GFAF supports Clarke parent’s fight for access to school data about COVID

A parent denied access to Clarke County School District records about COVID-19 case counts has filed a complaint with the Georgia Attorney General’s Office, and the Georgia First Amendment Foundation is supporting her fight.

A Feb. 25 letter of support from the Foundation argues that the Clarke County School District intentionally delayed access to public records sought by Carrie Bishop, whose child is a student in the district. In addition, the Foundation argues that the school district’s rationale for denying records was based on an erroneous interpretation of the Georgia Open Records Act. (Read the full letter.)

The Georgia First Amendment Foundation is a nonprofit, nonpartisan organization committed to supporting Georgians’ access to public records, meetings and court proceedings and protecting free speech rights.

The public stands to lose through judicial narrowing of Georgia Sunshine Laws

By Clare Norins and Nneka Ewulonu

If allowed to stand, a trial court misinterpretation of Georgia’s Open Records Act would create a gaping loophole in the state’s Sunshine Laws, allowing government agencies to avoid public scrutiny by delegating functions to a private contractor.

When a Georgia government agency contracts a private entity to carry out a function or service for the agency, documents relating to that activity must be open to the public. But this could change if a trial court’s decision in Love v. Atlanta Falcons Stadium Co. is allowed to stand. The Court of Appeals of Georgia, currently considering the case, can protect the public’s right to know by reversing the lower court decision.

The Georgia Open Records Act gives the public the broad right to see, inspect, and copy all public records. That includes “all documents … prepared and maintained or received … by a private person or entity in the performance of a service or function for or on behalf of an agency.” [See Sunshine Laws: A Guide to Open Government in Georgia or O.C.G.A. § 50-18-70(b)(2).] In the past, this has assured public access to records relating to, for instance, private companies contracted by government agencies to provide public health services, administer state insurance plans and execute large public construction projects.

Documents covered by ‘plain language’ of law

Here’s the background of Love v. Atlanta Falcons Stadium Co. The Georgia World Congress Center Authority is a state agency that promotes recreation, athletics and tourism. In 2013, the authority contracted with private entity Atlanta Falcons Stadium Co., called StadCo, to build and maintain the Mercedes Benz Stadium in Atlanta. The stadium, like the Georgia Dome it replaced, is a sports and retail venue. It’s the home stadium for the Atlanta Falcons professional football team and Atlanta United FC professional soccer club, and the stadium regularly hosts college and high school championship games.

Rather than build and maintain the Mercedes Benz Stadium itself, as its legal mandate authorizes, the Georgia World Congress Center Authority contracted the work to StadCo. In addition, taxpayer dollars were used to finance a portion of the stadium’s construction, as was detailed by the Atlanta Journal-Constitution in 2016.

At the heart of the Love case is a request by a member of the public to inspect and copy construction documents and loan agreements held by StadCo relating to its stadium contract with the Georgia World Congress Center Authority. These documents clearly fall within the plain language of the Georgia Open Records Act’s definition of “public records.” Additionally, Georgia courts have recognized that spending taxpayer dollars to pay a private entity creates a strong public interest in disclosure of related records.

Nonetheless, StadCo asserted that because it is a private entity, it is not subject to the Open Records Act. And, in June 2020, the Fulton County Superior Court erroneously agreed. Specifically, the trial court interpreted the Act to mean that documents held by a private entity are only subject to public disclosure when the private entity performs work that the delegating agency “would otherwise have to perform,” and not when a private entity performs “work that the agency is merely authorized to do.” The trial court decided that since the Georgia World Congress Center Authority was not required by its legislative charter to build the stadium, but was merely authorized to do so, records relating to the authority’s contract with StadCo to construct and maintain the stadium were not open to the public.

Threat is gaping loophole in Sunshine Laws

This holding by the trial court fabricates a distinction between mandatory and discretionary work of a government agency under the Georgia Open Records Act. This distinction appears nowhere in the Act itself, nor in any other case law interpreting the Act. In fact, the trial court’s reading of the statute runs directly counter to the law’s explicit public policy goals of promoting transparent government. The Open Records Act states, “Public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.”

If allowed to stand, the trial court’s misinterpretation of the Georgia Open Records Act creates a gaping loophole in the state’s Sunshine Laws, whereby a government agency may avoid public scrutiny by delegating to a private entity any number of services or functions that the agency would otherwise perform. This is an absurd and deeply troubling result that threatens to nullify the General Assembly’s enactment of the Open Records Act provision concerning public records in the possession of private entities.

Our friend-of-the-court brief, filed on behalf of the Georgia First Amendment Foundation and other interested parties, urges the Georgia Court of Appeals to reject the trial court’s unsupported interpretation of the Open Records Act and restore the plain-language meaning of the law.

Clare Norins is an assistant clinical professor and director of the First Amendment Clinic at the University of Georgia School of Law. She is also a member of GFAF’s board of directors.

Nneka I. Ewulonu is a third-year law student at the University of Georgia School of Law and was enrolled in the First Amendment Clinic during the fall 2020 semester.

Photo: Mercedes Benz Stadium under construction in 2017. Courtesy of Curtis Compton/AJC

GFAF founding board member Tom Bennett remembered for open government advocacy

Tom Bennett, retired journalist and longtime advocate of open government, free speech and accountability journalism, died Monday, Dec. 28, 2020. He was 76.

“Tom was truly one of the founders of the Georgia First Amendment Foundation,” said Hyde Post, founding president of GFAF in 1994 and a current board member. “He helped me organize our first board gathering, and for the next two decades, he was a tireless advocate for the cause of open government. He made sure our events were successful and professional; he helped organize our open records surveys and was a vital part of getting our publications out the door.”

Bennett was an instrumental part of the team that created GFAF’s “Blue Book,” Georgia Law Enforcement and the Open Records Act: A Law Enforcement Officer’s Guide To Open Records in Georgia. He also helped create the foundation’s first website and launched our digital communications outreach.

“I will miss Tom and will always be grateful he answered the call when I asked him to get involved,” Post said.

Retired GFAF board member Carolyn Carlson recalled working with Bennett on the foundation’s annual fundraiser, the Charles L. Weltner Freedom of Information Award Banquet, which he chaired for many years.

“As the dinner date approached, we would meet regularly at Mary Mac’s Tea Room to make sure everything was on track for the big event,” Carlson said. “So whenever I think of Tom, I think of Mary Mac’s great food, too.”

During Bennett’s 23 years at the Atlanta Journal-Constitution, he led open-government surveys in Georgia and Alabama and launched a newsletter that covered freedom-of-information surveys across 26 states.

His career in Georgia included writing and editing for the AJC, including as a sportswriter, and serving as assistant public relations director for both the Atlanta Braves and the Atlanta Falcons.

Two early stalwarts of the Georgia First Amendment Foundation, current board member Hollie Manheimer and founding board member Tom Bennett, reunite at our 2019 Weltner Banquet. Bennett died Dec. 28, 2020.

Bennett authored more than 400 obituaries on such notables as Septima Clark, Thurgood Marshall, Rosa Parks, Strom Thurmond, George Wallace, Coca-Cola’s Robert and George Woodruff, Erskine Caldwell, James Dickey and Robert Penn Warren.

His book, The Pro Style: The Complete Guide to Understanding National Football League Strategy, published in 1976, was a selection of the Sports Illustrated Book Club. He and others wrote The NFL’s Official Encyclopedia of Professional Football, published in 1977.

Bennett, who retired in Murphy, N.C., is survived by his wife of 54 years, Lorraine Martin Bennett. She was at his side at many Weltner Banquets, taking part in Bennett’s efforts to promote and expand Georgians’ right to know. Read his full obituary.

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.