawmakers to tread lightly on Georgians’ rights to access government records, meetings and proceedings and to practice free speech. The foundation engages with lawmakers on legislative proposals related to electronic filing of court records; redaction of portions of state Division of Family and Children Services records; reconfiguration of the Judicial Qualifications Commission; drone regulations; and so-called “upskirting” restrictions. (For a full recap, check out our post-session Legislative Watch.)

April

  • Georgia House of Representatives sends a remake of the Judicial Qualifications Commission to the governor to sign. Supporters say the revamp increases transparency and reins in an overly aggressive judicial watchdog. Critics say giving lawmakers control over the commission will politicize it.
  • The Atlanta Press Club honors longtime foundation Executive Director Hollie Manheimer with its Impact Award.

May

June

July

  • The Judicial Qualifications Commission remake becomes state law, as does new guidance for drone use and other measures passed by the 2017 General Assembly.

September

  • The newly remade Judicial Qualifications Commission dismisses a case against a Georgia judge whose actions led to jailing of the Fannin Focus publisher and his lawyer. The commission discharged the complaints after an investigation that did not include contacting those who filed complaints.

October

  • The state Senate agrees to permit video transmission of its committee hearings.
  • The foundation honors The Carter Center’s Global Access to Information Program and the late Fulton County Superior Court Judge Stephanie B. Manis at its 2017 Weltner Banquet.
  • A case involving the Undisclosed true-crime podcast ends with a Georgia Supreme Court ruling that unfiled court reporter recordings are not public records. The foundation opposes the Court’s position and suggests an alternative approach.

November

  • The Georgia Supreme Court affirms government transparency laws apply to Northside Hospital in a case the foundation closely watched and weighed in on through court filings. The ruling supports the principle that publicly created institutions are bound by state open records laws, even if they reorganize as nonprofits. In an indication of the statewide impact, the Savannah Morning News soon cites the ruling in its ongoing efforts to get records from a local hospital.

December

Help us keep defending your right to know by making a year-end, tax-deductible donation today. Your contribution will enable the foundation to capture generous matching funds from CNN — meaning you can double the impact of every dollar you give.

Ga. Supreme Court affirms government transparency laws apply to Northside Hospital

Fulton County’s Northside Hospital is subject to the state’s Open Records Act, according to a Nov. 2 opinion from the Georgia Supreme Court that sends the case back to the trial court.

The justices made clear that the private, nonprofit hospital does its work “on behalf of” the governmental authority that created it in 1991 — making it accountable to the public.

If Northside seeks to shield records from public disclosure, the burden will now be on the hospital to prove that the records do not relate to that mission. The justices directed the trial court to make that determination for the particular financial records requested in the case.

“The Georgia First Amendment Foundation is delighted that the Georgia Supreme Court followed precedent and held that Northside Hospital is bound by the principles of open government transparency,” said Georgia First Amendment Foundation board member Richard T. Griffiths. “Transparency is the best way to maintain accountability to the taxpayers for whom Northside was founded — who paid for it and still effectively own it.

“Northside is a $2 billion-a-year institution in Fulton County,” Griffiths said. “Citizens need to be able to fully understand what’s happening with its operations and monitor whether it continues to focus on ‘the public health needs of the community,’ as was mandated by the authority’s resolution that created Northside Hospital.”

The Court also raised additional questions about Northside Hospital’s claim that “nothing it does is for or on behalf of the Authority.”

“Completely apart from the requirements of the Hospital Authorities Law, any suggestion that a lease of an exceptionally valuable hospital and related assets for minimal rent and the promise to operate the hospital wholly for its own purposes renders Northside simply an ordinary tenant might well raise constitutional questions,” the justices stated in Thursday’s opinion.

“We at the Georgia First Amendment Foundation believe government agencies should not able to spin off private entities — just as the Fulton County Hospital Authority did in creating Northside — so that they can avoid public records scrutiny,” Griffiths said.  “For this reason, we are delighted by the clear language of the Georgia Supreme Court decision.”

Read more about the Northside case, including a brief history of the fight for transparency into the operations of public hospital authorities.

 Check out media coverage of the Georgia Supreme Court decision: 

For more information contact John McCosh at mccosh3@comcast.net