Freedom of Information - Clayton News Daily by MyCounty Papers

SPECIAL EDITION

FREEDOM OF INFORMATION

Clayton News Daily FRIDAY, NOVEMBER 29, 2013 Clayton County’s News Source

www.news-daily.com

Open government — It’s the law “ BY JIM ZACHARY

jzachary@news-daily.com

“Government belongs to the governed, not the governing.” JONESBORO — These words resonate in our newsroom as we work each day to provide local news, features and commentary. It is our commitment to these principles that guides us as we serve the citizens of Clayton County. This special edition of

the Clayton News Daily is designed to empower citizens and inform elected officials for the purpose of refining and improving our community. The Clayton News Daily believes that open government is good government. In this edition, reporters Kelsey Cochran, Rachel Shirey, Heather Middleton, Johnny Jackson, Kathy Jefcoats and Curt Yeomans take a look at government transparency, the Freedom

of Information Act, the practices of local officials and the laws of the state of Georgia. You will find articles dealing with your access to public documents, your rights to request records and your reasonable expectation of knowing what elected officials are doing with taxpayers dollars. We have provided explanations for how to make an open records request and instructions for how to pro-

ceed if a request is denied. We have cleared up common misconceptions about executive sessions held by local governmental bodies and explained exactly what the Georgia Open Meetings Act says about the public’s access to the public’s business. Public notice requirements, that must be met by local government, are fully explained as well.

The Clayton News Daily believes that open government is good government.”

Jim Zachary

— Editor Jim Zachary

See LAW, Page 5A

PUBLIC RECORDS

Citizens have recourse if denied access BY HEATHER MIDDLETON

hmiddleton@henryherald.com

Clayton County commission Vice-Chairman Michael Edmondson asks a question during the public interviews of fire chief candidates Nov. 5. Clayton News Daily used open records requests to gain a full list of applicants for the position as well as their background information. (Staff Photo: Curt Yeomans)

‘Seek the truth’ Transparency battles put citizens first BY CURT YEOMANS

cyeomans@news-daily.com

JONESBORO — Clayton County officials have, for the most part, been compliant with Clayton News Daily’s open records requests, but the past year has shown that quests for documents can sometimes be prolonged battles. That has been punctuated in recent months as the newspaper has petitioned Forest Park officials to obtain access to documents detailing negotiations to settle a lawsuit filed by former Councilwoman KarenBrandee Williams. The settlement cost the city $35,000 and town leaders have claimed it was negotiated by former City Manager John Parker. Parker, however, has denied that assertion is true. News Daily reporter Kathy Jefcoats has been seeking the city documents detailing the negotiations since Aug. 21 in an attempt to confirm the city’s claims, but she has still not received them. “It’s frustrating because Forest Park residents deserve to know who is responsible for spending their money,” said

Clayton News Daily obtained this stack of county documents last month through multiple open records requests for various records. Many of the documents pertained to the county’s fire chief search. (Staff Photo: Curt Yeomans)

Jefcoats. “Officials came out so strongly against the settlement at first, claiming to not know how it happened, but now seem unwilling to help

in getting the information out to residents on exactly who is responsible.” The Forest Park case shows the importance of obtaining

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access to public documents for the purpose of sharing that information with readers.

All Clayton County citizens have a right to know what their government is doing. Each citizen has the right to access public records. The Georgia Sunshine Laws are in place to ensure each citizen can request and receive documents pertaining to their government. To get documents, citizens can make an Open Records request. The more specific the request, the better. Per the sunshine laws, governments have three business days to honor a request or explain why the documents are unavailable. If citizens feel they should have access to a denied request there are steps they can take to repeal. First step, citizens can make a second more formal request for documents. Jim Zachary, editor of the Clayton News Daily and Herald Daily Herald said it is generally best to make an informal request first. “There is no need to be heavyhanded,” Zachary said. “Most people who work in local government offices want to do the right thing and will have no problem providing requested documents, but remember, honey almost always works better than vinegar.” However, he said citizens need to understand that on those occasions when government officials deny a request, they should be persistent because, requesting public records should never be viewed as something controversial or out of the ordinary. “They’re asking for something that belongs to them,” Zachary said. “They should be able to just go into a place like City Hall and ask.” If an initial request is denied, citizens can use a more formal route by submitting an Open Records Request either using a form provided by the government agency or writing a letter. When a local government denies a request they are required — by law — to not only give the reason for the denial but to specifically state the code section in state law they are using as the basis for denial. If the second request is denied and a citizen feels the laws are being violated, they can contact the Georgia Attorney General’s office to see what the next step is to obtaining the documents. The Attorney General’s office has an Open Government Mediation Program in place to help

See BATTLES, Page 5A

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perspectives

J.K. Murphy, Vice President, SCNI jk.murphy@scompapers.com

news-daily.com

Jim Zachary, Editor

jzachary@news-daily.com

PAGE 4 A r FRIDAY, NOVEMBER 29, 2013

Jim Zachary

Government belongs to the governed Government does not always know best. In fact, it seldom does. Government cannot be of, by and for the people unless it’s before the people. It should never be forgotten that government belongs to the governed, not the governing. Whether talking about the federal government in Washington, D.C., the General Assembly in Atlanta, the county commission, the school board or city council, government does not know better than the citizens it represents. Those elected to office should never usurp the will of the public or assume they know more about what is right for their community than the public at large. We do not elect officials to think for us. We elect them to represent us. That is what is meant by the word “republic,” a representative form of government. Given a choice between the will of elected officials and the will of ordinary citizens, we should always defer to the people. The people we elect should never be so audacious as to abridge the rights and interests of citizens. Public service is not autocratic rule. Being elected to office should not be viewed as being placed in a position of authority and privilege. The Declaration of Independence provides, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” These words are primary to our entire form of government. All real power belongs to the governed, citizens, and not to the governing, elected officials. We have protections in place, laws, to prevent a governing class from seizing power away from citizens. The problem, however, is that citizens and the media have become accustomed to looking the other way while officials have become accustomed to looking out for themselves. Then intention of a public servant should never be to simply do what is necessary to get re-elected. Their intention should always be to adequately, competently and ethically represent the interests of the citizens they are elected to serve.

letters to the editor The Clayton News Daily encourages its readers to comment on public policy and issues that have community interest. Letters should be brief and address relevant issues, concerns or community matters. Personal disputes and consumer complaints will not be considered for publication. Letters may be edited or rejected if they contain potentially libelous statements or inappropriate language. A full name and city of residence must be published with each letter. Letter writers must provide their address and a daytime telephone number for verification purposes. Letters to the editor can be submitted by traditional mail to: Clayton News Daily, P.O. Box 368, Jonesboro, GA 30237, dropped off at our office at 138 Church Street, Jonesboro or emailed to editor Jim Zachary at jzachary@news-daily.com.

our view

Why government transparency matters Why does local government transparency matter? Simply speaking, open government is good government, or at least it is better government. As we champion open and transparent government in our county, we are not “against” elected officials. Rather, we are “for” citizens. Even when elected officials believe they are doing what is in the best interest of citizens, even when their motives are pure and their objectives are sound, even when they are not doing anything wrong, they still must be fully accountable to citizens. Government transparency is an important issue that matters and we will continue to try and explain it in ways that hopefully will eventually resonate with all our elected officials. We are on your side. We want you to get it right. In the end, every thing you do, and every thing we do, should be all about what is in the best interests of the citizens. Public service is not private business. In private enterprise, a chief executive officer or a board of directors must answer to their stockholders. In public service, elected officials must answer to their stakeholders — citizens. Sometimes this can be difficult. However, just because

something is difficult does not mean it is not necessary. Elected officials have a tendency to complain about the media when a lack of accountability or public visibility is highlighted in news coverage or editorials. They like to say we don’t understand the law. They like to say they are only doing what they have to do. They like to say that if we really understood what they were doing behind closed doors that we would not be saying they need to be more transparent. They are wrong. They may mean well. But, they are wrong. Yes, doing the public’s business in public may have a downside. It may compromise some initiative. It may expose something they don’t want to come to light. We get that. It still does not make it right. Public service comes at a price. Being a public employee comes at a price. A part of that price is public exposure. If an elected official or a public employee does not like that, want that or hopes to avoid that, then the private sector is their best option. We encourage elected officials to look at the issue of government transparency as a

citizen and not as an elected official. Every decision you are making, even decisions about public employees, land deals and lawsuits are decisions that you are only empowered to make by virtue of the fact you have been elected to serve the public. You are doing the public’s business and the general public has a right to know about its own business. The most common mistake that elected officials make is that they allow themselves to be told by attorneys that they must do certain pieces of business behind closed doors. Despite what you have been told, that is not true. Georgia’s leading authority on the state’s Open Meetings Act has said repeatedly there is no law that requires officials to go into executive session. Rather, he has explained, the law allows them to convene in executive session, under very specific circumstances. The law allows it. It doesn’t require it. There is a huge difference. Any elected officials who say they are legally required to conceal public business are simply misinformed. Perhaps for years, no one has called concealing public documents or over using the executive session privilege into question, so local officials are simply doing business as usual.

That does not make it right. Because something has always been done or because a lawyer advises you can legally do it, does not mean in any way that it is what you should be doing or have to do. There are some city and county governments in Georgia that almost never go into executive session. There are some states in the U.S. that limit executive sessions to the extent that officials can only go behind closed doors in the midst of an actual, real, lawsuit for the sole purpose of discussing legal strategy, resulting in a situation where closed doors meetings are very rare. Call it closed door, call it back room deal making or call it executive session, out of the public eye is out of the public eye and even if what you are doing is acceptable with citizens, when you do it in the dark it breeds suspicion and begs for questioning. Instead of justifying a long-standing practice, just consider the fact that other cities and counties in Georgia and all jurisdictions in some states do almost every piece of public business in public. It can be done. It is being done. Why can’t we do it here? We understand it is often not the easy thing to do. It is, however, always the right thing to do. — Editor Jim Zachary

Transparency: Not Republican, not Democrat Openness in government is not a liberal, conservative, Republican, Democrat, independent, tea party or libertarian issue. The importance of transparency in local, state and federal government should transcend parties and political ideologies. Checks and balances provide few checks and little balance when officials broker deals behind closed doors and conceal documents that contain important information that citizens have the right, and often the need, to know. Local government has the biggest impact in the lives of citizens on a day-to-day basis. Whether it is in the form of property taxes, sales taxes, personal property taxes, business taxes, state-shared dollars or federal grants, loans and funding, local government is 100 percent taxpayer funded. The decisions being made, the

monies being spent and the records being kept by city hall, the county commission, the board of education or the utility district all belong to liberals, conservatives, Republicans, Democrats, independents, tea party volunteers, libertarians and even politically disinterested individuals.

All stakeholders have a stake in open meetings and public records and should care about transparency issues. Bipartisanship is like the weather — everyone talks about it, but no one does anything about it. The difference is that while a person can’t change the weather,

officials could choose to work together. The lack of and need for true government transparency should be a truly bipartisan cause. We encourage all our local elected officials, regardless of party affiliation or ideology, to commit themselves to more openness in government. Any elected official who truly cares about public service in a real and meaningful way and fully understands what a representative form of government is all about, should not only champion openness in government, but should be the most effective watchdog, looking out for the public trust. Sadly, those kinds of elected officials are hard to find. We encourage those officials who do care and who do understand, to become strong advocates for transparency on their respective elected body. — Editor Jim Zachary

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Access

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SAMPLE OPEN RECORDS REQUEST

You will find information about how the court system works and how to obtain basic police reports. Another community service provided in this edition is an organizational chart of county government and a comprehensive listing of records custodians throughout local government needed when making an open records request. The Clayton News Daily takes its public service role seriously and is committed to being the eyes and ears of Clayton County, providing vibrant coverage of the many positive things happening in our community each day and serving as a government watchdog and the Fourth Estate of local government. We hope you find this special edition informative and empowering.

r'SPN 1BHF " The newspaper has filed a complaint with the Georgia Attorney General’s office to gain access to the records after months of debating with the city over the documents. The city argues the documents are protected under attorney-client privileges but attorney David Hudson, an expert in Georgia’s Open Records Law, said the Georgia Supreme Court has ruled otherwise on two occasions. Last week, Senior Assistant Attorney General Stefan Ritter agreed with Hudson in a letter to Forest Park leaders. “Please note, in this regard, that while communications between a city attorney and the city officials he or she represents in litigation may be privileged (depending on with whom else they are shared, etc.), communications with a third person whom the attorney does not represent in this action are not privileged,” said Ritter in his letter. “Settlement offers from an opposing party in litigation falls into this category,” he added. Jefcoats said the prolonged efforts to gain access to the documents, as well as having to take the extraordinary step of getting the Attorney General’s office involved have been disappointing but educational. “I’ve been a reporter for more than 25 years and have never had to pursue an Open Records request this far,” said Jefcoats. “I believe the newspaper is working for the benefit of Forest Park residents, who deserve to know how this costly decision was reached, so I welcome the challenge. My desire in this, and every day, is to seek the truth and report it.” Residents benefits from open records But the Forest Park situation is a rare instance where Clayton News Daily has had to push a little harder to gain access to public records. More often, the newspaper — in its dealings with county government — has found officials to be willing to comply with requests. The result has been a deeper understanding for residents about how decisions their elected leaders have made affects their daily lives. The newspaper routinely asks County Commission Clerk Shelby Haywood for copies of resolutions and supporting documents from commission meet-

FRIDAY, NOVEMBER 29, 2013 r 5A r'SPN 1BHF " citizens. “We work with governments to make sure citizens are getting what they ask for,” said Lauren Kane, communications director for the Attorney General’s office. However, Kane said the attorney general is not working on behalf of either the citizen or government. “We are here to make sure the law is being followed,” Kane said. The Attorney General’s office will act as a third party, contacting the necessary government offices and informing them of the law. “Most of the time governments don’t realize they’re in violation of the law,” Kane said. She said the Attorney General’s office handled more than 300 complaints last year using the mediation program.

“We feel like it works pretty well,” Kane said. However, if citizens wish to, they can file a lawsuit at any time in superior court. There are also times the Attorney General’s office will, itself, pursue a judicial remedy. “If there’s an egregious offense or a government is refusing to admit wrongdoing, we will take legal action to enforce the law,” Kane said. Ultimately, “laws should be enforced and people should have access to their government,” Kane said. Citizens are also invited to contact their local newspaper when seeking government records. “We don’t have any more access than citizens, but we’re more familiar with the process,” Zachary said. To contact the Clayton News Daily, call 770-478-5753.

Battles ings. Getting a response is almost always a matter of waiting minutes rather than the three days Haywood has under the law to comply with the request. Sometimes the information gleaned from those supporting documents has helped illustrate background or complete a picture. However, other times the county legislative requests included in the packets have revealed information that explained everything in a way that commissioners may not have addressed in open session. Examples of information obtained through requesting those documents include MARTA’s plans to use $574,163 in federal money it received on the county’s behalf on other projects in metro Atlanta, a need to replace a county bridge that had been deemed unsafe for traffic, plans to set a new speed limit near a high school and plans to raise the speed limit on I-285. “The more open elected officials are, the more buy-in they receive from citizens,” Clayton News Daily Editor Jim Zachary said. “People with nothing to hide, simply shouldn’t hide.” But the county’s compliance with more formal, written open records requests has also helped the News Daily cover several stories this year. Documents obtained through these requests allowed the newspaper to report on a history of disciplinary problems with Shada Starr, when the commission narrowly voted to circumvent its Civil Service Board and reinstate her to a position in the county’s Senior Services department. Starr had been fired in July because of “chronic absenteeism.” Although the negotiations between Starr and the county cannot be released due to a confidentiality clause in their agreement, the newspaper used an open records request for her pay stubs to discover that the county paid her $2,499.94 — after taxes — upon her re-instatement in late September. Documents obtained through open records requests last month also allowed the newspaper to be prepared for the naming of finalists for the county fire chief position. The newspaper had the applications of every candidate in hand before the finalists were announced and used information from the applications to immediately give readers a basic idea of who the finalists were.

The newspaper also obtained a copy of the personnel file for the lone in-house finalist, thenassistant Chief Landry Merkison, to delve deeper into his history when more in-depth profiles were done on each finalist. That gave the News Daily access to Merkison’s disciplinary and promotional history. It also revealed new information about his background in the county through his original application for a firefighting position in 1996, and commendations and punishments he received over the years. Merkison was appointed chief by commissioners Nov. 5. “Information is power and citizens should retain the power over their own government. That is the American way and citizens should have full access to documents held by local government,” Zachary said. In general, the News Daily has found city governments to be easy to work with on open records issues despite the ongoing battle with Forest Park. The newspaper has routinely been able to request and receive documents from the city of Jonesboro without any hassles. In the case of a Lee Street Park renovations survey conducted over the summer, Mayor Joy Day mailed a copy of the results to the newspaper before announcing they were ready. Day has often told reporters from the newspaper they can have copies of records if they come by City Hall. The newspaper has often also had more good luck than bad luck with open records requests in Morrow. Earlier this year, reporters were able to easily gain access, through an Open Records Request, to a tally sheet which revealed the Morrow City Council hired City Attorney Greg Hecht despite scoring him the lowest among four competing law firms. Morrow City Clerk Evyonne Browning also attaches supporting documents to meeting agenda packets she sends to the newspaper and posts on the city’s website. It’s an agenda model also used by the Clayton County Board of Education. But a situation involving an open records request to the city in May revealed there are sometimes gray areas in open records laws that leave the door open for debate. A request had been submitted for a background check on a

city employee, after a copy of that person’s personnel file revealed officials had redacted the answer on his job application to a question about prior felony convictions. Browning told the newspaper she could not release his background check report because doing so would infringe upon his “constitutional right to privacy.” That led to a case of dueling attorney opinions between David Hudson and Robert Quinn, an attorney for the city. “Only outside confidential evaluations submitted to a government agency that are in a personnel record are exempt from disclosure,” said Hudson. “But there is nothing in the law that exempts a general ‘background check’ that an agency may have obtained in connection with a hiring decision.” Quinn countered by arguing, “O.C.G.A. §35-334 provides that disclosure of GCIC (Georgia Crime Information Center) criminal background information to private individuals or businesses is authorized only if at the time of the request the requesting party provides the fingerprints of the person whose records are requested or provide a signed consent of the person whose records are requested on a form prescribed by the center which shall include such person’s full name, address, Social Security number and date of birth. “The violation of this law is a misdemeanor,” he added. Open Meetings issues But, whereas open records requests have usually been responded to without frustration, reporters have not always been so lucky with open meetings issues. In some ways, elected officials — particularly the county commissioners — have moved toward being more open with their meetings. After commission Chairman Jeff Turner took office in January, the commission began putting detailed summaries of contracts, budget amendments, ordinances and resolutions on their meeting agendas. Last week, Commissioner Sonna Singleton asked for similar detailed summaries of Human Resources Department requests on the agendas as well during a pre-meeting work session, and her colleagues quickly consented to do so. But issues remain about executive sessions. Although they are not as common at the city council level, lengthy executive sessions are a regular

occurrence at county commission and board of education meetings. Officials can go into executive sessions for personnel, litigation and land acquisition matters. Commissioners did take one step towards transparency in October when they chose to interview the fire chief finalists in an open forum during a meeting. It was a rare step for a body that has traditionally interviewed finalists for department head positions in executive session. However, when the time came to discuss the finalists after the interviews, commissioners retreated to executive session to debate who should be hired. “Even if the law says they can go behind closed doors, why do elected officials do it if they are not ashamed and have nothing to conceal from the public?” Zachary asked. While the law does give elected officials a small scope of reasons to go into executive session, open meetings experts such as Hudson and Ritter have in the past said they are not required to do so. That’s an argument former Clayton County Housing Authority attorney George Glaze tried to make in May when the authority board wanted to discuss the contract to have Wade Starr as its permanent executive director. Glaze and Starr argued over whether the board should discuss the contract in open or closed session. “Everything we’re talking about now, we can talk about in executive session,” Starr told the board. Glaze responded, “But you don’t have to.” The board sided with Starr and decided to discuss the issue in executive session. It then voted to fire Glaze and his son, Kirby Glaze, after it came out of executive session. But some elected officials have argued the law won’t let them discuss personnel matters in public. Former News Daily education reporter Rachel Shirey ran into a case earlier this year where she had a school system leader make that argument. Shirey, who is now the government reporter at the Henry Daily Herald, reported in February that school board Chairwoman Pam Adamson told residents during a board meeting that the body was required by law to keep personnel discussions restricted to executive sessions. “We just do what we have to do in executive session,” said Adamson at

the time. “It’s hard to rush people along, and frankly we don’t like to be rushed along if we’re discussing in executive session.” Shirey said the school board’s executive sessions were frustrating because board members began every meeting with executive sessions that could sometimes last several hours. Some teachers and residents who attended the meetings would show signs of discomfort, such as sighing out loud while waiting for the board to come back into the open meeting, she said. Some people would leave the meeting when executive session began so they could go get dinner because they felt they would have more than enough time to eat while school board members stayed behind closed doors, Shirey added. When they came back into the public arena, their explanations of why they spent so much time behind closed doors weren’t forthcoming. “When they would come back, they would basically say, if I remember this correctly, ‘We discussed personnel matters (and) let’s vote upon what we have discussed,’” said Shirey. “And that was that. They didn’t give you any kind of details. They wouldn’t give you anything, which I’ve actually discovered is illegal. “Stefan Ritter said when you come back from executive session, you have to give enough information for the public to be able to identify what the issue is,” she added. But beyond violating Georgia’s Open Meetings Law, Shirey said the school board’s executive sessions made her look at board members with suspicious eyes. “For me, having those lengthy sessions was unnecessary,” said Shirey. “When you have those meetings for that long, it almost made me suspect that they were hearing more behind closed doors than they should have. Maybe they were hearing evidence, which they’re not supposed to hear, or maybe they were arguing.” It didn’t help the board’s standing in a community already unnerved by the school system’s history of accreditation problems, either. “I don’t think discussing certain items behind closed doors for that length of time did the education arena any good,” said Shirey. “It made people wary. It made people distrust them.”

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Executive session: A right or an abused privilege? BY RACHEL SHIREY

rshirey@henryherald.com

It is no secret that the topic of closed meetings has resulted in contention between elected officials and advocates of open meetings for years. Some elected officials tend to debate that executive sessions are necessary in some cases, while others argue the information discussed behind closed doors is still the public’s business. But when does a privilege become abused? “Georgia executive session is a little better than what it used to be, but it’s not that much better,” said Assistant State Attorney Stefan Ritter in an open meetings seminar hosted by the Georgia Press Association. In February, the Clayton County Board of Education Chairwoman Pam Adamson told citizens that board members were “restricted” and had to discuss personnel issues in executive session. “State law says you have to discuss personnel issues in executive session,” Adamson said. “You cannot do it out here in front of an audience.” However, according to Georgia’s open meetings and open records law, that’s simply not true. “A public agency, such as the Clayton County Board of Education, is not required to meet in a closed session,” said David Hudson, an attorney considered an expert on the Open Meetings Act. “The specific text of the open meetings law at O.C.G.A. 50-14-3(b) states that ‘executive session shall be permitted for … ’ It does not say that executive sessions are required or manda-

In neighboring Henry County, the Board of Commissioners met behind closed doors last week to discuss personnel issues, but upon returning did not release any basic information, as required by law, to the public. It was later determined that the issue circled around the Henry County Fire Department. (Staff Photo: Rachel Shirey)

tory.” However, Adamson said she believed discussing topics such as student issues, employee issues or real estate acquisitions in public could have a waterfall effect that would hinder the end result. For instance, discussing student or employee issues publicly could pose privacy issues, and discussing future real estate could raise prices, she suggested. Hudson went on to explain “an executive session can be convened only by majority vote of the Board or Council members in a public meeting. Thus if there is not a majority vote to meet in a closed session,

the meeting must place take in the open.” On the flip side, nothing discussed behind closed doors is binding until the issue is disclosed and voted upon in public. Government bodies are allowed to vote to close a meeting to discuss a limited range of topics, the most common of which are pending litigation, personnel issues and real estate acquisitions, but they come with strict guidelines that Ritter said are often overlooked. For example, he said some government entities treat “personnel matters” as an all-inclusive cloak which results in a board erring on the side of caution instead of on the side

of openness. “Personnel meetings in executive session are limited to two things — discussions among the board, commission, whoever it is, discussions among those members on a specific personnel issue, or to interview candidates for an executive head,” Ritter said, adding that the meetings they have with their employees in executive session are not legal. He also said government bodies are not entitled to close a meeting to hear evidence on a situation — receiving evidence in a closed meeting is illegal and is therefore public. “First they have to receive the complaint —

that’s open,” Ritter explained. “Then they have to receive information regarding the complaint — that’s open — then they can meet in closed session, but they have to vote on it in an open meeting.” Georgia’s open meetings and open records laws also permit government agencies to enter executive session to discuss the acquisition or disposal of real estate and to discuss settlements of lawsuits or claims against an agency. But again, the board is subject to strict guidelines. Board members are only permitted to meet privately as a quorum with their attorney pres-

ent to discuss pending litigation, but there must be a formal intent to sue, or an ante litem notice, filed before the board can proceed. “You have to have a tangible threat of litigation,” Ritter said adding if not, they have no business meeting in executive session, and the ante litem notice is an open record. “If they haven’t received a notice, then it’s not a tangible threat,” he said “no exceptions.” The elected body cannot go into executive session just because it thinks it might get sued. If a government agency has a topic of discussion that meets the criteria, then it is permitted to meet behind closed doors. However, when the board members return, Ritter said they are not permitted to cloak all information from the public. He said board members are required to state what they’re voting on following executive session, and when taking a vote, the board must give enough information for the public to identify the topic — just not the discussion. It is not enough for a board to simply say they will vote on the personnel issue discussed in executive session. And when a personnel topic discussed in executive session has officially closed or been resolved, the personnel records become public, Ritter said. If members of the public are able to produce evidence that any government agency violates the law on closed meetings, they are encouraged to contact Ritter at the Attorney General’s office at 404-656-7298.

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Government transparency begins with citizen awareness BY RACHEL SHIREY

rshirey@henryherald.com

Information is power and it begins with awareness. All government bodies, including those of Clayton County, are required by law to inform citizens of their open public meetings when the information discussed affects the daily lives of citizens. They are also required to document their discussions through agendas and minutes. Public Notice According to the Georgia Press Association, â&#x20AC;&#x153;Information about government activities must be accessible in order for the electorate to make well-informed decisions. Public notices in newspapers provide this sort of accessibility to citizens who want to know more about government activities.â&#x20AC;? And Georgia state law takes their side. A handbook on the Georgia Sunshine Laws published by Attorney David Hudson says the law mandates any regular committee meetings must be posted at least one week in advance and in a conspicuous place at the regular meeting place, whether itâ&#x20AC;&#x2122;s city hall, a county administrative building or board of education building. The notice must also be on the agencyâ&#x20AC;&#x2122;s website. This way, citizens can be informed and present at an agencyâ&#x20AC;&#x2122;s open public meeting whether itâ&#x20AC;&#x2122;s local government or any of its smaller committees, board of education, library or hospital board meetings. â&#x20AC;&#x153;If they donâ&#x20AC;&#x2122;t have notice, they donâ&#x20AC;&#x2122;t have an agenda, thatâ&#x20AC;&#x2122;s illegal,â&#x20AC;? said Assistant State Attorney Stefan Ritter in an open meetings seminar hosted by the Georgia Press Association. When all else fails, government bodies are also

All documents pertaining to a government agency are available to the public. In some cases, the documents will need to be requested and in others, they are already made available on the agencyâ&#x20AC;&#x2122;s website. (Staff Photo: Rachel Shirey)

required to inform the legal organ newspaper, or the Clayton News Daily. Public notice is required to be given to the News Daily at least 24 hours in advance for all special called meetings. In the instance of an emergency meeting that would give less than 24 hours public notice, the government agency must contact the legal organ by phone, fax or email. If this were to occur, the Clayton News Daily would do its best to get the information out to citizens, whether itâ&#x20AC;&#x2122;s by posting it on the website and social media pages or publishing it in the print edition. Agendas Once a citizen has been properly, and legally, informed that a meeting will occur, they should be able to locate an agenda that lists out that meetingâ&#x20AC;&#x2122;s topics of discussion. Ritter said the agenda is not required more than two weeks before the meeting, and the agenda has to be published in sufficient time to let the public know what is going to be covered in that meeting.

Citizens have access to the county agenda and the cities of College Park, Forest Park, Lovejoy, Morrow and Riverdale agendas on their respective websites. The agendas for Jonesboro and Lake City are available upon request at city halls. Lake City has some past agendas on its website, but no new agendas have been added since July 8. The city did, however, launch a new website after their previous one had been down for several months. Jonesboro is also working on a new website which is expected to include meeting agendas. â&#x20AC;&#x153;My experience is the county is the best at putting out agendas,â&#x20AC;? Clayton News Daily Government Reporter Curt Yeomans said. â&#x20AC;&#x153;They set their agendas a week in advance and release them to the public the Friday before each meeting.â&#x20AC;? Citizens can also request to be added to the the Clayton County Board of Education listserv that email blasts its agenda prior to the meeting, but the agency also posts its agenda on the website several days in advance.

Clayton Countyâ&#x20AC;&#x2122;s municipalities will also make any supporting documents to an agenda item available to citizens if requested. In the case of the Board of Education, supporting documents are automatically made available when the agenda is on their website. However, the agenda is not set in stone until approved by the board at the beginning of the meeting. Government agencies are also permitted to amend their agendas if it â&#x20AC;&#x153;becomes necessaryâ&#x20AC;? during a meeting if there is a unanimous vote, but it is not recommended. Ritter said if the agenda has been manipulated in a way to cause surprise on the people, thatâ&#x20AC;&#x2122;s an issue. â&#x20AC;&#x153;Surprise, they did not expect it and they cannot defer it â&#x20AC;&#x201D; if they meet that two-part test, then they are legally allowed to discuss it that night. Otherwise they should defer the topic,â&#x20AC;? Ritter said, adding that it is generally abused by most government agencies. Yeomans said, in his experience, even though the county is diligent in pushing its agenda out in a

timely manner, county officials tend to amend their agenda at the last minute more than any other agency in Clayton County. â&#x20AC;&#x153;I think more often than not, they are probably topics that can be postponed,â&#x20AC;? Yeomans said. â&#x20AC;&#x153;Sometimes it is like somebody sent them a late use of facilities request and if the county doesnâ&#x20AC;&#x2122;t approve it at that meeting, then they wonâ&#x20AC;&#x2122;t have the ability to use the facility, but a lot of times they could just postpone it.â&#x20AC;? In fact, earlier this year, Clayton County District Attorney Tracy Graham Lawson asked a Superior Court judge to throw out several decisions made by the countyâ&#x20AC;&#x2122;s Board of Commissioners in late 2012 because of possible violations of the stateâ&#x20AC;&#x2122;s sunshine law. According to a Clayton News Daily report, Lawson filed a motion in court to force the county commission to adhere to the Georgiaâ&#x20AC;&#x2122;s Open Meetings Act. In the motion, she asks the judge for â&#x20AC;&#x153;a declaration that certain actions and/or resolutions of the Clayton County Board of Commissioners are not binding.â&#x20AC;? The motion outlined 18 decisions made by the commission from October until December 2012 which were not included on meeting agendas released to the public beforehand. The board eventually agreed to properly redo the appointments challenged by the District Attorney. Minutes When a meeting is in progress, it is also the responsibility of each committee to document the minutes, or the basic outcome of every agenda item including any closed meetings. According to Hudsonâ&#x20AC;&#x2122;s Georgia Sunshine Laws Handbook, â&#x20AC;&#x153;The minutes of a regular meeting become public when ap-

proved at the next meeting. A summary of a regular meeting must be available to the public after two business days.â&#x20AC;? However, the minutes taken during an executive session are not made public unless the committee consents to its release or is ordered to by a judge. Government agencies in Clayton County are also diligent about making their minutes and minute summaries easily available online where citizens donâ&#x20AC;&#x2122;t have to request the information. But in the few instances where the minutes are not available online, citizens can request them from the city clerk. Citizens can also request the minutes from all Board of Education meetings from the superintendentâ&#x20AC;&#x2122;s secretary. The same laws that govern Clayton Countyâ&#x20AC;&#x2122;s municipalities apply to any â&#x20AC;&#x153;agency,â&#x20AC;? which is defined in state law as every state department, agency, board, bureau, office, commission, public corporation and authority; every county, municipal corporation, school district or other political subdivision of this state; every city, county, regional, or other authority established pursuant to the laws of this state; and any nonprofit organization to which there is a direct allocation of tax funds made by the governing body of any agency. â&#x20AC;&#x153;By giving adequate public notice, sticking to a published agenda and keeping complete and accurate meeting minutes, elected officials can improve local government transparency and better serve the citizens of our county,â&#x20AC;? said Jim Zachary, editor of the Clayton News Daily and the Henry Daily Herald. â&#x20AC;&#x153;Citizens have every right to expect these three basic protections from local officials.â&#x20AC;?

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Police documents mostly open to public BY KELSEY COCHRAN

gia Department of Law, Georgia Press Association, Georgia Public Georgia residents Safety Training Center, have myriad resources the Georgia State Patrol, available to them when Georgia Sheriffs’ Assoit comes to obtaining ciation and the Prosecutimportant information ing Attorneys Council of related to the criminal Georgia and encourages process. members of the law enThe Georgia First forcement community to Amendment Foundation, acquaint themselves with in cooperation with the the Georgia Open ReGeorgia Bureau of Inves- cords Act, and to use the tigation, has published a booklet for guidance. booklet called “Georgia For example, the pubLaw Enforcement and lication gives abridged the Open Records Act,” bullet points with attribuwhich offers law enforce- tion to each specific code ment personnel a comsection that regulates prehensive guide to open things like the release of records and best practices accident reports, incident to ensure transparency reports and matters inbetween policing agenvolving juvenile offendcies and the general pub- ers and victims. lic, as well as the news Submitting an open remedia. cords act is easy enough The 38-page manual and requires the same has been approved by oversight in law enforceorganizations like the ment agencies as any Georgia Association of other government entity Chiefs of Police, Geor— citizens can just conkcochran@henryherald.com

tact the records custodian at the agency. Usually, particularly in smaller departments, a telephone call or informal email will suffice. Some agencies may ask the person making the request to fill out a form. Members of the news media and the general public alike can also use the guide as a quick-reference tool to understand their rights under the Georgia Open Records Act. For the most part, the news media has the same rights to public documents as the general public, but there are a few exemptions to that rule. For example, while citizens have restricted access to motor vehicle accident reports, the members of the media may obtain copies of accident reports for the purpose of news gathering. Otherwise, a records

custodian may ask the individual making the request to complete a “statement of need” which outlines the purpose of the request. Meanwhile, all initial incident reports are public record. There has been some confusion in the past over whether reports involving the particularly vulnerable — juvenile victims, victims of sex crimes, or victims of domestic abuse when no arrest was made — should be released to the public, but no exemption has been added to the state’s Open Records Act to follow that model. There is, however, often information contained within initial incident reports that may be redacted by the agency providing the documents. Personal information, including Social Security numbers, day and month of birth and an indi-

vidual’s mother’s maiden name are all examples of information that can be kept private in the interest of protecting a person’s identity. Confidential records concerning reports of child abuse, grand jury testimony and classified inmate files are some common documents law enforcement officials handle, but are mandatory exemptions from public disclosure. Police Sgt. Joey Smith in neighboring Henry County and his colleagues in the department’s Internal Affairs division handle hundreds of open records requests each year. As the department’s public information officer, Smith is involved in day-to-day media relations and often is responsible for determining whether a document is public or private. The number of reports

fielded by the department’s Records Division, however, numbers in the thousands, Smith said. “Some challenges we face are providing information that may be sensitive to a criminal case or personal information that witnesses or victims would not wish the public to view,” he said. “We strive to be as open as possible to accommodate the public with any information requested, which meets the requirements of the Act.” The Georgia First Amendment Foundation publishes its materials on the organization’s website at www.gfaf.org. In addition to the guide for law enforcement officers, booklets that prove useful for citizens and people interested in how the law affects the Georgia education system are available in PDF format on the website.

Phone: (770) 477-3587 Fax: (770) 477-3335

Stacey Merritt Phone: 770-473-3850 Fax: 770-473-3858

Who exactly are the records custodians? BY CURT YEOMANS

cyeomans@news-daily.com

The Cities: College Park Melissa Brooks mbrooks@collegeparkga.com 404-669-3754 3667 Main St. P.O. Box 87137 College Park, GA 30337 Forest Park Mike Blandenburg 404-366-4720 745 Forest Pkwy. Forest Park, GA 30297 Jonesboro Janice Truhan jtruhan@jonesboroga.com

770-478-37800 124 North Ave. Jonesboro, GA 30236 Lake City Eric Beckman beckman_e@lakecityga. net 404-366-8037 5455 Jonesboro Road Lake City, GA 30260 Lovejoy Marie Burnham m_burnham@cityoflovejoy.com 770-471-2304 2296 Talmadge Road P.O. Box 220 Lovejoy, GA 30250 Morrow Evyonne Browning

ebrowning@cityofmorrow.com 678-902-0928 1500 Morrow Road Morrow, GA 30260 Riverdale Stephanie Thomas recordsrequest@riverdalega.gov 770-909-5390 7200 Church St. Riverdale, GA 30274 * College Park, Lake City, Morrow and Riverdale have open records request forms available on their websites. The internet addresses are collegeparkga.com, lakecityga. net, cityofmorrow.com and riverdalega.gov

In Education: Clayton County Public Schools Charles White charles.white@clayton. k12.ga.us Phone: 770-473-2700, ext. 700133 1058 Fifth Ave. Jonesboro, GA 30236 The Key Clayton County Government Contacts: Board of Commissioners Shelby Haywood, Clerk Phone: 770-477-4550 Fax: 678-479-5010 Central Services Hannah Parker

Finance Department Patricia White Office: 770-477-3222 Fax: 770-477-3235 Human Resources Noi Souphanthavong Office: 770-477-3241 Fax: 770-473-5727 Information Technology Director’s Office Phone: 770-477-3527 Fax: 770-477-3773 Internal Audit Monique Scott Phone: 770-603-4173 Fax: 770-473-5763

Staff Attorney’s Office Evelyn Rabold Phone: 770-477-3207 Fax: 770-473-5969 * Each Clayton County government department and agency has its own records custodian. The county also has an open government page on its website, claytoncountyga. gov.open-government. aspx, where residents can find open records contact number for each department and agency, as well as open records request forms.

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FRIDAY, NOVEMBER 29, 2013 r 9A

THE ORGANIZATIONAL CHART FOR CLAYTON COUNTY GOVERNMENT

(Special Photo)

THE ORGANIZATIONAL CHART FOR CLAYTON COUNTY PUBLIC SCHOOLS

(Special Photo)

10A r FRIDAY, NOVEMBER 29, 2013

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GPA Legal Hotline gives out expert advice BY DAVID HUDSON, GENERAL COUNSEL GEORGIA PRESS ASSOCIATION The GPA Legal Hotline provides Georgia Press Association-member newspapers with expert legal advice and answers to questions about legal issues in most areas of law affecting newspapers. David Hudson is GPA’s general counsel and a partner in the Augusta law firm of Hull Barrett. Kathy Bradford, Advance, Vidalia: At the Montgomery County Board of Education meetings, a blanket reason is given each time the board goes into closed session. The chairman of the board reads verbatim: “To discuss or deliberate upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or period evaluation or rating of a public officer or employee (OCGA-50- 143(6)) and; To consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the school district or an officer or employee or in which the officer or employee may be directly involved; (O.C.G.A. 5014-2).” He never gives a concise reason for closed session, so the school superintendent usually looks at me and mouths why there needs to be such a session. However, last night, the chairman simply asked for a motion to go into closed session without reading the usual blanket statement or giving any reason before he asked for a motion and a second. Two of the board members did as asked. When no reason was given, I asked for a specific purpose and was met with hostility by the chairman. Those actions aside, can a board chairman ask for a closed session before announcing what the session is for, and if so, can the board members be accountable, too, for any questionable actions that may occur behind closed doors? David Hudson, GPA General Counsel: O.C.G.A. 50-14-4 provides that when any meeting is closed to the public, “the specific reason for such closure shall be entered upon the official minutes.” It also requires a majority vote of a quorum to meet in a closed session, and the minutes must reflect those who voted for closure. In my view, merely reciting at each meeting a standard formula that covers all of the reasons why a meeting could be closed does not comply with the requirements of this statute. Whoever is making the motion to close knows why he or she is doing so, and the specific reason/ category for the closed meeting should be stated, voted on and entered in the minutes. In the latter scenario you describe where there was no reason stated, this was clearly in violation of 50-14-4. Something else you need to keep in mind is that 50-14-4(b) (1) requires the person leading the closed session to file with the minutes an affidavit swearing that the closed meeting was devoted to matters within exceptions provided by law “and identifying the specific relevant exception.” This is another requirement that the specific reason be given. Jessica Loeding, The Daily Tribune News, Cartersville: A local city

council held a closed session for personnel matters. While there is some doubt about the topic discussed, the question becomes: Is a city clerk required to keep minutes in closed sessions? One council member has asked in the past that the closed sessions include only council members, and the session last night did not include anyone keeping minutes. Is the city required to do so? Would any action taken be affected if they did not? Hudson: The amendments to the Open Meetings Act require that minutes be kept of closed-session meetings. O.C.G.A. 50-14-1(e). However these minutes are not public unless the agency consents or a court orders disclosure. Kathy Jefcoats, Clayton News Daily, Jonesboro: I have petitioned the city of Forest Park for documents, etc., pertaining to a settlement made between the city and a former councilwoman. She appeared at a recent meeting to announce she’d settled with the city for $35,000 and federal court documents back that up. However, the mayor is alleging that no one authorized the settlement. I made an open records request. I am expecting my answer to be attorneyclient privilege. Can they do that? How do I proceed if my request is denied? Hudson: There have been two Georgia cases (one federal and one Superior Court) that have held that settlement documents must be provided under the Open Records Act by a local government. The settlement documents are not protected by any attorney-client privilege as they are between the city and the opposing party. Documents protected by the attorney-client privilege are only those that are held by one side of a case and not disclosed to anyone else. Make your request, and it should be granted. Alan Mauldin, The Moultrie Observer: After repeated verbal requests to a law enforcement agency about their reports not including the names of juvenile victims, I’m going to make a public-records request for a specific report and request in writing that all future reports include this information. It is my understanding that law enforcement agencies cannot withhold the names of juveniles who are victims of crimes. I would like to get a statement on the topic that I can include in that request. Hudson: There is no provision of Georgia law that exempts the names of juveniles — whether suspected offenders or victims — from initial incident or arrest reports that are required to be made public upon request. In addition to no exemption being stated in the law that allows the withholding of those names, law enforcement agencies should refer to the publication “A Law Enforcement Officers Guide to Open Records in Georgia.” This is a product of the Georgia Department of Law, the Georgia Association of Chiefs of Police, the GBI and the Georgia Sheriffs’ Association. The requirement of disclosure of juvenile victim names is addressed at page 19 and states that the names should be disclosed. A copy of the booklet is available on the GFAF website, www.gfaf. org. Elizabeth Billips, The True Citizen, Waynes-

boro: The Waynesboro Police Department has recently gone to a new format for its incident reports. Officers told me (off the record) it is to keep bad stories out of the media. Virtually no information is provided. Are there certain items that must be listed in an incident report or is it simply at the department’s discretion? Hudson: My guess is that these “sanitized” reports are not the only incident reports made by the police. And even if they call the other documents a supplement or addition to the initial incident report, these are public records. The first step would be to find out what else is completed by the police department — if they are like every other police department, there is more information in something else that is initially completed and put in their records. And such documents or computer entries are public. Mitch Sneed, Douglas County Sentinel, Douglasville: Recently as part of another investigation, we made a request for the emails of a county commissioner. In those emails, we found more than 20 emailed requests for this commissioner to give approval by email of purchase orders. When I discovered this I inquired and was told that on matters of more than $25,000 they require the “approval” of at least three commissioners and that approval was given via email response. Three would be a quorum. I have read the open meetings handbook and saw this passage: “Email communication among members of a board of commissioners does not create a meeting subject to the open meetings law. However, emails are subject to disclosure under the open records law. The exclusions above do not apply if it can be shown that the primary purpose of the gathering or gatherings is to evade or avoid the requirements for conducting a meeting while discussing or conducting official business.” In your opinion, do these emails constitute official business? Also, is the practice of three commissioners giving approval via email essentially a vote that should take place in an open meeting? Does this violate the open meetings law and what should be our next step? Hudson: The county commission doing business on the basis of emails is fraught with illegalities and peril for all involved. The county cannot take binding legal action without a vote in a properly noticed and open-tothe-public meeting. This might be different if, under the county ordinances, purchasing approval at a certain dollar amount and below has been vested in the chairman or county manager or some other employee. But except for an action of that nature, anyone doing business with the county is taking a risk that proper and binding contractual authority is missing. In fact there is a body of law that holds that a county can only be bound by a proper vote that is recorded in the minutes of the county commission. For most violations of the open meetings law, an action can be filed to set aside conduct of the county in violation of the act, but the action must be filed within 90 days of when the illegal conduct was discovered. As for steps that the newspaper can take, you can certainly expose the

matter in news articles and editorialize about the violations of the act. If the county, for some reason, does not change its practices, then you can set forth the circumstances and present them to the attorney general’s office for its review and advice to the county commission. The last alternative available is that the newspaper or any citizen can file suit for the violations and recover statutory penalties and attorney’s fees. Larry L. Stanford, The Thomaston Times: Thomaston and Upson County have been arguing about the Local Option Sales Tax (LOST) and service delivery for more than a year now. Last year, Thomaston sued Upson County for violation of the Open Records Act when Upson County failed to provide all the tax data the city requested. The county finally provided the information. The LOST negotiations went through all the stages — negotiation, mediation, and were finally sent to Senior Judge Stephen Boswell for a decision. But the city and county attorneys got together and told Boswell they felt they could come up with an agreement, so they have been working since last April and finally have a draft proposal ready. Two questions: 1. The Upson County Board of Commissioners went into closed session Tuesday night, and again at a called meeting Friday morning, to discuss the draft proposal, claiming potential litigation. Would Boswell making the final decision if the proposal isn’t agreed upon be considered the potential litigation? 2. The board said Friday that it planned on meeting with the city council Tuesday before the council’s regular meeting. Can two governing bodies meeting jointly claim potential litigation and close the meeting? Hudson: The county commissioners would be entitled to discuss aspects of the litigation, even under the circumstances you describe, in a closed session. This is premised on, of course, that there was a properly noticed open meeting and a vote taken by the majority to meet in the closed session. In regard to the proposed joint meeting, there would be no exception that allows that to take place in closed session. The litigation exception that allows closed meetings is specifically to allow confidential consultations with the agency’s attorney about pending or potential litigation. This is to preserve the attorneyclient privilege for the agency. But once outsiders are admitted to the meeting, in this instance, the city council, there is no longer privileged attorneyclient communication taking place, and the legal justification to allow a closed meeting would no longer exist. Dub Joiner, The News Observer, Blue Ridge: What is the code section in the law regarding photographers at crime or accidents scenes? We have had a couple incidents lately when law enforcement and fire department personnel have said we could not take pictures at an accident and a suicide scene, even from a distance. Hudson: There is no statute that establishes the right of journalists to be present at accident or crime scenes. It is a principle of First Amendment law that is established by court decisions across the country. They can be

summed up as follows: Anywhere that a member of the public has a right to be, journalists can be there also. This means that officials can cordon off ingress and egress for emergency vehicles, and can cordon off crime scenes to preserve evidence. However, from places outside the cordoned areas, journalists are entitled to conduct interviews, and photographers are entitled to take pictures. Typical places where the public and journalists have the right to be are public sidewalks, publicly owned rights of way to streets and highways, and private property that is not posted or where the owner does not direct the journalists to leave. Jim Healy, Statesboro Herald: Are the bids submitted to the city of Statesboro by insurance carriers to provide insurance coverage subject to open records law? Are the grades given to each company and the accompanying paperwork subject to open records law? Hudson: O.C.G.A. 5018- 72(a)(10) makes bids and cost estimates closed until a contract is awarded or the agency takes a vote regarding the bid or proposal. Kathy Bradford, The Advance, Vidalia: Can a board of education change its regular monthly meeting schedule without notifying the media or public? The Montgomery County Board of Education approved its monthly meetings to be the third Monday of each month at 7 p.m. during Daylight Saving Time, and 6 p.m. Eastern Standard Time. Less than an hour before the latest meeting was scheduled to start, I received a phone call from a reporter at another newspaper that covers the meeting, who told me she happened to see on the BOE’s webpage that the meeting had been changed to the next week. None of the local media outlets (two newspapers and one radio station) were notified by the superintendent or a designee. Hudson: A meeting place and time can be changed. For the media to receive notice, some steps have to be taken in advance. For newspapers published less than four times weekly, O.C.G.A 50-14-1(d) provides that notice has to be given, in addition to posting at the meeting place, to media only where there has been a “written request from any local broadcast or print media outlet whose place of business and physical facilities are located in the county.” If you have not done so, you should give written notice now to every local government entity, county, city, authorities and school boards that if a meeting is held at other than the regular time and place, you request notice be given to the newspaper as required in 50-14-1(d) by telephone call, or by fax or email. You would, of course, provide the fax number and the email address. Otis Brumby III, Marietta Daily Journal: I would expect to see a confidentiality notice at the bottom of one of your emails. However, when I got an email from the mayor of Kennesaw this morning, I was surprised to see a confidentiality notice at the end. It is from his city email address. Is this unusual? I’m assuming it would not be applicable if we filed an open records request of emails on a particular topic that was not an exception under

Georgia law. Hudson: The disclaimer by the mayor has no effect on whether an email is an open record and whether it may be disseminated. I guess he is free to put the language at the bottom of the email — he probably saw it on an email to him at some point — but it cannot trump the Open Records Act, and there is no legal “privilege” that applies to communications to and from a public official such as an email. Eric Curl, Savannah Morning News: The city of Savannah argues that the land purchases and subsequent contracts made in 2006 and 2007 for Westside development were legally approved in executive session. They were never voted on in regular session, however. I was under the impression that property acquisitions could be negotiated in executive session, but eventually had to be approved in open session. Since those purchases, the city has adopted a new policy in which the contracts are approved during the regular meeting. Hudson: Before the amendment of the Open Meetings Act in 2012, all that could be done in closed session regarding real estate was to “discuss” real estate acquisitions. All votes had to be in a public meeting. 50-14-3(4). The new law at 50-143(b) (1) allows discussions and nonbinding votes in a closed meeting. The transaction is not binding until voted on in an open meeting. Mark Berryman, The Elberton Star: Our local hospital authority, a selfperpetuating board with a couple of exceptions, went behind closed doors to “discuss a prospective member’s credentials” before voting to accept the candidate as a member of the board. In our view, this does not fall within the scope of the exceptions for a closeddoor session (litigation, personnel, real estate and, of course, competitive advantage). Also, the hospital has formed an affiliation with an area hospital (AnMed) and a representative from that hospital regularly attends the closed-door sessions. Is that permissible? Hudson: O.C.G.A. 50-14- 3(b)(2) provides among other things as follows: “Meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself shall at all times be open to the public as provided in this chapter.” Thus what you describe was an impermissible closed meeting. The entirety of agency discussions regarding the filling of a spot on the board itself should have been open to the public. Now that the horse is out of the barn and they have conducted the illegal closed meeting, you will want to make an open records request for all documents that were received or generated by the board in connection with the filling of the position. As to the participation in closed meetings by a representative of AnMed, it would likely defeat the attorney-client privilege that allows closed meetings for discussion of pending or proposed claims of litigation with agency counsel. For other types of closed meetings, as long as the person did not provide evidence or argument on the issues (other than real estate), the person could remain present.

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Public, media access to courts vital, say judges BY KATHY JEFCOATS

kjefcoats@news-daily.com

Decades before gavel to gavel coverage of the O.J. Simpson murder trial polarized the country, an Ohio osteopath stood under a media spotlight so intense the U.S. Supreme Court labeled it a carnival. The press was allowed unprecedented access to jurors in the murder trial of Dr. Sam Sheppard, accused in the 1954 beating death of his pregnant wife, Marilyn. Reporters were allowed access to evidence and to the Sheppard home, and to tape Sheppard being interviewed by police. The bias against Sheppard was palpable. One of the Ohio newspapers once ran a front page headline that read, “Why isn’t Sam Sheppard in Jail?” The coroner’s inquest into Marilyn Sheppard’s death was televised. The coroner, who was not an attorney, questioned Sheppard for five hours without his lawyer present. The trial judge didn’t sequester jurors or admonish them to stay away from media reports on the case. The judge even famously told one reporter on the first day of the nine-week trial, “He’s guilty as hell. There’s no question about it.” Not many were surprised when Sheppard was convicted. The media exposure was so egregious and influential, the U.S. Supreme Court found in 1964 that Sheppard was denied his constitutional right to a fair trial and cited five specific violations why he should get a second one. The Sheppard case, which has been studied by legal and journalism scholars for more than 50 years, presents a classic example of how the media’s first amendment right to freedom of the press often clashes with a defendant’s sixth amendment right to a fair trial. During the time of the Sheppard coverage, media was limited to radio, television and newspapers. However, methods of disseminating information have increased to include the Internet with its myriad websites, YouTube and blogs. According to a 2008 New York Times article, the number of web-based news organizations is rising as traditional newspapers are shrinking or failing altogether. The article stated that publishing online costs half what it takes to print traditional papers but online advertising is not enough to sustain a newsroom. The question for judges becomes, “What is a media outlet?” Clayton County chief judges Deborah Benefield of Superior Court, John Carbo of State Court and newly-sworn in Wanda Dallas of Magistrate Court, determine who is allowed to electronically record their proceedings. Under Georgia law, all courtroom proceedings are deemed open with limited exceptions. “In the beginning, it was very clear who the media were,” said Carbo. “They

Convicted killer Timothy Boothe is wheeled into Clayton Clayton County Deputy Chief Assistant District Attorney Katie Powers speaking to ju- County Superior Court. (Staff Photo: Kathy Jefcoats) rors during a recent trial in Superior Court. (Staff Photo: Kathy Jefcoats)

were television, radio and newspapers. It’s not so clear now with YouTube and bloggers. At some point, you have to define who the media are.” In general, members of the public share the same access to courts that members of the media do. One difference is who can bring in a video or digital camera in order to preserve the hearings for broadcast to a wider audience. Under the courts’ Uniform Rules, cameras in the courtroom are allowed to be used only by members of the media. Even though Georgia law allows cameras in state and local courtrooms — they are prohibited inside federal courts — a presiding judge can deny the request if he or she finds the media coverage could impact the defendant’s right to a fair trial. In Clayton County, judges traditionally encourage open and accessible courts. “My default is that I approve the requests as they come in and then ask the parties if they object,” said Benefield. From time to time, sovereign citizens come to State Court with traffic tickets. Carbo said the offender typically arrives with an entourage. Once, a supporter pulled out a cellphone to videotape the hearing and Carbo had to stop the taping. The Clayton County Courthouse allows cellphones — nearly all of which have a built-in camera — but no other electronic recording devices. The sovereign supporters wanted to post the proceedings on a YouTube.com channel, he said. Carbo said he has encountered resistance on cameras in the courtrooms from attorneys just once. “The defense attorney said he didn’t believe his client could have a fair trial if the cameras were in here,” he said. “I knew the media had a right to be heard so I invited them into the courtroom for a hearing but they never showed.” Sometimes world events can impact what goes on inside a Clayton County courtroom. Hours before jury selection was to begin in the trial of a Pakistani man accused of strangling his daughter because she wanted out of her arranged marriage, the world learned 9/11 terrorist Osama bin Laden had been killed by American military forces. Trial Judge Albert Collier

denied an Atlanta television news request to have a camera tape the murder trial. Clayton County Executive Assistant District Attorney Jason Green and defense attorney Alan Begner agreed that allowing television cameras in to broadcast the proceedings would sensationalize an already controversial case. “News last night of the death changes things,” said Collier at the time. “I’m going to deny the request.” However, Collier allowed digital photos to be taken by a local newspaper reporter. Benefield said she thinks the law governing who can and cannot record courtroom proceedings is “fine,” with one exception, and Carbo’s experience with the sovereign citizens is a good example. “There is the question of ‘who is the media?’” she said. “What if we start allowing anyone in with a camera and their account of the proceedings conflicts with the official record? I just see huge problems along those lines. The court has to decide who is the media.” Dallas said she has never had an issue with cameras being in the courtroom. However, she had to deal with jurors who disregarded instructions to not research the crime they had been impaneled to hear. “We found out some did over the weekend and they were held in contempt, of course,” said Dallas. “The first trial ended in a mistrial and the second ended in a not guilty verdict. That’s why it’s so important for a defendant to have a fair trial. The state is entitled to a fair trial, too.” Another time, Carbo said civil jurors tried to have lunch at the nursing home at the center of the case they were hearing after being told not to go to the scene or investigate the case on their

own. As far as preserving the integrity of a trial case by entrusting jurors to follow instructions, Benefield said all judges and attorneys can do is have faith in the panel. “There is an immense amount of stuff available at the push of a button,” she said. “It goes back to the honor system. They take an oath. We tell them, ‘these are things you can’t do as prospective jurors.’ The parties are entitled to a fair trial. At the end of the day, all we have is the honor system.” Dallas, who was just appointed to finish out a fouryear term vacated by former Chief Magistrate Daphne Walker, said she is investigating why Clayton County magistrate courtrooms are kept locked during first appearance hearings after being alerted to that fact by Clayton News Daily. Courthouse officials have told Clayton News Daily that access to the first appearance courtrooms is regulated because of safety issues. The law doesn’t allow courtrooms to be locked except in rare cases, including child or sexual assault witnesses giving sensitive testimony. Members of the public are also allowed access to the county courthouse without having to explain their presence to anyone. “I’ve told deputies who work in my courtroom they are not allowed to question why people are here,” she said. “And I have no signs posted outside my courtroom with restrictions. Of course, if someone needs help or direction, deputies can be a valuable resource but they are not to stop people and ask them why they are here.” However, access to first appearance hearings in Clayton County Magistrate Court is regulated by a deputy posted at the door.

A limited number of the public is allowed to attend. Several benches separating the inmates from the public are kept empty, diminishing the amount of space allotted for the public, which typically includes inmate families and supporters. Lawyers and members of the media sit in the jury box. Dallas appeared perplexed at learning of the closure, so did Benefield and Carbo. However, Benefield said she understands security issues. “The bottom line is you have the right to control the courtroom,” she said. “If someone is disruptive, he has to leave. But it’s absolutely essential for courtrooms to be open so people have confidence in the judicial system. The people have the right to see what elected and appointed officials do and how they act within the boundaries of the law.” Not only does public access assure confidence in the system, it protects judges, too, said Benefield. “We issue decisions that are not always popular but the law is what it is,” she said. “By the public being able to see the proceedings, they can see why a decision was made, that it was made because of the law not because ‘she’s mean.’ It’s difficult for judges to defend themselves so it’s valuable for the public and the parties to see the process so they can have confidence in the outcome.” A recent U.S. Supreme Court that originated from Georgia, confirms the public’s right to courtroom access. In Presley v. Georgia (2010), a defendant in a drug trafficking case objected to his uncle being removed from the courtroom during jury selection and the high court agreed. Benefield said the rul-

ing means the remedy for excluding the public must be narrow and not simply mean closing off the entire procedure to everyone. “It’s got to be a rare case for a closure,” she said. “Whoever is seeking the closure must have an overriding interest. The remedy must be narrow and a reasonable alternative be found. It’s a balancing thing. There also needs to be a written order on record and a reason why part of a proceeding is closed.” The same rules apply to sealing court records, which are also open to public scrutiny. Carbo has gotten attorney requests to seal records in product liability cases based on trade secrets. Not all requests are granted. “I’ve read some of the requests and told attorneys that I saw no mention of trade secrets in the paperwork,” he said. “I’ve denied sealed orders because of that.” Benefield said she typically seals records involving psychological evaluation and Department of Family and Children Services. “These are records that are routinely sealed which I’m OK with,” she said. Temporary Protective Orders, typically referred to as restraining orders, are kept out of the public eye to protect the alleged victims, Social Security numbers are redacted and final orders of divorce are sometimes sealed because they contain personal financial information. However, the sealings are done at each judge’s discretion. “I wouldn’t mind having a set of guidelines on sealing records,” said Benefield. Carbo agreed. “We look at it as ‘everything’ is public except — fill in the blank — and then there has to be a basis for that exception,” he said.

County Public Schools. Nicole Holcomb is compliance coordinator and records custodian for Henry County Schools. Both said it is not hard for the average person to get access to information about their neighborhood schools and school district. Residents have access to all regular and special called meetings of governing bodies, including school boards. White said there is a range of material considered public record such as emails, documents, contracts and evaluation records. Conversely, there are documents that are not public record,

including student records, medical records, certain benefits information and job references information. Holcomb said some school records already exist in the public forum while some records are requested directly from her office. But other records can be gotten from administrators at the school level. “Those are routine requests that go to schools,” said Holcomb. For example, she said a parent asking for his or her child’s educational records is considered a routine request, and it often does not require a formal written

letter, just proof of identification. Records requests handled out of the central administrative offices are typically more formal requests. “We try to be a customerfriendly central office,” said Holcomb. “We have three days to respond to a records request (by letter notifying a person of the progress).” Holcomb and White both said they have experienced times when requests have been made for documents that do not exist. “The district is not required to create a document that doesn’t currently exist,” said White.

He said the district is not allowed to provide certain information such as personal addresses, phone numbers and Social Security numbers, which all would be redacted from the public view. Individuals who work for the district or attend school in the district have open access to their own records. White said personnel files are among those most requested by former employees, media and attorneys. He said that most records are available to citizens with minimal red tape. But occasionally requests are complex and require a little

more work. “We do request that people put it in writing so that we give them what they ask for,” said White. “It’s for clarification purposes,” explained Holcomb, “so that I can make sure I’m thoroughly reviewing what the person requested, and I’m actually getting exactly what they requested.” Clayton County residents can call White at 770-4332700 ext. 700133. His office is at 1058 Fifth Ave. in Jonesboro. Henry County residents can call Holcomb at 770-957-6601. Her office is at 33 N. Zack Hinton Parkway in Stockbridge.

Clayton County Superior Court Chief Judge Deborah Benefield has a sidebar with, from left, Clayton County prosecutors Erman Tanjuatco and Jason Green, and defense attorney Lloyd Matthews during a hearing in the Noted Atlanta attorney Bruce Harvey represents Marlo Jonathan Bun murder case. At right is court reporter Fallings during a first appearance hearing in Clayton Richard Miller. (Staff Photo: Kathy Jefcoats) County Magistrate Court. (Staff Photo: Kathy Jefcoats)

Personnel, school information deemed public record BY JOHNNY JACKSON

jjackson@news-daily.com

Access to meetings and records for the average citizen is much broader than they may think. That is the estimation of school officials in Henry and Clayton counties. Political figures, attorneys and news reporters are not the only people with access to information under the Open Records Act, which affords residents rights to a wealth of information about government and public documents and institutions. Charles White is records custodian for Clayton

16A r FRIDAY, NOVEMBER 29, 2013

news-daily.com

Georgia relaxes access to Juvenile Court BY KATHY JEFCOATS

glected children while preserving the right of citizens to know what is going on in these proceedings,” he said. Wiles didn’t fight the amendment for fear of losing the entire bill, Teske said. Lastly, presiding judges have the authority to open any hearing that is not otherwise open. “Of course, there must be good cause and steps taken to protect the confidentiality of the youth,” he said. “Typically, cases receiving high media profile in which the public has an interest are made open, but names and pictures of the child and parents are prohibited.” A recent example of this in Clayton County is a case involving a 14-year-old Morrow High School student who made three bomb threats against the school in February 2012. Teske approved the presence of news reporters during the teen’s appearance in Juvenile Court. He

ordered the teen to be evaluated because of the incident and incidents in the child’s native Philadelphia, but not detained in YDC. Teske said he strives to seek balance, not absolute restriction of the public and media from Juvenile Court. “While I definitely protect the identity of youth, I am a strong advocate for balancing this confidentiality with the interest of the public to know what is going on in the juvenile courts of this state,” he said. Teske said there are ways to let the public know what is happening without compromising the interest of the offender to his or her identity confidential. “These confidentiality laws are not intended to conduct ‘Star Chamber’like proceedings,” he said. “When Juvenile Court judges are allowed to conduct proceedings absent some form of observation and critique, there is a risk for abuse.”

About three years ago, the legislature opened all child deprivation hearings News reporters know the to the public. Teske was part restrictions where juvenile of the process, testifying in offenders are concerned — Atlanta in support of public they can’t be identified beaccess. It wasn’t an easy cause of their ages and most passage. hearings are off-limits. “The bill as written did The theory behind the not protect the identity of confidentiality was that kids and I argued to change juveniles — in Georgia, the bill to allow judges to anyone 16 or younger is a prohibit the publication of juvenile — sometimes do their identities,” he said. foolish things that shouldn’t “The senator who sponsored be held against them as the bill, Republican state adults. Sen. John Wiles from Cobb, However, Georgia has would not consent to my loosened those restrictions request during the judiciary in recent years and that committee meeting.” relaxation of the law means Teske sought individual greater access for the media support from state repreand the public. sentatives and got it from Clayton County Juvenile Atlanta Democrat Stacey Court Chief Judge Steve Abrams. The bill passed the Teske said the state started House and the change was relaxing the laws regarding consented to in conference juvenile offenders about 20 committee. years ago. “She made a motion to “Georgia has relaxed the amend the bill adding lanconfidentiality of juvenile guage authorizing Juvenile cases over the last 20 years, Court judges to protect the beginning with opening des- identity of abused and neignated felony proceedings to the public,” Teske said. Designated felonies include a list of about 30 felonies for which the youthful offender is subject to a minimum of one year and a maximum of five years in a Youth Development Campus, or what is in reality a youth prison. A new law that goes into effect in January divides those designated felonies into Class A and Class B offenses. “Class A felonies are serious and the offender is still subject to a maximum of five years, but Class B crimes are lowered to a maximum of 18 months in detention,” Teske said. Juvenile Court hearings involving offenders who have previously been adjudicated on a felony are also open to the public. kjefcoats@news-daily.com

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Teske was personally involved in the aftermath of a Juvenile Court scandal in Luzerne County, Pa., where two judges took advantage of the confidentiality laws to create a system of kickbacks that netted them millions of dollars. Called “Kids for Cash,” the scheme involved the judges finding juveniles guilty of offenses without benefit of counsel and placing them in one of two private, for-profit juvenile facilities. As a result of the investigation, juvenile offenders who appeared before the two judges between 2003 and 2008 had their adjudications of guilt vacated and records expunged. The two judges were convicted. One got 28 years

in federal prison; the other, 17 1/2 years. “I was asked to go there to testify in favor of new laws to help prevent this abuse from happening again,” he said. “Also, a book was written about it and I was asked to provide a blurb describing it.” Teske’s advocacy for juvenile justice reform has garnered him state and national attention. Gov. Nathan Deal called him a “revolutionary” in July when he recommended Teske for a Henry Toll Fellowship. Teske’s approach to juvenile justice has become a pilot program for courts across the country. In almost 10 years, the number of children arrested in Clayton County schools has dropped 83 percent.

NOTICE OF DATE CHANGE FOREST PARK CITY COUNCIL MEETING The next regular meeting of Mayor and Council of the City of Forest Park will be changed from Monday, December 2nd to Tuesday, December 3rd at 7:00 p.m. at Forest Park City Hall. CITY OF JONESBORO PUBLIC NOTICE – CONDITIONAL USE REQUEST The City of Jonesboro Mayor and Council will consider a Conditional Use Request from – Mr. David J. Walker Sr. and Mr. Bobby E. Farmer (owner’s) concerning the property located at 216 N. McDonough Street, Jonesboro, GA 30236 for a tutorial center. The property is currently zoned H-2 and requests Conditional Use of C-2. The Conditional Use Request will be heard at the December 2nd, 2013 Council Worksession held at 6:00 p.m. and voted upon at the Regular Meeting of Mayor and Council which will be held December 9th at 7:00 p.m. at 170 South Main Street, Jonesboro, GA 30236. The Public is invited to attend. Janice Truhan City Clerk