By Maggie Lee
When Lowndes High School student Kendrick Johnson was found dead in a rolled-up gym mat at his school, CNN got school surveillance video and other documents concerning the bizarre death, but went to court to force local officials to give up records.
That need to resort to an expensive legal process is just one high-profile example of why critics say there’s a heavy curtain that stands between between Georgians and some public business.
A Gulch-size exception in open records law means Georgia can and is keeping secret whatever it’s offering to Amazon to lure the online shopping giant to build a headquarters here, in the name of protecting intelligence about its bid from competing states.
Agencies sometimes request huge redaction fees for records.
And among public employees and officials there’s a lack of knowledge about open records and meetings law. The state attorney general gave that as a reason why his office has spent the last year on an “Open Government Tour,” going around the state, explaining to public employees and officials how they’re supposed to deal with public requests for information and entry into meetings.
But as court interpretations and new technology — like police body cameras — enter public life, transparency advocates see a few new problems on the horizon.
“I think there are really four areas right now where I feel like over the last few years we’ve lost some ground in terms of access to records or access to information,” said Tom Clyde, a First Amendment attorney who’s also a board member of the Georgia First Amendment Foundation, at its legislative breakfast on Thursday.
One is police body camera video. He said Georgia law enforcement agencies handle video in a wide variety of ways, some essentially refusing to provide it to the public. The general “tenor” of two bills that have passed, he said, allow the public to get videos that are made in public places, not in private areas like homes.
But he said as a practical matter, public access across Georgia is very uneven.
Another is what’s called the “investigative records exception.” He said the point of that is to allow law enforcement to keep their investigations secret while they’re underway.
He said it’s not supposed to allow a troubled agency, one under investigation, to conceal its records. For example, the sheriff and the district attorney in Savannah turned down media requests for documents about the death of a man in the county jail. Officials argued that only “individuals” were under investigation and subject to prosecution, that no “agency” was under investigation for the death. Courts agreed that indeed only records relating to “agencies” under investigation must be released, and the records stayed under wraps.
And he named two more holes that have appeared. The first, in a blow to podcasting, specifies that courtroom recordings made by court reporters are not subject to judicial sunshine laws. The last is a ruling that says fines for breaking sunshine laws will apply to individuals, not the cities or counties or agencies where they work. Clyde said he doesn’t think fining individuals was the intent of the law and he suspects the ruling means fines won’t be used so much.
Georgia last made a major update of its sunshine law in 2012. One of the key gatekeepers on bill that was State Rep. Wendell Willard (R-Sandy Springs), who still chairs the state House Judiciary Committee, as he did then.
Willard, also at the GFAF breakfast, said the intent was to improve access to records and to do some clarification, though he told Clyde that he might need to come back to the legislature to work on clarifications.
“I think the people of the Georgia General Assembly as a whole are very supportive of having access to records by the public,” said Willard.
Of his committee, Willard said, “when we have a bill coming through dealing with that were generally very open to try to have proper laws put in place to ensure the public is getting access.”
The Legislature itself, however, is not subject to open records or open meetings law. Its committees need not provide advance notice of or agendas for their hearings, nor updated texts of bills they’re discussing.
Cobb County Commissioner Lisa Cupid, also a GFAF board member, said at the breakfast said that sometimes it’s hard to believe she’s “on the other side” of things, as an elected official. (She’s probably most famous outside of her district for casting the lone vote against the deal that brought the Braves to Cobb. She said at the time that she hadn’t had enough time to review the deal, which had been kept tightly under wraps.)
At the breakfast, she said the open records process doesn’t have to be adversarial, and suggested a different approach might actually work better, getting the requester their documents more quickly.
“When you’re getting documents through open records, those come at a cost, a cost per page, a cost of a person’s time that they’re spending getting those open records,” Cupid said. “If I can stress anything, it’s don’t necessary presume that the person who is the elected official necessarily is purposefully or adversarially withholding information from you. They may actually want you to get information because they may see that you can shine a light on a matter more than they can, by bringing it out in the open.”
But if that doesn’t work, the office of Attorney General Chris Carr operates an Open Government Mediation Program, which it reports “helped over 260 citizens” in the 13 months to Jan. 31.
The program has a website where folks can drop sunshine questions or allegations that officials have done them wrong, denied them records or access to meetings.
The office “found that many of the issues that we hear about occur not because of malicious intent, but rather due to a lack of understanding or lack of knowledge about what the law in Georgia is,” a statement from the office published this week says.
It’s because of that, the statement says, that it held the Open Government Tour.
At least a few reporters (including this one) have made complaints to the program. And a couple of TV stories acknowledge help from the AG’s program in getting documents about then-Mayor Kasim Reed’s spending on executive protection SUVs and credit card bills racked up by one of his top staffers.
But even so, it took attorneys for private companies to challenge officials over the Kendrick Johnson video, the Chatham County jailers’ records, and a broad gag order during the hearing in the Tara Grinstead murder case.
Not a quick or cheap prospect.