Clearing a path to more open government - by Hyde Post, President of the Georgia First Amendment Foundation, June 6, 2012
Today, Georgians legally have more power than ever to examine and review the records and meetings of their local and state governments.
The Legislature’s 2012 rewrite of Georgia’s open government laws, on paper, should help make government more transparent. The challenge will come in how the new provisions are interpreted by the courts and public officials — and how citizens use the tools the law provides to engage with — and keep an eye on — their government.
Georgia Attorney General Sam Olens, who championed changing the law and played a critical role in making sure citizen access was strengthened in its language, has pledged his office will be aggressive in supporting the citizen empowerment intended by the changes.
But it’s also a given that there will be some public officials who won’t comply. They will simply ignore or actively resist the parts they don’t like. It has always been that way.
Those officials could face harsher penalties for a lack of compliance. Strengthened penalties for violating open government laws tended to receive the lion’s share of press attention about the legislative changes.
Under the revised law, if a citizen illegally is denied access to a public record or a meeting, the violator could face misdemeanor criminal charges and a fine of up to $1,000 for a first violation and $2,500 for a subsequent offense. It used to be a $100 fine.
In practice, though, for a public official to be charged with a criminal offense, a prosecutor (the solicitor, district attorney or the attorney general) would have to be able to prove the public official “knowingly and willfully” violated the law. That is the same high standard of proof that was in the law before, and the number of successful prosecutions of public officials for violating it over the past 30 years can be counted on half of one hand.
The revised law does lower the civil standard and says that if a citizen sues a public official or government for non-compliance with the law, and the court concludes the government was negligent, the court can impose a fine of up to $1,000, or $2,500 for a subsequent violations. Before, there were no fines for civil violations.
However, litigating against local government still can require deep pockets. Remember, the other side isn’t using their money to pay for their defense; they’re using your tax dollars. If you win what often can be a drawn-out battle to get access to a police report or government contract or whatever, recovery of your attorney’s fees is allowed, but not required. And, historically, judges in Georgia have rarely forced local governments to pay anything close to the full price if they lose.
In essence, it is probably fair to say the amended laws now have baby teeth to help punish open government sinners.
But the value of the legislative changes is actually found elsewhere.
The real benefits for citizens include reduced copying fees for public records, down from a quarter per page to a dime, and strengthened language on electronic records that can take additional cost out of a records request. The open meetings law has been strengthened to insist that all final votes, including votes on settlement negotiations and real estate acquisitions, must be taken in public and that minutes of executive sessions must be kept in case someone later challenges whether a closed meeting was legal.
Moreover, the new open records law now has a preamble which may be its greatest strength. It states that the “General Assembly finds and declares that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.”