Release of documents aligns with law on public access to government contractors’ records

By Clare Norins and Nneka Ewulonu

Atlanta Falcons Stadium Co. voluntarily released records of its work on behalf of a government agency, rather than face a potentially unfavorable appellate court ruling in an open records lawsuit. With the public documents released, the Georgia Court of Appeals dismissed the appeal.

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. The Atlanta Falcons Stadium Co. tacitly acknowledged as much when it handed over 1,500 pages of records before the the Appeals Court of Georgia could rule on whether the records should be made public. Because the records were released, the Court of Appeals in June dismissed the case, Love v. Atlanta Falcons Stadium Co., as moot.

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. The flawed decision: 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.

Fabricated distinction does not reflect Sunshine Laws

The holding by the trial court fabricated 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.”

Our friend-of-the-court brief, filed on behalf of the Georgia First Amendment Foundation and other interested parties, further explains the disconnect between the trial court’s ruling and the state’s Open Records Act.

By turning over the documents voluntarily, StadCo avoided the possibility of an appellate court ruling against them. StadCo’s decision to turn over these documents is now itself part of the court record, signaling that documents about work done by a private entity on behalf of a government agency must be accessible to the public, as the law requires.

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 May 2021 graduate of 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

First Amendment groups demand journalist be given access to cover Ga. GOP convention

On Friday, June 4, 2021, Georgia Public Broadcasting’s primary political correspondent, Stephen Fowler, was excluded from covering the Georgia Republican Party’s state convention. The University of Georgia School of Law’s First Amendment Clinic, the Georgia First Amendment Foundation and the Atlanta Press Club sent a letter to the state GOP demanding that Fowler be allowed access to cover the convention. The Society of Professional Journalists’ Georgia Chapter Board of Directors also supports the effort.

When Fowler arrived at the Jekyll Island Convention Center Friday morning for press credentialing, he was told that only a select group of media had been invited and that he was not on the list. Fowler was asked to leave the Convention Center, first by a staffer and then by Georgia Republican Party Executive Director Stewart Bragg. Meanwhile, reporters from other media outlets were granted entrance, including from the Atlanta Journal-Constitution, Atlanta’s WABE radio station and members of the Georgia Press Association. The Georgia GOP’s bylaws state that their conventions shall be open to the public.

The Georgia GOP Convention is an event of intense public concern. Elected officials from across the state, including Gov. Brian Kemp, are scheduled to give speeches at the convention, speaking publicly on matters of importance to every Georgian. The convention also is where the state Republican party selects its leaders and sets its platform for coming years.

Fowler is an award-winning reporter and photographer. In January 2021, he reported extensively on then-President Donald Trump’s recorded telephone call to Georgia Secretary of State Brad Raffensperger. In that call, Trump urged Raffensperger to overturn the state’s 2020 presidential election results and declare Trump the winner. Fowler also has reported on the Georgia GOP’s perpetuation of false claims of voter fraud in the presidential election.

Excluding Fowler while other journalists were allowed entrance to do their work is discriminatory and goes against the principles of press freedoms and public access enshrined in Georgia’s Sunshine Laws and the U.S. Constitution, as the letter details.

The First Amendment Clinic, GFAF, the Atlanta Press Club and SPJ Georgia’s board of directors condemn the state GOP’s exclusion of Fowler from its ongoing convention and demand that he be allowed access.

Foundation urges high court to secure free speech protections in Georgia

Leading up to the Georgia Supreme Court’s June hearing in a case with significant First Amendment implications, the Georgia First Amendment Foundation has once again partnered with UGA School of Law’s First Amendment Clinic to urge the high court to correct a lower court decision that weakens free-speech protections in Georgia.

In the latest friend-of-the-court brief in ACLU v. Zeh, filed April 29, the foundation argues that the Court of Appeals of Georgia failed to apply the “actual malice” standard when determining whether a defamation lawsuit against the ACLU survived a motion to strike under Georgia’s anti-SLAPP statute. It expands upon a previous friend-of-the-court brief, filed July 23, 2020.

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 the state. 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.

GFAF partners on media training for law enforcement

The Georgia First Amendment Foundation has partnered with the Society of Professional Journalists Georgia Chapter to develop an online training course for the Georgia Public Safety Training Center (GPSTC).

The course, led by SPJ GA and produced with guidance from GFAF and the University of Georgia Law School’s First Amendment Clinic, trains law enforcement and other public safety officials on effectively handling interactions with the news media during volatile events of public interest, such as protests and riots.

The goal of the course is to develop greater understanding that leads to more respectful interactions between law enforcement officers and members of the press and avoids police use of force.

Read SPJ GA’s press release for more information, and watch the video of “Police & the Press: Get the Facts about News Coverage of Protests” —  a May 6, 2021, panel discussion about what journalists and law enforcement officers need to know about one another’s roles and rights.

 

Will knowing less about cyberattacks really make Georgians safer?

By Sarah Brewerton-Palmer and Nneka I. Ewulonu

Proposed legislation would limit Georgians’ right to know about cybersecurity activities and incidents.

Georgia lawmakers are taking swift action on cybersecurity bills with open government implications. The Georgia First Amendment Foundation stated our opposition to these bills, which we believe would limit visibility into what government agencies at all levels are doing. We also contend that existing laws provide the exceptions government officials need to protect against cyberattacks.

Nonetheless, lawmakers from both parties are resoundingly behind the proposals. Both bills passed the House with 0 nays. One measure, House Bill 156, already has passed both chambers. The pace is troubling.

Proponents of these bills say they would make Georgians — and the government technology systems we all rely on — more secure. But dig into the details, and it’s clear that these protections would come at the expense of Georgians’ right to know. Protecting government agencies against cyberattacks is important and requires some secrecy, but the foundation is concerned that these bills are an unnecessary departure from the principles of open government. They give public institutions broad leeway to close meetings or shield records.

Proposals would erode the public’s right to know

HB 156 requires public agencies and utility companies to report cyberattacks and data breaches to homeland security and emergency management officials. The bill further provides that “[a]ny reports or records produced pursuant to this code section shall not be subject to public inspection or disclosure” under the Georgia Open Records Act.

House Bill 134 would allow government agencies to close meetings “when discussing or deliberating upon cybersecurity plans, procedures, and contracts regarding the provision of cybersecurity services.” While the identity of the contractor and terms of the agreement must be disclosed in a public meeting before voting to approve a cybersecurity contract, the proposed legislation would permit the government to hide all other discussions involving cybersecurity.

The bill would also exempt from the Open Records Act “[a]ny document or plan for protection relating to the existence, nature, location, or function of cybersecurity devices, programs, or systems designed to protect computer, information technology, or communications systems against terrorist or other attacks.”

That sweeping language has the potential to hide information about how governments pay for or manage computer networks — information that might not be directly related to combating cyberattacks. Taken to the extreme, it could allow government agencies to keep information about data breaches secret — even if the cause is public officials’ incompetence or malfeasance.

The foundation sees three major problems with HB 134. First, it does not sufficiently define the type of cybersecurity discussion that would qualify for public officials to go into executive session behind closed doors. Second, it would shield from the public essentially any record that touches upon cybersecurity — regardless of whether disclosure of the record would harm cybersecurity efforts. Third, its secretive provisions simply are not necessary. Georgia’s existing Sunshine Laws already allow officials to shield public records related to “[s]ecurity plans and vulnerability assessments for … technology infrastructure” where the disclosure of the requested records would compromise security (O.C.G.A. § 50-18-72(25)(A)(i)).

Without appropriate limitations, HB 134 would weaken the spirit and purpose of our state’s Open Meetings Act and Open Records Act.

Lawmakers can balance cybersecurity and transparency

The foundation recommends that lawmakers amend HB 134’s provisions related to closed meetings and public records to allow for secrecy only when necessary to provide essential cybersecurity protection. Specifically, lawmakers should amend the bill to make it consistent with existing open records laws, allowing meetings to be closed or public records to be withheld only when the disclosure of those deliberations or records “would compromise security against sabotage or criminal or terrorist acts” and when the secrecy of those deliberations or records “is necessary for the protection of life, safety, or public property.”

Changing House Bill 156 is more complicated because the bill already has passed both the House and Senate and soon will head to Gov. Brian Kemp for his signature. But the law could be improved in a future General Assembly session to shield from the public only narrow, relevant portions of public records that could “compromise security against sabotage or criminal or terrorist acts.”

These immediate amendments to HB 134 and future improvements to HB 156 would better protect Georgians’ right to know, while also protecting our government agencies against cyberattacks.

Lawmakers — and especially the Georgians they represent — should pause to grasp the consequences of allowing these bills to become law in their current forms. These measures attempt to increase our security by limiting our understanding of what our government is doing. Does that really make us safer?

Sarah Brewerton-Palmer, a foundation board member and chair of GFAF’s Legislative Committee, is an attorney at Caplan Cobb in Atlanta.

Nneka I. Ewulonu is a third-year student at the University of Georgia School of Law.

Photo courtesy of Ross Williams/Georgia Recorder

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 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.

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.