Are Georgia Sunshine Laws Under Assault?

Open records and meetings are our best insurance against government corruption

“When there is not openness, corruption grows rapidly.” — Vernon Keenan, director of the Georgia Bureau of Investigation 

Sunshine laws are an essential bulwark against back room and other illicit deals that often went unnoticed before they were available. Without transparency and accountability, there was a great temptation by certain public officials to act as little dictators instead of in the best interest of the public that they were supposed to serve. There was an element of noblesse oblige that is still somewhat common among people who are supposedly there to serve the people, but instead treat the public often times like they are doing us a favor instead of their jobs.

In the title to this article I asked the question if the Sunshine Laws are under assault and the short answer:  It Depends. I always hate those answers and so do you I imagine. The longer answer is Yes and No depending on a lot of factors. Georgia has a lot of counties, too many in fact as I wrote here. With 159 counties it really depends on the culture of the county you are requesting information. It quite frankly also simply depends on the personality and work ethic of the clerk you will deal with. If they are lazy and view these requests as just added work they will resent your request and may even be hostile in an attempt to dissuade you from making the request at all.

If the top brass in that town or county laid down the law with explicit instructions to assist citizens with their record requests then you have a better shot at seeing a smile and not a scowl. But, chances are few in your town even know much about what the actual law dictates. They might have received a memo years ago and browsed it so in addition to making the request, chances are you might need to educate them on the actual law itself as well. Don’t expect any payment or gratitude for your civics lesson though. Be friendly but firm and persistent. The law is on your side and if they try and overcharge you, delay, dissuade you there are remedies you can take which I explain below.

This article will give you the most important points you need to know that can be printed and taken with you. It also provides a great video and very detailed resources linked at the bottom for more in-depth knowledge. The law may look complicated but in reality is is very simple. I even provided a sample Request Form you can use and just fill in your information. With this guide you should be fully equipped to attend any Open Meeting and record video or obtain any document or file available to you with little fuss and absolutely no muss. No guarantees though on the temperament of the bureaucrat you will encounter but at least now with this knowledge they will not be able to turn down your request quite so easily.

Examples of a Backlash against the Freedom of Information Act in Georgia

It has come to my attention that there has been a backlash by certain officials who are still trying to make it extremely difficult, time consuming, and also outrageously expensive for citizens to request records that they have every right to under the Georgia Sunshine Laws. I felt it was time for a refresher course for citizens seeking to make record requests to understand their rights and also for public officials that may not have been following the spirit or even the letter of the law. I have received emails from all corners of the state from citizens in Rome, Columbus, Rome, Norcross, Dublin, Macon, and Albany asking for help with open record requests. Hopefully this guide and tips will allow you to stand your ground if they try and prevent you from recording a meeting or refuse an open records request that is absolutely permitted.

I have included a video taken by Nydia Tisdale of Stefan Ritter the Senior Assistant Attorney General for Sam Olens in Georgia discussing Georgia Sunshine Laws which is a great resource for any citizens or public officials looking to get a quick primer course. Readers of my site may recognize the name Nydia Tisdale. Only recently she was violently manhandled by a Dawsonville deputy simply for filming a political rally to which she was invited. I was the only site in all of Middle Georgia that covered this news in Middle Georgia even though it gained statewide and national media attention.

Nydia is also significant because she filed and won a lawsuit under Georgia Sunshine against the city of Cummings, GA and Mayor Henry Ford Gravitt because they ordered her to stop filming and also to leave a city council meeting.  Georgia’s Open Meetings Act expressly provides that visual and sound recording during open meetings shall be permitted. So the next time a city council or a board of education or any other public meeting tries to tell you video is not permitted please refer to this link. 

The video itself is also significant since Stefan Ritter came to Macon and gave almost a verbatim presentation to our superintendent and the Bibb County Board of Education who had been doing their best to make any and all open record requests as expensive, time consuming, and difficult as possible or had simply ignored or refused permissible requests altogether. However, it must also be noted that many citizens here in Bibb County as well as in Laurens county that have desperately sought out the assistance of the Attorney General’s office for possible and very serious allegations with supporting documents were basically given the run around by Stefan Ritter and Sam Olens. What good are Open Records request if you find serious irregularities only to be told that nothing can be done? Good thing this is an election year so keep that in mind as it is the opinion of this Macon Watchdog organization that Sam Olens does not appear to be interested in pursuing potential corruption of local boards of education regardless of how much documentation you can provide.

The opponent for Attorney General is Greg Hecht. At this time I cannot yet give an endorsement to Greg Hecht until I speak with him and ask how he would handle the cases in Bibb and Laurens county differently. If I feel he is more of a corruption fighter instead of simply a corruption observer I will then be able to offer an endorsement.

If Mr. Hecht reads this article I encourage him to reply in the comments to this question.  If citizens presented him a mountain of evidence pointing to widespread malfeasance, corruption, collusion to the tune of over $50 million in misappropriated or just missing funds would be  as inclined to simply shrug them off and dismiss their concerns the way the current Attorney General’s office has allegedly responded according to reports. I am referring to allegations of widespread irregularities involving former superintendent Romain Dallemand in Bibb and the push to build two new schools in Laurens County. In both cases the Attorney General’s was extremely unhelpful and uninterested in taking their concerns seriously. It was far simpler to dismiss them than do any actual investigation. There are many very angry people in both of these counties that feel betrayed and abandoned that would like an answer to this question and are hoping things could improve with a new AG. 

I am also very concerned at the way Sam Olens has been covering up Nathan’s Deal’s ethics problems and was recently fined. He seems like a very bright and affable guy but might be better in a job that didn’t require someone with prosecutorial skills which he lacks. Georgia needs an Attorney General ready to tackle corruption not someone afraid to rock the boat or upset certain groups or people in power.

Below are the most important fact you need to know about Georgia Sunshine Laws.

If you want to print out a boilerplate Georgia Sample FOIA Request, click Here.

Open Records Act

The Georgia Open Records Act governs which government records are to be open for public inspection. The law can be viewed by clicking here.

Open Meetings Act

The Georgia Open Meetings Act governs which governmental meetings are open to the public. The law can be viewed by clicking here.

Facts You need to Know About Georgia Sunshine Laws

The Georgia Open Meetings Act covers the meetings of “the governing body of an agency” and committees created by its members. The term “agency” includes the following:

• Every state department, agency, board, bureau, commission, public corporation, and authority;
• Every county, municipal corporation, school district and other political subdivision;
• Every department, agency, board, bureau, commission, authority and similar body of each county, municipal corporation or other political subdivision of the state;
• Every city, county, regional or other authority established pursuant to state law; and;
• Non-profit organizations that receive more than one-third of their funds from a direct allocation of state funds from the governing authority of an agency.

Some examples of “governing bodies of agencies” covered by the Open Meetings Act include state boards and commissions (such as the State Board of Medical Examiners and the Soil and Water Conservation Commission), county commissions, regional development authorities, school boards, library boards, hospital authorities, planning commissions, zoning boards, boards of trustees of public universities, and non-profit corporations operating public hospitals. For additional details on government bodies covered by the Open Meetings Act, see the Open Government Guide: Georgia.

The Georgia Open Meetings Act does not apply to federal government bodies.

What is a Meeting?

In addition to determining what government bodies are covered by Georgia law, you’ll need to figure out which of their gatherings or activities constitute a “meeting” for purposes of the law (and therefore must be open to the public). Under the Georgia Open Meetings Act, a “meeting” is any gathering of a quorum of members of a governing body of an agency (defined above) to discuss or take action regarding official business or policy. The term also applies to information-gathering and fact-finding sessions called by these bodies where a quorum of members are present and the session relates to the body’s public business.

Governing bodies may hold meetings by by written, telephonic, electronic, wireless, or other virtual means. However, these electronic meetings must be open to the public and are subject to the notice requirements outlined below. While the law is not certain on this point, it appears that email communications between members of a governing body may constitute a “meeting.”

What Are Your Rights?

Attending Meetings

The Georgia Open Meetings Act give “the public” the right to attend the meetings of governing bodies of agencies, with exceptions for closed meetings discussed below. Georgia law does not limit access to meetings to a specific category of people or a profession, such as “the traditional press.” Anyone may attend.

It is unclear whether your right to attend public meetings includes the right to participate or comment. As a matter of practice, however, some state and local agencies give the public an opportunity to speak at meetings.

Notice

The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Georgia law requires governing bodies of agencies to establish a set schedule of regular meetings and to post notice of this schedule at a conspicuous location at its regular meeting place. The posted notice for regularly scheduled meetings must include dates, times, and locations for the meetings. See Ga. Code § 50-14-1(d). Governing bodies are required to post agendas for regularly scheduled meetings as far in advance as possible, but not more than two weeks beforehand. See Ga. Code § 50-14-1(e).

Governing bodies of agencies may also hold meetings besides those regularly scheduled, but they must provide notice to the public at least twenty-four hours beforehand. A governing body must post this notice at the place of its regular meetings, and it must give written or oral notice to the local newspaper where notices of sheriff’s sales are published or another newspaper with greater circulation in the area. See Ga. Code § 50-14-1(d).

Minutes and Recordings

The Georgia Open Meetings Act requires governing bodies to record minutes of their meetings and to make them available to the public for inspection. The minutes must contain, at a minimum, the names of the members present at the meeting, a description of each motion or other proposal made, and a record of all votes.

Public Meetings Audio and Video recordings

Georgia law expressly provides that “[v]isual, sound, and visual and sound recording during open meetings shall be permitted.” Ga. Code § 50-14-1 (link is to the entire code; you need to click through to Title 50, Chapter 14, and then choose the specific provision).

It may also shock you to learn that executive session do not need to be kept top secret. Please read my newest article that explains more about Executive Sessions here. 

An Exception: Closed Meetings or Sessions

The general rule is that all meetings of governing bodies of agencies must be open to the public. A governing body may exclude the public from a portion of a meeting known as a “closed session” if it identifies a specific statutory exemption. Under Georgia Open Meetings Act, a governing body may hold a closed session when it is dealing with one of nine subject-area exemptions found in Ga. Code § 50-14-3. The nine exemptions are:

• staff meetings held for investigative purposes under duties or responsibilities imposed by law;
• deliberations and voting of the State Board of Pardons and Paroles;
• meetings of the Georgia Bureau of Investigation or any other law enforcement agency in the state, including grand jury meetings;
• meetings when any agency is discussing the future acquisition of real estate;
• meetings of the governing authority of a public hospital or any committee thereof when discussing the granting, restriction, or revocation of staff privileges or the granting of abortions under state or federal law;
• meetings when discussing or deliberating upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee;
• adoptions and proceedings related thereto;
• meetings of the board of trustees or the investment committee of any public retirement system when such board or committee is discussing matters pertaining to investment securities trading or investment portfolio positions and composition; and
• meetings when discussing any records that are exempt from public inspection or disclosure pursuant to paragraph (15) of subsection (a) of Code Section 50-18-72, when discussing any information a record of which would be exempt from public inspection or disclosure under said paragraph, or when reviewing or discussing any security plan under consideration pursuant to paragraph (10) of subsection (a) of Code Section 15-16-10.

If a governing body is dealing with one of these exemptions, then it must also vote to close the meeting by a majority of members present and record the reason for the closure in the minutes. A governing body must keep separate minutes for closed sessions. These minutes are not made available to the public, except those portions reflecting the vote and purpose for closure. The chairperson or presiding official must also execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or closed session was devoted to matters within the exceptions provided by law and identifying the specific relevant exception. Ga. Code § 50-14-4.

What Are Your Remedies If You Are Denied Access?

If you know in advance that a meeting will be closed, and you believe that closure would violate the Georgia Open Meetings Act, you should make a written demand for access on the chairperson of the governing body or its attorney. The demand should remind the governing body of its obligations under the Open Meetings Act and ask it to identify the statutory exception it is relying on to close the meeting. If the governing body refuses your demand for access, you can sue in Georgia Superior Court. If you are successful, a court may order the governing body to make the meeting in question open to the public.

You may also sue to have a court invalidate past actions of governing bodies taken in violation of the Open Meetings Act (but only if you file suit within ninety days of the violation) or order the disclosure of minutes from an improperly closed meeting. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate.  If you win in a lawsuit against a governing body for violation of the Open Meetings Act, a court may force the losing party to pay your attorneys’ fees if it determines that the violation was “without substantial justification.”

The state may also pursue criminal penalties against members of a governing body who violate the Open Meetings Act.

If you show up at a meeting and the governing body tries to exclude you from it, you do not have time to get a court order. You should remind the presiding officer (or whoever is denying you access) that Georgia Code § 50-14-1 requires that the meetings of the governing bodies of state or local agencies be open to the public unless there is a specific statutory exemption. You should insist on your right to attend unless the presiding officer can identify for you the statutory authority for closing the meeting. If the governing body still insists on excluding you, you have no choice but to leave in an orderly fashion. You may then consider filing a lawsuit.

Other Great Sources:

• A Citizens’s Guide To Open Government
• Georgia Sunshine Laws Handbook
• A Guide to Georgia’s Open Meetings and Open Records Laws For Municipal Officials

A Citizens’s Guide To Open Government

Georgia Sunshine Laws Handbook

A Guide to Georgia’s Open Meetings and Open Records Laws For Municipal Officials