Georgia First Amendment Foundation
Fighting for Free Speech and Government Transparency
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
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.
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:
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:
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:
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.
Hyde Post, who helped found the Georgia First Amendment Foundation in 1994, was inducted into the National Freedom of Information Coalition’s Open Government Hall of Fame April 13 at the organization’s annual FOI Summit in Dallas.
Hyde Post named to National Freedom of Information Coalition Hall of Fame
The honor reflects Post’s long and steady effort to preserve and protect the free flow of public information that is vital to democracy.
“This is well-deserved recognition for one of Georgia’s strongest champions of government transparency,” said Georgia First Amendment Foundation President Richard T. Griffiths. “It honors Hyde’s commitment to robust open meetings and open records laws.”
Post established GFAF’s pattern of collaborating with public officials to publish guides to open government and transparency in law enforcement. He also led the organization’s efforts to educate lawmakers about the importance of preserving and strengthening public access to government meetings, proceedings and records.
Post’s passion for public access to government emerged through his work as a journalist. Projects he directly oversaw for the Atlanta Journal-Constitution won two Pulitzer prizes. He used his platform at the AJC to advocate for openness and transparency in the halls of government and in the courts. His résumé gave credibility to the Georgia First Amendment Foundation in its early days, and his leadership ensured the organization’s influence for more than two decades.
Post also furthered the open government cause nationally, serving as president of NFOIC from 2009 to 2012. He was instrumental in bringing together state open government organizations to strengthen their collective impact.
Post is now retired from journalism and has stepped down from leadership roles at GFAF and NFOIC, but he continues to support government transparency as a member of GFAF’s board of directors.
The NFOIC State Open Government Hall of Fame began in 2003. Inductees from 14 states have been honored for their dedication to protecting citizens’ rights. Post is one of four inductees in the 2019 Hall of Fame class. Joining him are South Dakota journalist Brian Hunhoff, Texas attorney and legislative advocate Laura Lee Prather and California open records advocate Richard P. McKee.
The recognition highlights Post’s government transparency legacy, Griffiths said.
“The generally positive climate in Georgia toward open and transparent government reflects Hyde’s tireless work,” he said. “Georgia’s public officials simply would not have the same respect for open government if it had not been for Hyde’s thoughtful advocacy.”
Judge Marvin Shoob
U.S. District Judge Marvin Shoob, who “made the Constitution a reality” in his rulings on Cuban refugees, the Ten Commandments, local jails and hundreds of other cases, has died at age 94. Read more from the Atlanta Journal-Constitution.
Shoob—whose fierce willingness to address institutional injustices during more than 36 years on the federal bench in Atlanta stemmed from a seminal experience as a young soldier in World War II—died Monday. Read more from the Daily Report.
In 2007, Shoob’s commitment to constitutional rights was honored by the Georgia First Amendment Foundation. He received our annual Freedom of Information Award named for the late Charles L. Weltner, a former chief justice of the Georgia Supreme Court who championed freedom of information and ethics in state government.
Our platinum sponsor CNN has pledged to match new member contributions — including membership fees — up to $5,000 before Dec. 31. So, you can multiply your support of the crucial open government and free speech work we do simply by joining now.
Memberships start at $50 for individuals and $100 for organizations. Benefits include open records and meetings training; legislative updates on key First Amendment issues; and connecting with other Georgia First Amendment Foundation members and supporters. Become a member today!
By Chris Dodd – One thing all Americans can agree on is the value of our freedoms. While we may sometimes take our Constitutional rights for granted, or differ on their precise interpretation, we can easily agree that the freedoms enshrined in the Constitution are fundamental to what makes our country what it is today.
(This blog by Motion Picture Association of America CEO and former U.S. Senator Chris Dodd first appeared in the Huffington Post Oct. 17, 2016)
The First Amendment right to free speech undergirds all other rights, and here at the Motion Picture Association of America (MPAA), we value and protect this freedom because it’s at the heart of everything we do. We take pride in our role protecting the rights of filmmakers to tell their stories – and for audiences to hear and see them.
Throughout its history, the film and television community has been a steadfast voice for free speech and expression. In fact, the MPAA was founded in 1922 to resist mounting calls for government censorship of films. While the nature of the fight has changed over the past century, our fight to promote and protect free speech continues unabated.
The Supreme Court has weighed in, referring to copyright to as the “engine of free expression.” But as the makers of great film and television continue to offer imaginative and innovative – often even controversial – storytelling, they still face threats to that basic freedom of expression today. There are some who seek to weaken copyright protections, to the detriment of creators. We will always fight on behalf of creators, and in support of free speech.
Last week, I was honored to accept the Georgia First Amendment Foundation’s Charles L. Weltner Freedom of Information Award on behalf of the MPAA for our efforts to strengthen free speech in the Peach State. I had the opportunity to travel to Atlanta and meet with local policy makers, journalists, lawyers, and industry professionals who share our passion for free speech.
Georgia has recently been a battleground in the fight to protect speech, and this year, we celebrate a major victory. Thanks to the efforts of Governor Nathan Deal and the state Legislature, Georgia has a new, improved anti-SLAPP statute that better protects the free speech rights of producers, writers, directors, actors, and other creative professionals – not to mention ordinary Georgia citizens who wish to speak out on public issues without the fear of facing ruinous lawsuits.
The new law makes it quicker, easier, and less expensive to have lawsuits that target the exercise of free speech dismissed. This will create a much more favorable legal environment for movie and TV production in Georgia.
Georgia First Amendment Foundation’s Executive Director Hollie Manheimer explained that MPAA was “instrumental in pushing for these free speech protections that benefit everyone in Georgia.” I am proud of our role in helping get the anti-SLAPP legislation over the goal line, and look forward to seeing continued growth in Georgia’s local film and television industry as a result.
The MPAA studios are strong supporters of anti-SLAPP laws, because they are frequent targets of lawsuits by people who don’t like how they are portrayed in movies and TV shows. Too frequently, these legal actions can have the effect of silencing creative voices, or at least making it more expensive and burdensome to tell stories about real people and events. Just think of all the great movies and TV shows audiences could lose out on absent these important legal protections.
Now, with further protections and fewer barriers, the film and television industry will be able to produce more films and shows in the state of Georgia, bringing in millions of dollars in revenue, and countless jobs to the area. This win for free speech is a win for every individual, family, business, and organization in the state.
My discussions in Georgia were particularly timely, as this week, we celebrate National Free Speech Week, an opportunity to recognize the importance of this freedom and recommit ourselves to protecting it. I encourage you to join the MPAA, and others, as we raise public awareness about the importance of free speech in our democracy – visit freespeechweek.org to learn more.
For more about the MPAA’s work to preserve free speech here.
For a full copy of Senator Dodd’s speech before the Georgia First Amendment Foundation, click here.
By Hyde Post
— Two years ago, the Georgia First Amendment Foundation honored the state’s Judicial Qualifications Commission (JQC) for an opinion that strongly discouraged judges from 
keeping the public out of courtrooms.
The foundation’s board believes the JQC’s opinion significantly, and almost immediately, improved public access to courts in Georgia. The JQC advanced the cause of government transparency to the benefit of all Georgia citizens.
The JQC was created by a constitutional amendment voters approved back in 1972. It operates largely independently, comprised of members appointed by the governor, the state Supreme Court and the Georgia Bar Association. But some legislators were unhappy with how the JQC was run.
As a result, voters this fall will be asked to vote on a new constitutional amendment that would abolish the commission as it is currently constituted and give state legislators the authority to decide how commissioners should be chosen and how the commission should operate.
The Georgia First Amendment Foundation strongly believes adoption of the amendment could result in less transparency about how Georgia’s courts operate and how its judges conduct themselves.
The language voters will read on the ballot is itself less than revealing. It says new rules will “allow the Judicial Qualifications Commission to be open to the public in some manner.” But that manner is not defined and far from certain. In the last session, the Senate version of proposed enabling legislation tightened confidentiality around commission investigations of alleged misconduct by judges and sought to further restrict public access to its hearings.
In recent years, the strong trend at the General Assembly has been toward more government secrecy, not less. (The Legislature has always exempted itself from the Open Meetings Act and Open Records Act.) In the last session alone, the Legislature passed a bill allowing any state agency to conceal documents involving possible business expansions of $25 million in investment or 50 jobs until after a deal is signed. The bill presumes that if, say, the construction of a private prison near your home could create 50 jobs, you are only entitled to learn about it after the fact.
The same General Assembly also approved, at the eleventh hour and without any discussion, an exemption to the Open Records Act that allows state college athletic departments 90 days – rather than the usual three – to respond to public records requests. No other public agency in Georgia is given such latitude to conduct its business in secret.
Neither of those actions suggests a predisposition in the 2017 Legislature to embrace the philosophy of transparency advanced by the JQC when it made clear there are very few valid reasons for closing courtrooms to the public.
There is no question the open court opinion ruffled the feathers of many judges; the Council of State Court Judges argued before the Georgia Supreme Court in a still-pending case that the opinion should be revised.
And there is no question that the commission has gotten more aggressive. The JQC has removed or disciplined judges for a range of bad behavior, including telling a female defendant that favorable rulings would be granted in exchange for sex; theft and fraud involving more than $1 million; pulling a handgun in open court and suggesting a witness could use it to kill her lawyer; tipping off the targets of an undercover FBI investigation; barring female bailiffs from the courtroom; and setting up personal accounts funded by the unauthorized collection of court fees.
The aggressive enforcement has made the commission some enemies. One former judge, who resigned after a commission investigation into allegations of sexual harassment of a female attorney, later ran for the Legislature. He is now one of the principal sponsors of the bill seeking the commission’s abolishment.
There is also no question that the commission today faces significant internal challenges. Its former chair, Lester Tate, resigned after the 2016 legislative session, citing political interference, but also amid charges he abused his authority. More recently, its executive director resigned. And in August, the north Georgia judge who took over as chair, Brenda Weaver, also resigned after she became embroiled in a controversy in which she supported a criminal indictment of a Fannin County newspaper publisher seeking public records concerning her court.
Until the recent turmoil, the commission operated effectively for more than 40 years without any significant effort mounted to abolish it or rewrite its rules.
It is a creature of and operates under the umbrella of the state’s judicial branch, which is where it should stay. To put the Legislature in charge of its future is contrary to the separation of powers principles embedded in Georgia government. The Georgia First Amendment Foundation takes the position that to empower the Legislature to reconstitute the Judicial Qualifications Commission is far more likely to politicize the process of judicial oversight than to advance the cause of an open and accountable government.
Hyde Post is a board member and past president of the Georgia First Amendment Foundation.
Charges should be dropped against a Fannin County newspaper publisher jailed after requesting public records, say a group of government transparency and media organizations in Georgia.
The Georgia First Amendment Foundation, Atlanta Press Club, Georgia Chapter of the Society of Professional Journalists and Georgia Press Association jointly call for the dismissal of charges against Mark Thomason, publisher of the Fannin Focus in Blue Ridge. Thomason was arrested on June 24 and charged with attempted identity fraud, identity fraud and making a false statement as part of his open records request for copies of certain checks documenting spending from judicial operating accounts.
Appalachian Judicial Circuit Superior Court Chief Judge Brenda Weaver, who pushed for the indictments against the journalist, is named on one of the accounts included in open records requests filed by Thomason and his lawyer. Weaver told the Atlanta Journal-Constitution that she was concerned Thomason and his lawyer would use the banking information on the checks to commit fraud.
Nothing in the factual background of this dispute raises the slightest suspicion that Thomason and his lawyer sought the bank records for any fraudulent purpose. It is apparent that they were seeking the records to determine how judicial operating funds had been used.
The charge of making a false statement also is not justifiable under Georgia law. The open records request said that some checks “appear to have not been deposited but cashed illegally.” That wording formed the basis for the false statement charge. But the wording is a statement of opinion — not a false statement.
Judge Weaver told the Journal-Constitution that she “doesn’t react well” when her honesty is questioned. Her poor reaction is evident in the case against the journalist and his lawyer. It is absolutely inappropriate to use criminal charges to try to silence a critic. This case goes against the spirit and purpose of the state’s open records laws and is an affront to the exercise of First Amendment rights.
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Contact: Hollie Manheimer, Executive Director
404-759-3646
gfaf dot mindspring.com
Thoughts from one of GFAF’s new board members, Valdosta Times editor Jim Zachary.
Thank you, Jim, for promoting open government in Georgia.