Court rules investigation records, once released, can’t be kept from the public

Investigation records released to the public can’t later be restricted from public access, according to an Oct. 14 ruling in Cobb Superior Court.

The ruling requires the Cobb County Sheriff’s Office to provide to WXIA-TV previously released records about inmate deaths at the Cobb County Adult Detention Center.

The decision by Cobb Superior Court Judge A. Gregory Poole is a win for government transparency. Poole’s ruling means that once files related to an investigation are made public, those records no longer qualify for an exemption under the Georgia Open Records Act.

The Georgia First Amendment Foundation joined with other government transparency advocacy groups to file a friend-of-the-court brief supporting WXIA’s argument that the Atlanta broadcaster was entitled to investigation records previously released to other media outlets. WXIA successfully argued that the records could not be clawed back from public access simply because they also were being used in a separate investigation into another inmate death at the detention center.

Read coverage of the case by WXIA and the Atlanta Journal-Constitution.

 

Law enforcement and the First Amendment: What you need to know

The Georgia First Amendment Foundation’s Law Enforcement and the First Amendment virtual training session on Oct. 9 explored ways the First Amendment protects the public’s right to record police; the rules of engagement when journalists and citizens record police in action; and how free speech rights come into play in encounters between the public and police.

Watch the video to get the facts from our panel of experts:

  • Vic Reynolds, Director, Georgia Bureau of Investigation
  • Zoe Bambara, Community Organizer & Activist
  • Sarah Brewerton-Palmer, First Amendment Attorney, Caplan Cobb LLP
  • Clare Norins, Director, First Amendment Clinic, UGA School of Law
  • Gerry Weber, First Amendment Attorney, Gerry Weber LLC and Southern Center for Human Rights

Want to know more? Check out these additional resources:

Young activist Zoe Bambara sparked powerful change through peaceful protest

Zoe Bambara’s determination to speak up about injustice turned her, at age 19, into a community organizer and activist. She understood her First Amendment right to peaceful protest, although she had to learn the logistics of how to get demonstrators into the streets safely and legally. She was a quick study.

Over three days, using community connections and social media, Bambara put together what became Atlanta’s first large Black Lives Matter protest of 2020, drawing thousands of people to downtown Atlanta on May 29 to march from Centennial Olympic Park to the Capitol to decry the senseless killings of Black women and men across America. It launched a local movement that continues to spark change. Two months after that first large protest in Atlanta, Georgia’s first hate crimes law took effect. Bambara, a freshman at Morris Brown College, says her work has only just begun.

Nineteen-year-old activist Zoe Bambara helped organize protests against racial injustice.

Q: Why did you decide to organize the protest on May 29? What was the catalyst?

A: It’s representation that really matters to me. And I wasn’t seeing a lot of marches that were dedicated to Breonna Taylor. Back in May, her name wasn’t really out there like it is now. Thank God that it’s out there now. The May 29 march was for Breonna Taylor because nobody knew her name like they should have. And [Taylor’s shooting death in March during a police raid of her apartment in Louisville, Kentucky] had happened two months prior. It was very important to me. I always stick up for Black women.

Q: How did you figure out the right way to organize a protest?

A: My mom, honestly. I was like, ‘Mom, can you help me out? Do you know who I should talk to?’ Atlanta is so small that everybody knows somebody. My mom has this group of girlfriends. They’ve known each other since they were about 12. And one of them, I call her my aunt, she works for the city. My mom told me to call her, and I did, and she said, ‘Oh, yeah, you need a permit. Call the mayor’s office.’ And then I just tried to figure it out. My mom, she walked me through everything. Three other people I know helped organize. I had my mom, and my mom knew what she was talking about. Of course, social media helped, as well.

Q: Protests were already taking place in other cities. Did you learn from those demonstrations?

A: Just seeing how everything was happening over the course of a few years, seeing what happened in Ferguson [Missouri] and what was happening in Portland and all these different cities, I learned and adapted. I thought, OK, I know we need water. We might need first-aid kits. I was calling everybody.

Q: Did you look around on May 29, and think, ‘What have I done?’

A: I’m so out of shape. So, we were walking, and I was lagging. I looked ahead of us. And then I looked behind us. I was like, ‘Oh, my God,’ because there were people already at the Capitol, and there were still mountains of people behind us. And then my cousin texted me, and was like, ‘It’s on the news, and they say that there’s 5,000 people out there!’ Then it hit me, and I cried. It was more out of relief, because I literally didn’t sleep for two to three days. I just wanted to make sure I did it right. I just wanted to make sure that I followed all rules and laws and guidelines to make sure that nobody, you know, got hurt or anything like that. So, I was stressed out for those three days. But when I saw how peaceful it was, and how it was portrayed, I was very, very proud.

Q: Is there a history of activism in your family?

A: My grandmother [author Toni Cade Bambara] was an activist. She called herself a cultural worker and a community organizer, and she was a writer. She was a professor at Spelman College. She focused on the issue of roles when it came to Black women in the civil rights movement. Pretty much in every revolution, Black women are on the front lines.

Q: What’s next for you?

A: I think this is definitely going to be my purpose. I love waking up in the morning and doing this. It’s kind of hard being as young as I am because people don’t really want to take me seriously. They tell me that people in this movement come and go. But I’m not budging.

The Georgia First Amendment Foundation is recognizing Bambara as a First Amendment Hero at our virtual 2020 Weltner Freedom of Information Celebration on Oct. 15.

Georgia Supreme Court stays ahead of the pandemic — to the public’s benefit

Justices’ foresight in creating a pandemic plan has kept Georgia courts operational and accessible to the public during COVID-19. We applaud the Georgia Supreme Court’s leadership at our 2020 Weltner event, happening online Oct. 15.

By Peter Canfield and Richard T. Griffiths

Across the country courts have struggled with accommodating public access to court proceedings during the pandemic, but not the Supreme Court of Georgia.

Over a decade ago when then Chief Justice Leah Ward Sears handed junior Justice Harold D. Melton the assignment to come up with a pandemic plan for Georgia’s courts, he admits he was skeptical.

“You know, anybody who is doing work, anything on a daily basis, can think of things that they need to be doing instead of planning for something that may or may not happen,” Melton recalled.

But his views changed when he started working on the pandemic plan.

In 2009, Melton and a volunteer group of lawyers and public health experts completed a 177-page Georgia Pandemic Influenza Bench Guide, updated and revised in 2018, that, this spring, allowed now Chief Justice Melton to act with speed and clarity in response to the COVID-19 coronavirus pandemic.

“When the pandemic hit, there was a great deal of panic initially, and it was immeasurably comforting to know that there had been some intentional thought and planning that had taken place out of the panic mode,” Melton said. “It got us going until we could get our COVID sea legs underneath us.”

And that time and planning has allowed the Court to preserve and protect public transparency.  In every emergency order and extension issued since March, Melton and the Court have worked hard to keep Georgia’s courts open and accessible virtually during the COVID-19 emergency, not just for judges, lawyers and litigants, but also for journalists and the public. In contrast to those of other states, the Georgia Supreme Court’s orders permitting judicial business to proceed online have been carefully written to ensure that the public is afforded notice and an opportunity to attend.

That’s in keeping with Georgia judicial tradition.

More than 40 years ago, the Georgia Supreme Court made the state one of the first in the country to permit cameras in its courtrooms.  Then Chief Justice H.E. Nichols reasoned, “Our courts don’t belong to our judges or our lawyers or our litigants. They belong to the people.”

And the Court has reinforced that view in the years since with strong reversals of lower court decisions that sought to close court proceedings and records. “Like a candle,” the Court has said, “court records hidden under a bushel make scant contribution to their purpose.” “This court,” it has explained, “has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua nonof an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.”

Melton channeled this long-standing policy and sentiment this spring by ensuring that as Georgia courts moved to virtual proceedings, the public moved with them. He’s grateful Georgia was prepared, especially because he can recall thinking that the pandemic plan he worked on a decade ago was unlikely to be needed. Melton modestly admits the experience has taught him a valuable lesson.

“I still wonder if I had been in the [then] chief’s spot, would I have taken the initiative to create this commission to plan ahead? And I don’t know that I would have,” Melton said. “I do think it is good for public officials to think about the things that you hope don’t happen.”

The Georgia First Amendment Foundation and its annual Weltner Freedom of Information event are dedicated to applauding those whose work has demonstrated the importance and power of First Amendment principles foundational to our democracy, especially in this unparalleled year.

The Georgia Supreme Court certainly fits that description and will be honored at this year’s Oct. 15 virtual Weltner event as a First Amendment Hero. Unlike a number of other courts across the country, which have found protecting public access now too difficult, the Court has continued to honor in deed the constitutional command recognized by the event’s namesake, the late Chief Justice Charles Weltner, “Because public men and women are amenable ‘at all times’ to the people, they must conduct the public’s business out in the open.”

Peter Canfield is a founding board member and Richard T. Griffiths is president emeritus of the Georgia First Amendment Foundation.

Register now for GFAF’s annual Weltner Freedom of Information celebration

Attendees to our virtual event will participate in our tribute to First Amendment heroes, preview the foundation’s legislative agenda and gain exclusive access to a bonus training event on law enforcement and the First Amendment.

Join the Georgia First Amendment Foundation for our virtual 2020 Charles L. Weltner Freedom of Information event from 1-2 p.m. on Oct. 15.

REGISTER NOW

Our 19th annual Weltner event will commemorate how First Amendment rights have helped shape this unprecedented year. We also will look ahead to our legislative agenda and initiatives to protect and expand government transparency, accountability journalism and free speech in Georgia in 2021 and beyond.

Commemorating this year’s First Amendment heroes

In a break from tradition, we are not naming a 2020 Charles L. Weltner Freedom of Information honoree because of the unparalleled circumstances of the pandemic. Instead, we are applauding those whose work has demonstrated the importance and power of First Amendment principles that are foundational to our democracy, particularly in this challenging year. During our virtual event, we will recognize as 2020 First Amendment heroes:

  • The Supreme Court of Georgia for vision, preparation and leadership that have allowed courts in our state to remain operational and open to the public during the COVID-19 coronavirus pandemic.
  • The late state Rep. Jay Powell for ushering an expansion of Georgia’s Sunshine Laws through the General Assembly in 2012. The resulting laws improved citizens’ access to their government and established a legal framework for the virtual public meetings that have become so essential this year.
  • Nineteen-year-old community organizer and activist Zoe Bambara, who leveraged our right “peaceably to assemble” by helping organize protests in late May calling for an end to police brutality and discrimination. The protests raised awareness and sparked change; two months later, Georgia’s first hate crimes law took effect.

We also will preview the foundation’s legislative agenda for the 2021 General Assembly session; celebrate the life and legacy of the late U.S. Rep. John Lewis, a former Weltner Award honoree; and pay tribute to long-serving foundation member Tom Budlong, who died this year.

In addition, we’ll auction a one-of-a-kind cartoon from Pulitzer Prize-winning Atlanta Journal-Constitution editorial cartoonist Mike Luckovich — framed and ready to hang on your wall.

Bonus training event: Law Enforcement and the First Amendment

Recordings of police activities have become catalysts for change. How does the First Amendment protect citizens’ right to record police on the job? What rights do the public and the media have to access video from officer body cams and other official sources? What are the rules of non-engagement when journalists and citizens record police in action? How do free speech rights come into play in encounters between the public and police? On the panel:

  • Vic Reynolds, Director, Georgia Bureau of Investigation
  • Zoe Bambara, Community Organizer & Activist
  • Sarah Brewerton-Palmer, First Amendment Attorney, Caplan Cobb LLP
  • Clare Norins, Director, First Amendment Clinic, UGA School of Law
  • Gerry Weber, First Amendment Attorney, Gerry Weber LLC and Southern Center for Human Rights

Register now for this free hour-long training event at 1 p.m. on Oct. 9.

Your support matters more than ever

Our annual Weltner event is the greatest source of regular financial support for the foundation. 2020 has highlighted the crucial role our organization plays in protecting and expanding the public’s right to know in Georgia. We’ve educated elected officials on keeping meetings accessible to the public during the pandemic. We’ve pushed for greater transparency in public health data. We have helped journalists understand their rights when covering protests. And we have called for police departments across the state to adopt Citizens’ Right to Record policies.

This is all possible because of backing from our members and donors. Here are three ways you can support the foundation today:

  1. GFAF members have free access to both our Weltner celebration on Oct. 15 and our Law Enforcement and the First Amendment training event on Oct. 9. Become a member.
  2. Buy a $50 ticket to our 2020 Weltner event and also receive free access to the Oct. 9 training session.
  3. Donate to support our work to protect and expand Georgians’ right to know.

We look forward to seeing you online for our 2020 Weltner events!

Foundation urges high court to secure free speech protections in Georgia

The Georgia First Amendment Foundation has partnered with UGA School of Law’s First Amendment Clinic in urging the Georgia Supreme Court to correct a lower court decision that weakens free-speech protections in Georgia.

The friend-of-the-court brief filed July 23 in the case ACLU v. Zeh argues that the Court of Appeals of Georgia failed to apply the “actual malice” standard when determining whether a defamation lawsuit survived a motion to strike under the state’s anti-SLAPP statute.

Strategic lawsuits against public participation, or SLAPPs, once emboldened litigants seeking to use groundless defamation and other claims to chill free speech in Georgia. In 2016, the Foundation supported efforts by CNN and other media companies to curb SLAPPs in Georgia. We recognized the Motion Picture Association of America for working to educate and encourage state lawmakers to institute an anti-SLAPP statute. The resulting law was the most effective legislative protection of free speech rights in Georgia in 20 years.

In ACLU v. Zeh, the lower court ruling erodes the strength of that law, chilling the right to speak or report on allegations made in legal proceedings, or on legislative activities and other newsworthy public affairs. We believe allowing the lower court ruling to stand would inhibit newsgathering, reporting and public debate.

Go to the First Amendment Clinic’s website for background on the case and a summary of the legal arguments.

Civil rights leader U.S. Rep. John Lewis, 2012 Weltner Award honoree, dies at 80

U.S. Rep. John Lewis, an advocate for citizens’ right to access and shape American democracy, died Friday after battling cancer. He was 80.

Lewis represented Georgia in Washington for more than 30 years and came to be known as the “conscience of the Congress.” He fought for voting rights and equality and promoted and practiced the First Amendment right to peaceful protest. The Georgia First Amendment Foundation honored Lewis with our Weltner Freedom of Information Award in 2012.

A statement released by the Lewis family early Saturday said, “It is with inconsolable grief and enduring sadness that we announce the passing of U.S. Rep. John Lewis. He was honored and respected as the conscience of the US Congress and an icon of American history, but we knew him as a loving father and brother.

“He was a stalwart champion in the on-going struggle to demand respect for the dignity and worth of every human being,” the statement said. “He dedicated his entire life to non-violent activism and was an outspoken advocate in the struggle for equal justice in America. He will be deeply missed.”

Lewis was selected as GFAF’s Weltner Award honoree because his life and career embodied a belief that government of, by and for the people must be open and accessible to the public.

First Amendment rights spark justice and seed change in Georgia

By Lisa N. Cupid

Georgia’s new hate crimes law is welcome and long overdue. But as the headlines marked this historic moment last week, I kept thinking about what finally forced change in Georgia. The shooting death of Ahmaud Arbery and the subsequent delay of justice were just too horrifying to ignore. That injustice was brought to light and the seeds of change were sown because we are empowered by First Amendment rights.

The shameful case of an unarmed Black man shot by white pursuers as he jogged through a Brunswick neighborhood was a stark reminder that we are far from the equality that a robust democracy can provide. Despite civil rights gains of the past 60 years, we still have not protected, respected and advocated for all of our citizens with the same diligence. Arbery’s killing laid that bare.

But the Arbery case — and the cases of George Floyd’s death in Minneapolis and Breonna Taylor’s death in Louisville, Kentucky — also remind us that democracy, despite its flaws, comes with checks and balances. Democracy is designed to be truly of the people. When Americans want change, they have a First Amendment right to peaceably assemble and to petition the government for a redress of grievances. The last few weeks have undeniably demonstrated the power of our right to protest.

Lisa Cupid

The First Amendment also protects the right to record in public spaces, whether what’s being captured on video is police activity, as happened with Floyd’s killing, or the actions of public officials in public buildings, a right reinforced by a recent ruling in the U.S. District Court in Macon.

And here’s another way the First Amendment and companion laws in Georgia ensure that our elected government belongs to every citizen — and enable the justice that stems from that. The public and the press have a legally protected right to know what elected officials are doing with the power granted to them by the people.

The checks and balances that first brought scrutiny in the Arbery case involved the public’s access to government records. New York Times journalist Richard Fausset in April filed an open records request that revealed a memo from the then-prosecutor on the case. In the memo, the prosecutor detailed why he believed there was not sufficient probable cause for arrest warrants.

The story got national attention, and, a few days later, the release of a video of Arbery being shot sparked international outrage. The Georgia Bureau of Investigation ultimately arrested three men, all of whom were indicted on murder charges on June 24.

As an elected official on the Cobb County Commission, I believe that government transparency created by open records and open meetings adds accountability that is beneficial both to the voters who put me into office and to me. The public expects that they will have access to information about what I and other commissioners do, and I take every action with the knowledge that the public has that oversight.

As an elected official, I also know that enabling public access can be cumbersome and sometimes confrontational. But in a democracy, it is essential. That’s why I joined the Georgia First Amendment Foundation’s board of directors in 2016. That’s why in a world filled with so much need and so many opportunities to make a difference, government transparency is a cause worth my time and energy.

As the African-American mother of two young sons, I understand and fear the consequences of having officials empowered by the people who take power from the people instead. That’s why the on-the-record accountability of open government matters.

In the Arbery shooting death, public records opened the door to justice. My hope is that we will get to a place in our democracy where government officials’ commitment to transparency is about more than just answering records requests in three days or guaranteeing that citizens can attend meetings. It is operating with the public’s best interests in mind, with a commitment to justice and with the knowledge that the people are paying attention.

Lisa N. Cupid is a Cobb County commissioner and a board member of the Georgia First Amendment Foundation.

RECAP: Deciphering public health data about COVID-19

Courtesy of the AJC

Watch a video of our June 25 virtual discussion on how to access and interpret public health data about the coronavirus pandemic in Georgia. Our panel of experts talked about the accuracy of COVID-19 public health data and explained what it tells us about case counts, deaths, hospitalizations and rolling averages. They defined the difference between a verifiable trend and a momentary blip. Find out how to decipher the data so you can make informed health decisions.

Panelists:

Ben Lopman, Epidemiologist, Emory University Rollins School of Public Health

Willoughby Mariano, Reporter, Atlanta Journal-Constitution

Andy Miller, CEO and Editor, Georgia Health News

Moderator: Richard T. Griffiths, Georgia First Amendment Foundation

  • Read Georgia Public Broadcasting’s coverage, Experts: Georgia’s data on COVID-19 seems lacking.
  • Check out the AJC’s coronavirus dashboard for the latest data on the pandemic in Georgia.
  • Go to Georgia Health News for stories about how the disease is affecting our health care system and our communities.
  • Dive deeper into Lopman’s research on how COVID-19 is transmitted and whether shield immunity, the presumed immunity of people who have recovered from an infection, could let workers in high-contact jobs like health care safely return to work.

Want to learn more about why access to reliable data is critical now? Read Recalibrating the balance: Increasing transparency around COVID-19 while still respecting privacy.

Police departments across Georgia should adopt Citizens’ Right to Record policy

Citizens’ recordings of police actions have become catalysts for change and reform. The Georgia First Amendment Foundation urges local governments and police departments across the state to codify citizens’ right to record police activity. We call on local public officials to amend law enforcement agencies’ standard operating procedures with rules for how public employees —including police officers — enable, store and dispose of photos, videos and audio recordings of police activity.

Below is a template local governments can follow, modeled on standard operating procedures some police officers already are following in Georgia.

Template for Citizens’ Right to Record

All public employees, including law enforcement agents, are prohibited from interfering with a citizen’s right to document police activity through photo, video or audio recordings. This prohibition is in effect as long as recording by the citizen does not physically interfere with the performance of a police officer’s duties.

All public employees are prohibited from intentionally deleting or destroying the original or sole copy of any photograph, audio or video recording of police activity created by a member of the public.

All public employees are prohibited from intentionally deleting or destroying the original or sole copy of any photograph, audio or video recording relating to any use-of-force disciplinary process.

Recordings of police activity must be retained as required by the Georgia Archives’ Local Government Retention Schedules for public safety records.

The penalty for violating these rules governing Citizens’ Right to Record is dismissal from public employment.

Q&A with First Amendment attorney and GFAF board member Gerry Weber

Gerry Weber

Q: What’s the history behind the framework for the Citizens’ Right to Record?

A: We really began to understand the impact of citizens’ right to record after Rodney King was beaten by police officers in Los Angeles in 1991, and the beating was videoed by a citizen from a nearby balcony. In Georgia, the issue gained traction more than 20 years later after high-profile cases in which police seized and, in some instances, deleted footage from cameras and cellphones. One of the resulting reforms, emerging from a 2015 court order, was an Atlanta Police Department policy detailing citizens’ right to record police activity. The Atlanta Police Department has updated the policy over time, as more cases have come to light.

Q: Have you seen results since these rules took effect?

A: The good news is we have seen that when police officers are properly trained about the policy and citizens’ rights, many embrace these rules. But, unfortunately, there are still plenty of instances of police officers interfering with citizens’ video, audio or photographic documentation of police activity. During the recent protests in Atlanta, journalists were even detained and arrested after documenting police activity.

Q: What’s your advice to local governments and police departments that want to add a Citizens’ Right to Record to their law enforcement protocols?

A: The time to do it is now, and the template the Georgia First Amendment Foundation has put together can simplify the process. Our template tracks what the Atlanta Police Department has done, and it also aligns with laws guaranteeing citizens’ constitutional rights.

It’s a good policy that enables an additional check on police officer conduct. It builds public trust, particularly in communities of color, and the policy has the power to save lives. From a taxpayer perspective, greater public oversight can lead to fewer instances of police misconduct and reduce the number of lawsuits against aggressive policing that taxpayers end up paying for.

The policy needs to be supported by training that explains citizens’ rights to police officers and supports a culture of accountability, community engagement and personal responsibility.

Q: What other rights do Georgians have when it comes to police oversight?

A: Citizens can request police videos, incident reports, disciplinary records, police policy documents and more under Georgia’s Open Records Act, as outlined in GFAF’s Red Book, Sunshine Laws: A Guide to Open Government in Georgia. Our Blue Book, Georgia Law Enforcement and the Open Records Act, is also an important resource. Georgians have the power to play an active role in police accountability and the push for change in our communities.

Q: Do you see other opportunities to increase public oversight of police actions, especially following protests against police brutality and misconduct? If so, what would you like to see happen next?

A: The move to make police body cameras mandatory is incredibly important. But it can’t just be about the equipment. Policies and protocols must be in place to ensure cameras are functioning properly each and every day to capture police activity, particularly use of force. In addition, police departments and the government agencies that fund them must have strong record retention policies and procedures in place to ensure captured images are properly archived and easily accessible to citizens, preferably online.

In addition, to truly build public trust, police departments should seek out and make immediately accessible both their own videos and public videos from citizens’ cellphones, businesses’ security cameras and other sources. These citizen videos have sparked calls for reform and led to greater accountability by police departments in Georgia and around the country.

Gerry Weber, a founding board member of the Georgia First Amendment Foundation, is a First Amendment attorney and senior staff counsel at the Southern Center for Human Rights. He formerly served as legal director of the American Civil Liberties Union of Georgia.