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.

Transparency in the time of coronavirus: Tips for virtual government meetings

By Sarah Brewerton-Palmer

As the world reacts to the coronavirus pandemic, public meetings have suddenly become a threat to public health. In response, governmental entities across the state and the country are transitioning from in-person meetings to virtual meetings. The following tips will help local governments and state agencies in Georgia protect people’s health while upholding their commitment to open government.

What the law requires on a regular day

Here’s what Georgia’s Open Meetings Act requires during governments’ normal operations. The public must have access to all open meetings held by a government entity. The Act applies broadly to every agency, board, department, office or commission, whether at the city, county, state or regional level. Meetings can only be closed to the public in a very limited set of circumstances listed in O.C.G.A. § 50-14-3 (see the Georgia First Amendment Foundation’s Sunshine Laws: A Guide to Open Government in Georgia for more details). If a meeting does not fall into one of those exceptions, then it must be open to the public. Any action taken at a meeting that is improperly closed to the public is null and void.

Sarah Brewerton-Palmer

In addition to providing access, government entities must give the public advance notice of any meeting. A regularly scheduled meeting requires notice at least one week in advance. For any other meetings, officials must provide notice at least 24 hours in advance (though providing more notice whenever practicable is a good idea). Government entities must also post an agenda in advance of any open meeting. Except for certain statewide agencies, all open meetings must be held in person.

Open government laws were designed for flexibility during emergencies

During emergency situations, such as the COVID-19 coronavirus pandemic, the state Open Meetings Act allows for deviation from these procedures in two ways. First, if officials need to act quickly, a government entity can hold an emergency meeting without providing 24 hours’ notice. The agency still must provide the public with advance notice of the meeting and post an agenda, and the agency must also record in the meeting minutes the specific circumstances that justified holding an emergency meeting. As the coronavirus pandemic continues, agencies may need to call emergency meetings for a variety of reasons. Agencies should provide public notice of these meetings as early as possible so that members of the public have a chance to attend and participate.

Second, when there is a public safety emergency such as the one presented by coronavirus, government officials who are otherwise required to meet in person can instead conduct their meetings by teleconference. This is particularly important now, when in-person meetings would likely violate recent guidance to avoid gatherings of 10 or more people.

Technology makes public access manageable, even in a crisis

Whether it’s an emergency meeting or a regularly scheduled meeting by teleconference, members of the public still must have access. Amid today’s emergency procedures, the Georgia First Amendment Foundation encourages all of Georgia’s public agencies to explore technological solutions such as live streaming and teleconferencing that allow the public to attend remotely. A wide variety of platforms enable virtual meetings where members of the public could watch or listen to the actions taken by their governmental representative. If your agency normally has a process for public comment at meetings, consider asking attendees of virtual meetings to submit comments by email before or during the meeting.

Now more than ever, transparency in government is vital to giving the public confidence in their governmental representatives and ensuring they understand and have the ability to weigh in on actions taken under emergency conditions. As governments at all levels change their operations in response to the coronavirus pandemic, they must do so in a way that maintains and promotes Georgians’ access to the public’s business.

The Georgia First Amendment Foundation is available to help public officials, as well as citizens, as they navigate laws governing public access during this crisis. We encourage agencies to contact us with questions as they make the transition to virtual meetings. Reach us at info@gfaf.org.

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

RESOURCES

Enable public access with virtual meeting tools. Here are some options.

During the current coronavirus crisis, The Georgia First Amendment Foundation recommends that all government entities take advantage of the Open Meetings Act’s emergency procedures and meet by teleconference, rather than in person. Below is a list of platforms that provide free or relatively inexpensive livestream or teleconference services that can be used to run virtual meetings.

Many of these services allow a meeting host to selectively mute participants so that members can conduct a meeting without interruption. These services can also help facilitate a public comment period, whether by allowing members of the public to speak on the call or by soliciting comments through chat functions.

This list is not an endorsement of any of these services, and other options may be available. The foundation is providing this information as a resource only.

Webex by Cisco

  • Provides video streams or teleconferences with up to 200 participants
  • Features:
    • Participants can join through a desktop browser, mobile app, or by dialing in to a telephone number
    • Selective muting of participants
    • Recording ability
    • Includes a “Raise Your Hand” feature for participants joining online, which could be used to facilitate public comment
    • Chat function
  • Plans range from free to $26.95

Zoom

  • Provides video streams or teleconferences for up to 500 participants
  • Features
    • Participants can join through a desktop browser, mobile app, or by dialing in to a telephone number
    • Selective muting of participants
    • Recording ability
    • Chat function
  • Plans range from free to $20 per month

Meet by Google

  • Meet provides for a livestreamed video or audio feed for up to 250 participants
  • Features
    • Participants can join through a desktop browser, a mobile app, or by dialing into a telephone number
    • Selective muting of participants
    • Chat function
  • Google’s G Suite, which includes Meet teleconference and livestream service, has plans ranging from $6 to $25 per month

YouTube or Facebook livestream

  • YouTube and Facebook provide the ability to livestream video or audio feeds
  • Members of the public can watch the streamed meeting through a desktop browser or mobile app
  • Members of the public can participate using the comment or chat functions
  • These tools are free, though they are more suited for video than for an audio feed and require the use of a webcam

Local governments are already using tools like these to hold publicly accessible meetings during this crisis. Let us know what’s working for your agency.

 

 

The Legislature should follow Georgia’s Open Records Act

 By Richard T. Griffiths

Since the beginning of the Georgia Open Records Act, the Legislature has exempted itself from the state’s Sunshine Laws. Two identical bills, submitted by Gov. Brian Kemp’s floor leaders in the House and Senate, would fix that.

If passed, Senate Bill 503 and House Bill 1159 would amend the Official Code of Georgia to require “the General Assembly, including its individual members, committee, commissions, and offices…” to comply with the state Open Records Act.

With the Legislature on hiatus and lawmakers in self-quarantine because of the COVID-19 coronavirus, no action is imminent. Meanwhile, some political watchers are questioning the true intent of the legislation. Is it just political gamesmanship? Worse, is it an attempt by lawmakers to get their open records exemption on the record?

Richard T. Griffiths, GFAF president emeritus

At the moment, the state’s strongest legal rationale for why the General Assembly is exempt from the Open Records Act — as a recent court case demonstrated — is that the Legislature is not explicitly mentioned in the Act. The state argues that through that omission, legislators effectively exempted themselves from the law they created. If SB 503 and HB 1159 fail, would that bolster the case that the Open Records Act shouldn’t apply to the Legislature? Could lawmakers say that they considered including the General Assembly in the state’s Sunshine Laws, but then decided against it?

These are skeptical views of how business gets done at the statehouse. But we at the Georgia First Amendment Foundation have a more optimistic perspective. We think the very existence of these transparency proposals is welcome news for Georgians who want more openness in our state government.

Clear power, opaque processes

The General Assembly has an operating budget of about $45 million a year, and it helps decide what happens to a $27.4 billion budget in taxpayer dollars. Lawmakers set tax policy and make laws regulating life for all Georgians, including professional standards for occupations. But the Legislature isn’t required to be transparent about its documented processes, procedures or precisely how the money set aside for legislative business is allocated.

Much of what the Legislature does happens in the open, but that’s largely at the discretion of lawmakers. The rules that govern transparency in each chamber and committee are just that, rules, not laws. And arcane chamber rules are often hard for the layman to track down. That’s led to tension with journalists, advocacy groups and the public when legislators hold back on showing exactly how the sausage gets made.

Legislators make the case that they shouldn’t have to hand over sensitive emails and letters they get from constituents back home. They point out that House and Senate leaders effectively honor open records requests on such matters as expense accounts.

But the reality is that the Legislature’s open records exemption allows state senators and representatives to hide contacts with special interests and lobbyists, as well as bad behavior. Efforts by journalists to understand the extent of sexual harassment settlements involving senators, for example, were thwarted, even as the Senate made changes to its policy on sexual harassment and reviewed the case of an accused senator in secret.

The public has a right to know

The foundation applauds the governor and his floor leaders for proposing legislation that would make the Open Records Act apply to the General Assembly. When lawmakers return to the statehouse, the governor and his floor leaders need to twist some arms to get these bills turned into law. And citizens should take action, too. Email and call your legislators to remind them that the General Assembly’s business is the public’s business.

If the coronavirus crisis teaches us anything, it is that knowledge is power. And the people have the right to know what their elected representatives are doing. The public deserves to be informed about everything that is happening under the Gold Dome, not just what our elected officials decide we should know.

Richard T. Griffiths is president emeritus of the Georgia First Amendment Foundation.

Legislative Breakfast explores emerging open government issues in 2020 General Assembly

Transparency implications of proposed legislation dominated the discussion at the Georgia First Amendment Foundation’s annual Legislative Breakfast on Jan. 23.

State Sen. Jen Jordan, state Rep. Josh McLaurin, Atlanta Journal-Constitution journalist James Salzer and First Amendment attorneys Tom Clyde and Peter Canfield examined issues emerging in the General Assembly session, including bills that would:

  • Limit public access to criminal records
  • Impose restrictions on journalists
  • Require “truth-in-taxation” transparency
  • Curb private companies’ control over access to public records
  • Require all-party consent for recording non-public conversations

The lawmakers gave their take on the viability of these measures and offered behind-the-scenes perspectives on how business gets done under the Gold Dome.

The breakfast was held at the Georgia State University College of Law in downtown Atlanta. It was co-sponsored by student chapters of the American Constitution Society and the Black Law Students Association.

Do you want accountable government? You should support local journalism

By Richard T. Griffiths

Richard T. Griffiths, Georgia First Amendment Foundation president

Here’s what happens to communities when local journalism collapses: Taxpayers pay more and know less.

When local newspapers shut down, county payrolls swell, jumping $1.4 million within a year of a newspaper closing. Taxpayers pay more in taxes—an increase of about $85 per capita. It costs more to borrow money for government projects like roads and schools. But these distressing pocketbook issues, documented by researchers at University of Illinois at Chicago and Notre Dame, aren’t the only bad news.

When people live in news deserts, voter participation falls off dramatically, as researchers from the University of Texas and Cleveland State University found. Democracy takes a hit.

That’s why it was so alarming when this message popped up on the website of the Waycross Journal-Herald this fall: “Stop the Presses. The Waycross Journal-Herald, which has been owned and operated by the Williams family since 1916, will cease publication as of September 30th.”

And why it was such a relief when owners of The Brantley Beacon in Nahunta bought the Waycross Journal-Herald a few weeks later and began operating it as a weekly publication. Southeast Georgia got a reprieve.

Local journalism is disappearing in Georgia

But let’s face it. The Fourth Estate — the constitutionally recognized protector of the public interest guaranteed by the First Amendment — is no longer there in many parts of Georgia. Even in bigger communities, local journalism is wilting as social media and search engines gobble up ad dollars and redistribute news content for free.

This presents challenges not only for the media business, but also for local and state governments. Concerned citizens who don’t have a news surrogate are increasingly seeking public documents and demanding access to public meetings. We at the Georgia First Amendment Foundation know this because those citizens are asking for copies of our Red Book, Sunshine Laws: A Guide to Open Government in Georgia. They’re using our sample letters to draft their requests in line with the state’s Open Records Act.

And when they get confusing responses from their government officials — or no response at all — they’re contacting us or the office of state Attorney General Chris Carr for help. The attorney general is responsible for enforcing Georgia’s Open Records Act and Open Meetings Act, and Carr exercised that authority earlier this year when his office filed the first-ever criminal charges for open records violations against a former City of Atlanta press secretary.

Who enforces transparency for state agencies?

That case, now playing out in court, highlights one of the key issues we at the foundation see emerging in the 2020 General Assembly session that will kick off in January.

When the state attorney general fights against Open Records Act violations committed by a local government officials, it’s not simple, but it is straightforward. The state’s highest-ranking lawyer is fighting to uphold state laws. But what happens when the open government dispute is between a citizen or a news organization and a state agency? The AG’s office might issue an opinion that supports transparency before the dispute results in litigation. But once court papers are filed, the attorney general’s role must be to defend the state agency. It’s Carr’s job to do so. It’s in the state constitution.

The foundation would like to challenge Attorney General Carr and his terrific team of attorneys — who played an important role in checking the legal facts in our recently updated Red Book — to think a bit about how we might ease that potential conflict. Is there a mechanism that could be created in those cases so the official responsible for enforcing open records laws is not in the position of having to defend a state agency for not following the law? We at the foundation believe it is worthwhile for our state lawmakers and other officials to consider solutions.

Keeping Georgians informed and holding the powerful accountable

And as the legislative session draws near, we have a challenge for the voters, taxpayers, businesspeople and elected officials who benefit from accountability journalism in their local communities. Recognize the value journalism delivers, and get engaged. Buy a newspaper. Subscribe to a local news site. Watch your local evening news. Contribute to the public radio and television stations that keep you informed. If you don’t like a story, say so. But don’t dismiss it as fake news until you’ve really explored what the reporters and editors in your communities are doing to keep you in the know and hold the powerful accountable.

Otherwise, here’s a glimpse of things to come. In the waning days of the last legislative session, six state representatives rolled out House Bill 734 — the so-called “Ethics in Journalism Act.” The bill calls for a journalism oversight board and for accreditation of all journalists working for news organizations in Georgia. There’s even a misguided twist on Georgia’s open government laws, where interview subjects would have the right to all outtakes and interview transcripts within three days of an interview. Mind you, this is coming from the only public officials in Georgia who have specifically exempted themselves from Georgia’s Open Records Act — that’s right, our state Sunshine Laws don’t apply to the General Assembly.

Why do legislators want to make news less available?

It’s doubtful that this bill, as written, would make it through the Legislature. And if it did, the judges and justices in our courts would probably find it unconstitutional. But it’s still very, very troubling.

That’s because House Bill 734 was proposed by six Georgia lawmakers who have standing in the communities they serve: a businessman, a pharmacist, a marketing consultant, a lawyer, a retired county agent and a real estate developer. A few years ago, no one of their stature would have dared propose such a bill. They would never have wanted to go home and explain why they were taking legislative steps to reduce the public’s access to legitimate news and information.

Now, in the siloed, algorithm-driven world of news via social media, these lawmakers’ views on journalism mirror opinions held by a third of Americans — nearly half of Republicans — who agree with the president of the United States that the media is “the enemy of the American people.”

Core principles of democracy

Those of us who believe in accountability journalism and open and transparent government as core principles in the preservation of our democracy must make our case to these lawmakers and the citizens they represent. We must work much harder to explain how a robust media helps Georgians stay healthier and safer, keeps watch over taxpayer dollars, follows the trail of corruption and champions the public’s right to know.

News deserts devolve into democracy deserts. That’s why we must cherish and protect our rights to government access, support accountability journalism in our communities and be grateful that the well of local news isn’t running dry in places like Waycross.

Richard T. Griffiths will become president emeritus of the Georgia First Amendment Foundation on Jan. 1, 2020.

State Rep. Jay Powell, advocate for updated Sunshine Laws, dies at 67

State Rep. Jay Powell, chairman of the House Rules Committee, died Nov. 25 while attending a Republican legislative leaders retreat in Young Harris. He was 67.

The late Georgia state lawmaker Jay Powell was instrumental in the 2012 update and expansion of Georgia’s Sunshine Laws. Source: Georgia House of Representatives

Powell, an attorney from Camilla, was instrumental to the 2012 update and expansion of Georgia’s Sunshine Laws. He was a sponsor of the bill that improved Georgians’ access to government meetings, proceedings and records, working alongside Sam Olens, then the attorney general, to shepherd the proposal through the legislative process.

The Georgia First Amendment Foundation supported the legislation and partnered with Powell and other state officials to educate lawmakers and the public about the benefits of strengthening Georgia’s government transparency laws.

Commentary co-authored by Powell and Olens, published in the Atlanta Journal-Constitution in March 2012, explained the improvements. “[The legislation] makes clear that final votes have to be taken in public, including on real estate transactions. It clarifies and streamlines how government officials must respond to a request. It lowers the cost of records from 25 cents to 10 cents a page. It enables government to act more efficiently by permitting certain meetings by teleconference in emergency situations. It requires minutes in closed meetings with review by a court when a challenge is filed. And it provides the teeth needed to enforce the law by allowing us to bring civil or criminal actions against violators with increased fines so that they serve as a meaningful deterrent instead of just a slap on the wrist.”

This year, for the first time ever, an alleged violation of Georgia’s Open Records Act led to criminal charges—demonstrating those “teeth” in the law.

The Sunshine Law updates Powell championed are reflected in the foundation’s recently updated Red Book, Sunshine Laws: A Guide to Open Government in Georgia. Learn more about Powell’s career and legacy in articles published in the AJC and Albany Herald.