Proposed rule change could restrict access to Georgia courts

Judicial council to meet Monday on citizen use of electronics in courtrooms.

July 20, 2017—A statewide judicial council is scheduled to meet Monday to consider a rule change that could result in less public access to courtrooms.

The Council of Superior Court Judges of Georgia is meeting on St. Simons Island to evaluate proposed amendments to so-called “Rule 22.”

No texts or emails in Georgia courtrooms?

Rule 22 — officially “Uniform Superior Court Rule 22: Electronic and Photographic Recording of Judicial Proceedings”— was enacted in 1985, when Georgia was at the forefront of efforts to make court proceedings and records more open to the public.

Back then, Rule 22 was hailed as a model for how to encourage effective radio and television coverage of state proceedings. But the rule was last updated decades ago, before technology advancements led to the development of smartphones and other camera-equipped portable electronic devices now in the hands of most citizens.

In seeking to update the rule, the council has said it aims to establish a procedure for all citizens, not just the media, to request permission to record judicial proceedings. But some of the proposed changes to Rule 22 would take Georgia courts in the other direction, making them less welcoming to the public by restricting anyone other than lawyers from using phones or other electronic devices in the courtroom, even if the devices would not disrupt proceedings. For example, if revised as proposed, the rule would ban non-lawyers from using a computer to take notes or to silently send and receive texts or emails in the courtroom.

That’s contrary to the existing practice in Georgia and other states of encouraging judges to manage proceedings in ways that best serve the public interest and open government. In a number of states silent and non-disruptive use of electronic devices in courtrooms is expressly permitted.

In June, the Georgia First Amendment Foundation submitted an alternative proposal that would update the rule but not deter citizen access to courtrooms. Under the foundation’s proposal, silent use of portable electronic devices inside a courtroom would be presumptively permitted.

Judges could make exceptions, but only “as appropriate to maintain safety, decorum and order, and protect the integrity of the proceedings.” The judge would be required to “bear in mind the state’s longstanding policy favoring open judicial proceedings and anticipate that reporters and other public observers seated in the courtroom may properly use such devices to prepare and post online accounts and commentary during the proceedings.”

In submitting the foundation’s proposal, foundation board member and First Amendment attorney Peter Canfield told the council that the alternative proposal would make the rules “clearer and simpler” and ensure that they “serve, rather than conflict with, the state’s strong public policy in favor of open government.”

Media contact:

Kathy Brister, board member, Georgia First Amendment Foundation / 404-394-6103


Electronic filing bill could erode access to court records

Accessing court records could take longer and cost more if an electronic-filing measure making its way through the Georgia General Assembly passes in its current form. House Bill 15 tops the “negative” bills detailed in our updated Legislative Watch.

The bill requires electronic filing of most civil court records, but it contains no provision for protecting public access to such filings in a timely way — either at the courthouse or electronically. Instead, it arguably makes court records, now available to the public upon filing, subject to the state Open Records Act. That could enable a three-day waiting period, as well as other exemptions.

In addition, the bill might be interpreted to allow a charge up to $7 “per transaction” to inspect court records electronically, which could drive up costs for citizens seeking court records and chill public access.

The Georgia First Amendment Foundation would like to see House Bill 15 modified with provisions that:

  • Require clerks to keep free terminals or other means of free access to recently filed court records soon after filing.
  • Provide reasonably priced electronic access to members of the public.
  • Remove all references to the state Open Records Act.

Read our updated Legislative Watch to find out more about House Bill 15, including its sponsors, and get details on other proposals that would conceal potential conflicts of interests by donors to rural hospitals; reinforce public access to school accreditation records; increase transparency in state pardon and parole processes; and have other effects — negative and positive — on the openness and transparency of government in Georgia.

To stand a chance of becoming law, bills must move from the originating chamber to the other one by Crossover Day, March 3, 2017.


Ga. Supreme Court affirms court access but requires reconsideration of opinion

A recent ruling by the Georgia Supreme Court declared the public’s right of access to judicial proceedings “indisputable.” But the Court also declined to approve a 2013 Judicial Qualifications Commission advisory opinion that directed judges to keep courtrooms open in most cases.

The Georgia First Amendment Foundation strongly supported the JQC advisory opinion that a judge only could close a courtroom under extraordinary circumstances — and only after making a finding on why closure was necessary. In 2014, we recognized the JQC for the opinion, which immediately resulted in unobstructed public access to courts throughout the state. We also filed amicus briefs with the Georgia Supreme Court during its review of the JQC opinion.

We are disappointed that the Court did not endorse the broad First Amendment protections spelled out in the JQC’s advisory opinion. But we are pleased that the Court’s ruling emphasizes the public’s undeniable right to open judicial proceedings.

The effect of the Court’s Nov. 30 ruling is that the advisory opinion returns to the JQC for reconsideration. We will continue to promote open courts and access for Georgia citizens, and we will actively encourage the JQC to issue a revised opinion that advises judges to adhere to this important right.

Check out news reports about the ruling from the Atlanta Journal-Constitution, Albany Herald, Daily Report and WSB-TV.

Ballot initiative to abolish judicial watchdog group a bad idea

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 hydephoto11keeping 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.

First Amendment concerns exposed to Georgia’s summer sunshine

The story of a north Georgia journalist jailed after filing an open records request broke on one of the worst possible news days, a Friday leading into the Fourth of July holiday weekend.

Yet despite the distractions of cookouts and fireworks, people paid attention to news that Fannin Focus Publisher Mark Thomason and his attorney had been jailed on felony charges in a judge’s apparent attempt to silence criticism and restrict access to information.

The Georgia First Amendment Foundation swiftly decried the criminal charges and warned, “Retaliation for use of the Open Records Act will inhibit every citizen from using it, and reel us back into the Dark Ages.” On July 5, the foundation joined with the Atlanta Press Club, the Georgia Press Association and the Georgia chapter of the Society for Professional Journalists to release a statement demanding charges against Thomason be dropped. Hundreds of Georgia journalists received the emailed statement, and social media posts helped spread word.

REPORTERS FOR FREEDOM CLEANEDThe story attracted attention across the nation and beyond. A day after the joint statement went out, the international Committee to Protect Journalists featured the Fannin County saga at the top of its home page. On July 7, the district attorney who had brought the charges against Thomason filed a motion for dismissal. Her motion included a letter from Appalachian Judicial Circuit Superior Court Chief Judge Brenda Weaver, who had pushed for the indictments against the journalist.

It took nearly two weeks, and more pressure from the media and First Amendment advocates, for the charges against Thomason and his lawyer finally to be dropped by a judge on loan to the Appalachian Judicial Circuit. That happened July 18.

A federal grand jury is now investigating the affair, and Weaver has resigned as chair of the Judicial Qualifications Commission, which monitors judicial conduct statewide.

The story continues, and journalists and Georgia citizens aren’t losing interest. Open records-based stories have closely documented the tick-tock of events that led to Thomason’s jailing. The court operating account the judge once declared outside the reach of Georgia’s Open Records Act now is thoroughly detailed in news coverage.

The next chapter in the story is still to be written, perhaps centered on findings by the federal grand jury that subpoenaed records. Those presumably include the court operating account records Thomason asked for in the first place.

  • This post by John McCosh, GFAF board member

Open government and media groups commend move to dismiss charges against Fannin County journalist jailed for requesting public records

ATLANTA—July 7, 2016—A move to dismiss charges against a Fannin County newspaper publisher jailed after requesting public records was the right action for officials to take, say a group of Georgia government transparency and media organizations that on July 5 had demanded withdrawal of the charges.

The Georgia First Amendment Foundation, Atlanta Press Club and Georgia Chapter of the Society of Professional Journalists commend Appalachian Judicial Circuit District Attorney Alison Sosebee’s July 7 request for 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.

Sosebee’s motion for dismissal included a letter from Appalachian Judicial Circuit Superior Court Chief Judge Brenda Weaver, who was named on one of the accounts included in Thomason’s open records requests and had pushed for the indictments against the journalist. In the letter, dated July 6, Weaver acknowledged that protecting citizens’ rights to report on perceived wrongs is important to “the integrity of our system of government.”

“As a citizen and certainly as a Judge, I in no way want to diminish or infringe upon the First Amendment Rights we have under the Constitution of the United States or the Constitution of the State of Georgia,” Weaver wrote.

Weaver’s acknowledgement and the district attorney’s request for dismissal of charges are victories for government transparency and the exercise of First Amendment rights for all Georgia citizens.



Hollie Manheimer, Executive Director

Georgia First Amendment Foundation