GFAF in the courts: Two wins and a wait

Courts are a battleground in the Georgia First Amendment Foundation’s fight to protect and expand government transparency
By Peter Canfield

Georgia’s open government laws draw strength from insightful interpretation by the courts.

The Georgia First Amendment Foundation plays a vital role in promoting that kind of interpretation by filing what are known as friend-of-the-court, or amicus, legal briefs designed to educate judges about the implications of their decisions.

Two recent victories in cases in which the foundation weighed in are worthy of attention, as is another case that’s still pending.

In June, the Georgia Supreme Court corrected a lower court ruling that had instructed public records custodians in the state not to release records unless Georgia’s Open Records Act required it. At issue were faculty research records that public universities aren’t required to release. Kennesaw State University, nevertheless, decided that it wanted to release the records. The state Supreme Court, overruling the Court of Appeals, held that the university had that prerogative.

In arguing for that result, the foundation was joined by the Reporters Committee for Freedom of the Press, the Georgia Press Association and the Atlanta Journal-Constitution. The foundation’s brief explained that the Court of Appeals’ decision made Georgia a national outlier, leaving citizens here with far less access to public information than they’ve had in the past or would enjoy in most other states and at the federal level.

Peter Canfield

The state Supreme Court corrected another Court of Appeals ruling last fall when it reiterated that private hospitals created by public hospital authorities are subject to open government requirements. The foundation, joined by other public interest and media groups, successfully argued that private entities performing functions for governmental agencies must do so transparently. Had the decision gone the other way, port authorities, local waste authorities, airports and a host of other entities acting on behalf of the government could have been privatized and their activities shielded from public scrutiny and review.

Still pending in the U.S. Court of Appeals for the Eleventh Circuit is a libel case against global news outlet CNN. At issue is whether Georgia citizens and companies should enjoy the state’s legislative protections for free speech if they are sued in federal courts located in the state. The lower court said no, a result that the foundation opposes. We believe that decision strips Georgians of much-needed protections. The case, which has been reported in the media industry press, is expected to be argued this fall.

Thank you for your support of the foundation and our mission. We want to hear from you. If you are aware of court cases that should be of interest to the foundation, let us know at info@gfaf.org. We need more eyes and ears watching what’s happening in our courtrooms. They are battlegrounds in the fight to protect and expand Georgians’ access to public records, meetings and proceedings.

Peter Canfield, a foundation board member, is a partner at Jones Day in Atlanta. The views and opinions expressed are personal to the author and do not necessarily reflect those of the firm with which the author is associated.

 

Ga. Supreme Court rules against restrictive interpretation of Sunshine Laws

Agencies can release information that qualifies for Open Records exemptions

The Georgia Supreme Court ruled this week that public information that otherwise might qualify for an Open Records Act exemption may be released if a government agency wants to disclose it.

“The justices’ unanimous decision makes clear the Georgia Supreme Court continues to be strongly committed to the value of open records,” said Georgia First Amendment Foundation President Richard T. Griffiths. “The open records law places no restrictions on public entities that want to be open and transparent, providing the best information to the public.”

In February, the foundation joined a friend-of-the-court brief in the caseBoard of Regents of the University System of Georgia and Campaign for Accountability v. Consumer Credit Research Foundation. The brief asked the state’s high court to overturn an appellate decision that had the potential to hobble Georgia’s Open Records Act.

The case began with a lawsuit filed by the Consumer Credit Research Foundation. CCRF, which is funded by the payday lending industry to support academic research on consumer finance, sought to block an open records request filed by the Campaign for Accountability. The Campaign for Accountability was asking for correspondence between CCRF and a Kennesaw State University professor who had received CCRF research funding.

Kennesaw State said it was willing to release the correspondence. CCRF then sued to block the release. A Fulton Superior Court judge ruled for Kennesaw State, concluding that although academic research exemptions gave KSU the authority to withhold the information, the university also had the right to release it. The Court of Appeals of Georgia reversed that decision, relying heavily on a 1995 case involving tax information that determined the state Open Records Act “mandates the nondisclosure of certain excepted information.”

The Supreme Court ruling on Monday overturned the appellate decision. “This is great news for the public’s right to know,” Griffiths said.

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Related media coverage

AJC:  Payday lending group loses lawsuit over record release

Daily Report: State high court rules KSU academic study correspondence is public record

Atlanta mayor to address 1st Amendment conference co-sponsored by the foundation

Atlanta Mayor Keisha Lance Bottoms will be the keynote speaker at the Feb. 23 Georgia Bar Media & Judiciary Conference focused on First Amendment issues and government transparency.

Keisha Lance Bottoms

Bottoms, who participated in the conference as a candidate last year and took office Jan. 2, is expected to address her administration’s perspective on government openness and accessibility to citizens and the media.

The Georgia First Amendment Foundation is a co-sponsor of the conference, scheduled 8:30 a.m.-5:30 p.m., Friday, Feb. 23, at the State Bar of Georgia Conference Center, 104 Marietta St. NW in downtown Atlanta. The annual gathering, in its 27th year, draws judges, attorneys, journalists and citizens. On the agenda:

  • A discussion of changes ahead for the Georgia Supreme Court and the state’s judicial system. Panelists will include Presiding Justice Harold Melton and retired Chief Justice Leah Ward Sears, among others.
  • A forum of candidates in the race for the governor’s office.
  • A conversation with U.S. Supreme Court experts and advocates on how gerrymandering and other First Amendment issues are likely to fare in the Court this term — and the possible ramifications for Georgia.
  • An exploration of cultural challenges to the First Amendment emerging from generational changes, the power of “fake news” and more.
  • Scenarios of how sexual harassment claims could play out in companies, courts and the halls of government in Georgia.

In addition, Georgia Public Broadcasting’s “Political Rewind” host Bill Nigut and his team of pundits and prognosticators will talk politics in a session broadcast live from the conference.

Find the complete agenda, a full list of sponsors and registration information at http://www.iclega.org/programs/9778.html. The fee for non-lawyers is $25. Attorneys may register in advance for $155 or at the door for $230; attorneys will receive continuing legal education (CLE) hours for attending. The admission fee includes lunch and parking.

Ga. Supreme Court to hear case on Open Records exemptions

GFAF argues against a restrictive interpretation of state Sunshine Laws.

The Georgia Supreme Court will hear arguments on Monday about whether public information that qualifies for an exemption under the Open Records Act must be withheld — even if a government agency wants to disclose it.

The Georgia First Amendment Foundation believes that the Act is intended to provide broad access to public information and allows agencies to opt out of exemptions. Earlier this week, GFAF joined three other organizations in a friend-of-the-court brief in the case — Board of Regents of the University System of Georgia and Campaign for Accountability v. Consumer Credit Research Foundation — asking the Supreme Court to overturn an appellate decision that, if upheld, could hobble Georgia’s Open Records Act.

In the brief, the Reporters Committee for Freedom of the Press, the Georgia Press Association, the Atlanta Journal-Constitution and GFAF sided with the Board of Regents and the Campaign for Accountability.

The case began with a lawsuit filed by the Consumer Credit Research Foundation. CCRF, which is funded by the payday lending industry to support academic research on consumer finance, sought to block an open records request filed by the Campaign for Accountability. The Campaign for Accountability was asking for correspondence between CCRF and a Kennesaw State University professor who had received CCRF research funding.

Kennesaw State said it was willing to release the correspondence. CCRF then sued to block the release. A Fulton Superior Court judge ruled for Kennesaw State, concluding that although academic research exemptions gave KSU the authority to withhold the information, the university also had the right to release it.

The Court of Appeals of Georgia reversed that decision, relying heavily on a 1995 case involving tax information that determined the state Open Records Act “mandates the nondisclosure of certain excepted information.”

The amicus brief, authored by GFAF board member Peter Canfield and three other attorneys from Jones Day, argues that the Court of Appeals misinterpreted the 1995 case, Bowers v. Shelton. The flawed result: a restrictive construction of the law suggesting that a public record that qualifies for exemption cannot be made available through an Open Records request — even if the agency wants to release it.

The Georgia First Amendment Foundation believes the appellate court’s narrow interpretation conflicts with the Open Records Act’s text, Georgia case law and the General Assembly’s intent. It also would make Georgia a national outlier. As the brief explains, almost every state takes the position that public records should be accessible, and where exemptions exist, public authorities may withhold information but are not required to do so.

live webcast of oral arguments is scheduled for Monday, Feb. 5 at 10 a.m.

Georgia’s 2017 right-to-know milestones

The public’s right to know in Georgia ended 2017 with a mixed scorecard.

On the plus side, the state’s high court affirmed that Northside Hospital and others similarly organized are subject to open records laws. Georgia senators decided to join their House counterparts, allowing video transmissions of committee meetings for the first time, starting in 2018.

But 2017 also had some setbacks. A jury found a citizen journalist guilty of a misdemeanor for an incident that arose from her recording of a political rally. A court ruled that unfiled court reporter recordings are not public records, a setback for legal affairs podcasts. And a remake of the state’s judicial watchdog appears to leave it less transparent, not more open, as legislators had promised.

Our year in review includes a detailed look at events that had an impact on public access and government transparency statewide, and how the Georgia First Amendment Foundation fought for citizens’ right to know.

January

February-March

  • Throughout the General Assembly session, the foundation encourages lawmakers to tread lightly on Georgians’ rights to access government records, meetings and proceedings and to practice free speech. The foundation engages with lawmakers on legislative proposals related to electronic filing of court records; redaction of portions of state Division of Family and Children Services records; reconfiguration of the Judicial Qualifications Commission; drone regulations; and so-called “upskirting” restrictions. (For a full recap, check out our post-session Legislative Watch.)

April

  • Georgia House of Representatives sends a remake of the Judicial Qualifications Commission to the governor to sign. Supporters say the revamp increases transparency and reins in an overly aggressive judicial watchdog. Critics say giving lawmakers control over the commission will politicize it.
  • The Atlanta Press Club honors longtime foundation Executive Director Hollie Manheimer with its Impact Award.

May

June

July

  • The Judicial Qualifications Commission remake becomes state law, as does new guidance for drone use and other measures passed by the 2017 General Assembly.

September

  • The newly remade Judicial Qualifications Commission dismisses a case against a Georgia judge whose actions led to jailing of the Fannin Focus publisher and his lawyer. The commission discharged the complaints after an investigation that did not include contacting those who filed complaints.

October

  • The state Senate agrees to permit video transmission of its committee hearings.
  • The foundation honors The Carter Center’s Global Access to Information Program and the late Fulton County Superior Court Judge Stephanie B. Manis at its 2017 Weltner Banquet.
  • A case involving the Undisclosed true-crime podcast ends with a Georgia Supreme Court ruling that unfiled court reporter recordings are not public records. The foundation opposes the Court’s position and suggests an alternative approach.

November

  • The Georgia Supreme Court affirms government transparency laws apply to Northside Hospital in a case the foundation closely watched and weighed in on through court filings. The ruling supports the principle that publicly created institutions are bound by state open records laws, even if they reorganize as nonprofits. In an indication of the statewide impact, the Savannah Morning News soon cites the ruling in its ongoing efforts to get records from a local hospital.

December

Help us keep defending your right to know by making a year-end, tax-deductible donation today. Your contribution will enable the foundation to capture generous matching funds from CNN — meaning you can double the impact of every dollar you give.

Ga. Supreme Court affirms government transparency laws apply to Northside Hospital

Fulton County’s Northside Hospital is subject to the state’s Open Records Act, according to a Nov. 2 opinion from the Georgia Supreme Court that sends the case back to the trial court.

Northside Hospital’s Atlanta campus

The justices made clear that the private, nonprofit hospital does its work “on behalf of” the governmental authority that created it in 1991 — making it accountable to the public.

If Northside seeks to shield records from public disclosure, the burden will now be on the hospital to prove that the records do not relate to that mission. The justices directed the trial court to make that determination for the particular financial records requested in the case.

“The Georgia First Amendment Foundation is delighted that the Georgia Supreme Court followed precedent and held that Northside Hospital is bound by the principles of open government transparency,” said Georgia First Amendment Foundation board member Richard T. Griffiths. “Transparency is the best way to maintain accountability to the taxpayers for whom Northside was founded — who paid for it and still effectively own it.

“Northside is a $2 billion-a-year institution in Fulton County,” Griffiths said. “Citizens need to be able to fully understand what’s happening with its operations and monitor whether it continues to focus on ‘the public health needs of the community,’ as was mandated by the authority’s resolution that created Northside Hospital.”

The Court also raised additional questions about Northside Hospital’s claim that “nothing it does is for or on behalf of the Authority.”

“Completely apart from the requirements of the Hospital Authorities Law, any suggestion that a lease of an exceptionally valuable hospital and related assets for minimal rent and the promise to operate the hospital wholly for its own purposes renders Northside simply an ordinary tenant might well raise constitutional questions,” the justices stated in Thursday’s opinion.

“We at the Georgia First Amendment Foundation believe government agencies should not able to spin off private entities — just as the Fulton County Hospital Authority did in creating Northside — so that they can avoid public records scrutiny,” Griffiths said.  “For this reason, we are delighted by the clear language of the Georgia Supreme Court decision.”

Read more about the Northside case, including a brief history of the fight for transparency into the operations of public hospital authorities.

 Check out media coverage of the Georgia Supreme Court decision: 

For more information contact John McCosh at mccosh3@comcast.net

Ga. Supreme Court: Public has no right to copy court recordings

The public has no right to copy court recordings, according to an Oct. 30 ruling by the Georgia Supreme Court. The Court’s position is opposed by the Georgia First Amendment Foundation.

As podcasts grow into an increasingly powerful form of communication, courts are regularly facing requests for the audio recordings of criminal cases. The foundation believes that an audio recording of a court proceeding is a court record subject to state Open Records laws, and that the public and media should be able to obtain a copy.

In a statement following the state Supreme Court’s ruling, the foundation said, “In criminal cases, the court reporters who make the audio recordings are typically paid with taxpayer dollars. The public should get the benefit of that expenditure. The Supreme Court could require that the audio recordings be filed with the trial court. Then, under the logic of the Court’s decision, the public and press would be able to obtain copies of them.”

The makers of the popular true-crime podcast “Undisclosed” brought the case heard by the Court. They were attempting to acquire copies of audio recordings from a murder trial in Northwest Georgia.

Here is a sampling of press coverage of the court’s decision:

 

 

Georgia attorney general urges high court to reverse public hospital records closure

Saying “open government is essential to a free, open and democratic society,” state Attorney General Chris Carr urged the Georgia Supreme Court to reverse a 2016 Georgia Court of Appeals decision that allowed closure of records from privately administered public hospitals.

The attorney general’s opinion had been requested by the Court in a case that pits Atlanta’s Northside Hospital against government transparency advocates, including the Georgia First Amendment Foundation. After hearing oral argument from the parties in mid-April, the Court asked Carr to weigh in.

In a brief, filed with the Court in late May, Carr argued that under the Georgia Open Records Act, “a private person or entity has an implied contractual obligation to produce any non-exempt record that it prepared, maintained or received in the performance of any service or function ‘for or on behalf of’ an agency.” The Court of Appeals decision that Carr wants reversed adopted a more restrictive test.

Read a short history of the case and check out these media reports of Carr’s opinion:

 

Ga. high court asks Attorney General Carr’s opinion on access to public hospital records

The Georgia Supreme Court has asked Georgia Attorney General Chris Carr to weigh in on whether the public should continue to have access to records of public hospitals, like Atlanta-based Northside, that are restructured to be operated by nonprofits.

The Georgia First Amendment Foundation recently argued before the Georgia Supreme Court that business records at Atlanta’s Northside Hospital should be open to public inspection.

The public’s right to access such records has been recognized since 1995. But a recent challenge by Northside cast doubt on that precedent, and, after hearing oral argument from the parties in mid-April, the state Supreme Court asked Carr for his views.

Here’s the history. In 1995, the Georgia Court of Appeals ruled in favor of a request by the Marietta Daily Journal for access to the records and meetings of privately restructured public hospitals in Cobb, Cherokee, Douglas and Paulding counties Then-attorney general Michael Bowers strongly supported public access, arguing in a friend of the court brief that “[t]hose who effectively control the functions or the assets of public agencies which are subject to the open government statutes are themselves subject to these same laws.”

The Georgia First Amendment Foundation, then less than a year old, weighed in as well, contending “the delegation of public responsibilities to private entities cannot operate to shroud the public’s window on their execution.”

GFAF continues to strongly believe that state law demands the operation of public assets like Northside Hospital be subject to public oversight, as it argued in a friend of the court brief filed with the Georgia Supreme Court in the Northside case in April.

The case will have an impact on Georgians’ ability to access records of public hospitals operated by nonprofits throughout the state.

Read recent media coverage of the case: