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.

It’s time for greater public oversight into policing

GFAF joins a nationwide call for more transparency in law enforcement misconduct processes and urges Georgia legislators to make police body, dashboard and drone camera video immediately available in all use-of-force cases.

The Georgia First Amendment Foundation has joined the National Freedom of Information Coalition and the Brechner Center for Freedom of Information in calling for greater law enforcement transparency and accountability.

More than 50 organizations signed on to support the statement, which urges states to enact reforms opening every aspect of the police misconduct oversight process to public scrutiny. The call to action is a response to the killing of George Floyd by a Minneapolis police officer and the unrest that has erupted around the nation. The officer charged in Floyd’s death had multiple complaints filed against him.

While a police officer’s disciplinary history is generally available in Georgia (see GFAF’s Red Book and Blue Book covering relevant Georgia laws), such records are effectively confidential in almost half of U.S. states.

Courtesy of Georgia Recorder

As protestors across the country push for reforms, several states and municipalities have moved to enact legislation surrounding police transparency beyond public records. For example, New York and Colorado legislatures have advanced sweeping police reform measures.

The Georgia General Assembly resumed the 2020 legislative session on June 15, and pressure is mounting for lawmakers to pass a hate crimes law and take action on police reforms in response to the killing of Ahmaud Arbery, a black man who was shot during a confrontation with a white father and son near Brunswick. Arbery was killed in February; two months passed before police made an arrest.

The foundation believes legislators can take further steps to increase fairness and accountability in law enforcement in our state. Both Floyd’s and Arbery’s deaths were captured on video. The Georgia First Amendment Foundation encourages Georgia lawmakers to make all police body, dashboard and drone camera video in use-of-force complaints and investigations immediately available and easily accessible to the public. Such action would move us closer to the increased public oversight of law enforcement that we so desperately need.

Greater transparency leads to better policing. And that leads to better public safety and stronger communities. Immediate reforms in Georgia and across the country would be a beginning to remedying the secrecy in our criminal justice system that erodes public trust.

Check out GFAF’s Legislative Watch for more perspectives on the General Assembly session.

Know your rights: Tips for journalists covering protests

Journalists in Georgia and across the nation have been arrested or detained while covering recent protests. Learn about your rights and what to do during police encounters with a tips sheet prepared by the UGA School of Law First Amendment Clinic’s legal intern Jeffrey Murphy, law fellow Samantha Hamilton and Clinic Director Clare Norins, a Georgia First Amendment Foundation board member.

Read and share Know Your Rights: Tips for Journalists Covering Protests.

Courtesy of Georgia Recorder

Recalibrating the balance: Increasing transparency around COVID-19 while still respecting privacy

By Clare Norins

Narrow restriction of local information about confirmed cases of COVID-19 begs the question: What, exactly, is the appropriate balance between protecting an individual’s identity and the public’s right to information during a public health crisis?

The Georgia Department of Public Health — like many state health departments around the country — provides daily updates on the number of confirmed COVID-19 cases, broken down by county. While these numbers and how they change over time (so far they are only rising) are informative, Georgians are eager to know more, specifically how the coronavirus is manifesting in their local communities.

Yet the department, citing privacy concerns, has declined to release details such as cities within a particular county where cases have been confirmed or locations where people who tested positive have been. News outlets around the state have documented the restrictions on information, in reports like these:

Health care providers in some areas, such as Augusta and Albany, have filled the gap by providing more localized COVID numbers. But this level of data is not available for most of the state, making it difficult for municipal officials and the public to ascribe meaning to the state-reported county numbers.

Lack of transparency frustrates local officials and citizens nationwide

This tension between preservation of privacy interests on the one hand, and a call for greater transparency on the other, is playing out not just in Georgia but around the country. For example, in Massachusetts, some municipalities are releasing specific numbers about COVID cases, and even COVID deaths, within their boundaries, citing the need to keep the public informed. Other municipalities, however, are declining to release numbers, instead referring the public only to the county-based statistics provided by the state health department.

Clare Norins

Oklahoma is another example. There, local government officials and citizens have been frustrated by the state’s refusal to provide more specific, yet still non-identifying, information about confirmed COVID cases. Such information, they say, would help them to make more informed personal and public health decisions.

Meanwhile, South Carolina’s Department of Public Health and Environmental Control has taken an additional step toward transparency by making data on positive COVID cases available by ZIP code.  So, too, has Illinois.

Localized information on COVID-19 would prompt precautions

In response to calls for greater transparency, state public health officials here and elsewhere are encouraging people to assume that they could come into contact with someone infected with COVID-19 at any time, and to take precautions accordingly. It would be far more impactful if people truly understood the virus’ proximity and escalation. For instance, knowing that a certain number of people in your town have tested positive for COVID-19 or that someone from your workplace, your child’s school or the elder care facility where your parent lives has far greater meaning than simply knowing that X number of random people somewhere in your county tested positive for COVID-19. Localized information is also more persuasive. When people understand how the disease is spreading in their town, they are more likely to take precautionary measures.

And here’s the nub of it: Enhanced disclosure of the location or affiliation of people who have tested positive for COVID is — in most situations — not going to be sufficient to make them reasonably identifiable. Certainly, disclosing the number of confirmed COVID cases in a town or city does not identify anyone. Even information that narrows the pool of possible candidates to 1,000, 500 or even 50 people does not identify any single individual. In other words, state health departments, including in Georgia, are taking greater precautions than are actually necessary to achieve reasonable medical privacy.

Moreover, the federal law restricting release of medical information — the Health Insurance Portability and Accountability Act, or HIPAA — recognizes that privacy interests are not absolute in the face of a public health crisis. A March bulletin from the U.S. Department of Health & Human Services states that individual health information can be disclosed “to anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of … the public.”

This is echoed by the Georgia Department of Public Health’s Notice of Privacy Policies, which states, “We may disclose your health information for public health activities which include: preventing or controlling disease … .”

It’s time to prioritize Georgians’ right to vital health information

A recalibration of privacy vs. access is therefore in order. Yes, it is important not to publicly out individuals who have tested positive for COVID-19 without their consent. But the Georgia Department of Public Health and local municipalities can avoid that while still providing citizens access to localized, non-identifying information about COVID-19’s presence in their communities, empowering them to make informed and rational choices.

Withholding this kind of potentially life-saving information goes beyond what is necessary to reasonably protect privacy and, instead, fosters anxiety and public mistrust of health institutions.

Clare Norins, a First Amendment attorney, is a member of GFAF’s board of directors and is director of the First Amendment Clinic at the University of Georgia School of Law.

Learn more about open government and transparency issues amid the COVID-19 coronavirus crisis, including tips for conducting virtual public meetings that follow Georgia’s Sunshine Laws.

What Georgia’s shelter-in-place order means for the media

By Sarah Brewerton-Palmer

Georgia Gov. Brian Kemp’s shelter-in-place order to address the growing COVID-19 coronavirus crisis took effect at 6 p.m. on April 3 and will last through April 30, unless extended. Members of the media are exempt from the shelter-in-place order while they’re working, but they may need to adjust some of the ways they gather news.

Requirements of the shelter-in-in place order

The order generally requires Georgians to remain in their homes unless they are:

  • Conducting essential services (i.e. buying food, getting medicine, going to the doctor, or engaging in outdoor activities)
  • Performing necessary travel (i.e. traveling to and from the grocery store or a critical infrastructure workplace)
  • Performing minimum basic operations for a noncritical business (i.e., picking up mail at an office or obtaining equipment necessary to work from home
  • Engaging in critical infrastructure work

Courtesy of Georgia Recorder

Members of the media are considered employees of critical infrastructure organizations, as defined by the U.S. Department of Homeland Security. That designation is detailed in the handout that the governor’s office issued with the shelter-in-place order, but it takes some digging. Go to Page 15 of the handout to see that DHS’ definition of critical infrastructure includes “[w]orkers who support radio, television, and media service, including, but not limited to front-line news reporters, studio, and technicians for newsgathering, and reporting, and publishing news.”

That means news organizations of all types qualify as critical infrastructure, and their employees—not only journalists but anyone necessary to the operation of a news organization—may continue to work in the office or out in the community without violating the shelter-in-place order.

Tips for journalists

Journalists may need to show that they are exempt from the shelter-in-place order if they are stopped or questioned while working. While the governor’s order does not require you to carry proof of your critical infrastructure status, it is still a good idea to always carry with you:

  • Press identification or credentials from your employer
  • A government-issued ID, such as a driver’s license
  • A copy of Gov. Kemp’s executive order
  • A copy the handout that accompanied the order, which includes DHS’ definition of the media as critical infrastructure

If your media organization doesn’t issue identification to employees, ask your employer to create a provisional ID or provide a letter on company letterhead that verifies your position as a member of the media.

Follow the same practices advised by health care professionals to protect yourself and those with whom you come into contact:

  • Work from home as much as possible
  • Conduct interviews virtually or over the phone
  • During in-person interviews, maintain six feet of space

Tips for media organizations

If a news organization continues in-person operations—for example by continuing to use the newsroom or news studio—then the organization must follow the requirements laid out on pages 4 and 5 of the governor’s shelter-in-place order.

Sarah Brewerton-Palmer

These measures include screening workers for illness, requiring sick workers to stay home, encouraging teleworking where possible, minimizing contact among staff and enhancing sanitizing procedures.

If journalists or members of the media encounter obstacles to their work, let the Georgia First Amendment Foundation know. Reach us at info@gfaf.org.

Sarah Brewerton-Palmer, a foundation board member, is an attorney at Caplan Cobb in Atlanta.

Check out a Q&A on what government entities must do to follow open meetings and open records laws amid the coronavirus crisis and get tips for how to conduct virtual government meetings.

This article was updated on April 9, 2020, to reflect the shelter-in-place order extension through April 30.

Transparency Town Hall: Q&A and key takeaways

Georgians navigating the COVID-19 coronavirus crisis are adapting almost every aspect of their lives to the new normal of physical separation. Social distancing is also affecting how government officials and agencies meet to make decisions and how they enable public access to meetings and records.

A Transparency Town Hall hosted by the Georgia First Amendment Foundation on March 23 explored these issues. A panel of experts offered guidance for how to balance governments’ need to act quickly and the public’s right to know in these unprecedented times. On the panel:

  • Jennifer Colangelo, Georgia Office of the Attorney General
  • Lisa Cupid, Cobb County Commission
  • Tom Clyde, First Amendment Attorney with Kilpatrick Townsend
  • Sarah Brewerton-Palmer, First Amendment Attorney with Caplan Cobb
  • Jim Zachary, Deputy National Editor at CNHI and GFAF President
  • Richard T. Griffiths, Moderator, GFAF President Emeritus

The Q&A below contains edited excerpts. Watch a video of the town hall to hear the full discussion. Refer to Sunshine Laws: A Guide to Open Government in Georgia for guidance on transparency laws in regular and emergency situations.

Courtesy of the AJC

The following information is intended merely as guidance and does not constitute legal advice.

Are public meetings conducted via video conference and teleconference considered open under Georgia law? And what about other channels like Facebook Live and public access TV?

Yes. For a meeting to be open under the law when in-person meetings aren’t feasible, the public should be able to watch a live video broadcast via television; watch a live video feed on their computers; listen live via their computers; or dial in via telephone. The telephone dial-in is important in areas where broadband access is limited or for citizens who don’t have computers. (Check out virtual meeting tips and resources.)

Is it acceptable under the law if every government official is in a different place for a virtual meeting? Is that still a legal meeting?

Yes. As long as the officials are all together electronically; the officials are able to talk with each other; and the public is able to watch or listen in real time, the meeting is legal.

If a local government body holds a meeting without public attendance, records it, and posts the recorded meeting later, does that comply with the state’s Open Meetings Law?

No. That is not equivalent to giving people the ability to watch or listen to a meeting while it is happening.

The Open Meetings Act requires officials to move an overflowing in-person meeting to a larger room. Does that same requirement apply to virtual meetings? Does a local government have to expand their teleconference capabilities, for example, if many people want to dial in or log in to a public meeting?

Officials have to do their best to make a good-faith effort to open the meeting to as many people as possible. Agencies should anticipate a surge in public interest right now; more people may want to virtually attend a meeting than normally would attend a regular, in-person meeting. A video conference, a teleconference, or both are acceptable under the law. (Learn more about free or low-cost virtual meeting technologies.)

Do you have to have a quorum for a public meeting conducted via video or telecom conference to be legal?

Yes, you still have to have a quorum.

If public officials decide to meet in person, can they keep a member of the public or media from attending the meeting?

Doubtful. There would need to be a legitimate emergency justification for the in-person attendance of officials, without permitting the in-person attendance of the public or representatives of the public. Additionally, at a minimum, the meeting would have to be accessible live via video or audio.

What does the law say about posting notifications of public meetings during a crisis?

All of the same notice requirements that normally apply to in-person meetings still apply now. Officials should still go through the existing process of putting a notice with virtual meeting dial-in or login details in the legal organ; posting on agency websites; hanging up signs with meeting information on the front doors of public buildings where meetings normally take place; etc.

The following notice requirements apply:

  1. When an agency is holding a regularly scheduled meeting, it must provide public notice at least a week in advance.
  2. For non-regular meetings, an agency must provide notice at least 24 hours in advance.
  3. For emergency meetings, the agency can provide less than 24 hours’ notice. The agency must notify the public as soon as it decides to call the meeting and should post a notification on the agency website; alert local media and ask that they publicize the meeting on their websites; post meeting notifications on the agency’s social media channels, like Facebook and Twitter; and use the media and other channels to advise the public of the meeting. It’s relatively easy to get the word out electronically, and all of these efforts will show that an agency is making a good-faith effort to comply with the law.

Other states are amending or suspending some aspects of their open meetings and open records laws. Why isn’t that happening in Georgia?

Georgia’s Open Meetings Act and Open Records Act both have provisions for emergency situations. The Open Meetings Act allows any government agency to hold meetings telephonically or virtually in an emergency. See O.C.G.A. § 50-14-1(g). The Open Records Act allows public agencies to take longer than three business days to provide records, if the records cannot be provided within that time.  See O.C.G.A. § 50-18-71(b)(1)(A). The agency must tell a requester within three business days when they will be able to produce records. Agencies should explain to the requester how the emergency situation is contributing to any delay in the availability of records.

Are agencies going to get into trouble if, during this crisis, they can’t produce records in the standard three-day period defined by the Open Records Act?

When agencies have the ability to respond to a request within the three-day timeframe, they should do it. For example, if agency staffers working from home have access to servers with agency records, they should comply with requests, as the law requires.

But less technologically enabled agencies may need more time. For example, in a small town that keeps records that cannot be accessed remotely, the city clerk could go into the office one day a week, with limited interaction with other people and appropriate social distancing, in order to respond to records request. The Open Records Act allows an agency to give a requestor a reasonable amount of time for a record to be produced in emergency situations. The agency must respond to the request within three business days of receipt, but officials can tell the requester that it will take a certain number of days to comply under current circumstances.

Will journalists in Georgia still be able to go into communities to do reporting, even under a stay-at-home order? 

Gov. Brian Kemp’s shelter-in-place order, effective April 3-13, was accompanied by a handout that defines as critical infrastructure: “Workers who support radio, television, and media service, including, but not limited to front-line news reporters, studio, and technicians for newsgathering, and reporting, and publishing news.” In other states that have implemented shelter-in-place orders, newsgathering by journalists also has been designated as an essential service. That’s consistent with past emergencies. In hurricanes, tornadoes and times of war, for example, the media has been allowed to continue working to keep the public informed because there’s an understanding by officials that people need as much reliable information as possible. [Updated April 3, 2020]

What can governments do to ensure information gets shared with the media so it can be widely reported to the public?

Daily or twice-daily media briefings are very helpful. It’s also important for reporters to have the opportunity to ask questions during these briefings and to contact officials at other times to clarify information and get more details. The shared goal for local governments and local media should be to keep citizens in their communities informed.

Can local governments address non-emergency business when operating under emergency provisions as defined in the Open Meetings Act?

Potentially, but proceed with caution. For emergency meetings that can be called less than 24 hours in advance, the law requires that the meeting be only about the emergency and not used as an opportunity to get other business done. In other meetings that are held telephonically or virtually because of the emergency, the Open Meetings Act does not restrict the business that can be addressed. But even during regularly scheduled meetings, emergency preparation and response should be the priority right now.

If officials in a regularly scheduled meeting cover all of their coronavirus-related business and have time to address other matters, that may be acceptable. But local governments should be cautious and judicious about conducting non-emergency business — especially business like zoning, where public comment is key — at a time when public participation in meetings may be reduced by the crisis.

Does the federal law restricting release of medical information — the Health Insurance Portability and Accountability Act, or HIPAA — restrict state and local governments in Georgia from providing information about the coronavirus outbreak?

No. The U.S. Department of Health and Human Services (HHS) has indicated that protecting the public outweighs protecting privacy of individual patients. So, if there is a need to disseminate information to protect other people, that is allowed under HIPAA. Officials should be cautious about providing an infected person’s name or other identifying details. But it is allowed under HIPAA, for example, to say a jail inmate or a government employee or a member of the public who attended a public gathering has tested positive for COVID-19 because that information can protect the health of other people. (See recent HHS guidance about HIPAA and COVID-19.)

If a government building is closed to the public, can officials deny a request from someone who wants to inspect public records?

Agencies can delay producing records, per the Open Records Act, but they should make a good-faith effort to comply with the request, especially if public buildings that house records remain closed for an extended time. For example, one agency employee might come in to retrieve the records, place them on a table, and allow the requester to come in to review the records. Agencies are going to have to come up with these kinds of solutions as the emergency extends.

Georgia emergency management statutes say that during an emergency, powers and functions of government can be exercised without regard to time-consuming procedures otherwise prescribed by law. How does that provision align with open meetings and open records requirements?

If officials think an agency is not going to be able to comply with the Open Meetings Act or the Open Records Act, their first priority should be making sure that the community can watch or listen to meetings and get access to as much information as possible to know what’s going on.

The important thing in a crisis is that people know what their government is doing, especially at the local level. People may be more likely to listen to their mayor telling them to stop gathering in groups than to similar advice coming from state or federal agencies. The most important thing is that citizens have access to meetings and information so they can know what’s going on, even if an agency isn’t able to do everything by the book.

What should citizens or public officials do if they believe local elected officials or agencies are violating state transparency laws during this crisis?

Contact the Georgia Department of Law’s Open Government Mediation Program to report problems. Staff can reach out to officials to find out what’s happening; ask if they need help understanding or complying with the law; and direct them to groups that have resources to help local governments, like the Georgia Municipal Association and the Association of County Commissioners of Georgia.

The questions below were submitted to the Georgia First Amendment Foundation separate from the Transparency Town Hall:

What happens if enough government officials join a daily briefing call with staff to constitute a quorum? Do those daily briefings with staff have to be open and accessible to the public?

Yes, unless there is an exception to the Open Meetings Act that applies. Generally, the Open Meetings Act exists so that the public gets the same access to information as the officials they elected to office.

How should governments allow for public comment when meetings are virtual? What does the law require? What are best practices?

If public comment is required during a meeting, the agency must continue to allow for public comment. There are a variety of ways to accomplish this in virtual meetings. Agencies can have the public submit comments by email prior to the meeting and then read the comments aloud during the meeting. When holding meetings by telephone, an agency could mute members of the public during regular business and then unmute them to allow for public comment. When holding meetings using an online interface, such as Zoom, WebEx or Facebook/YouTube livestreams, an agency can ask the public to comment in the chat or other comment functions and then read those comments aloud or unmute the citizen and have them communicate their comment.

The Georgia First Amendment Foundation has published tips for keeping virtual government meetings open, as well as a list of technology resources. Do you have more questions about government transparency amid the coronavirus crisis? Email us at info@gfaf.org.