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Henry Herald DAILY


Henry County’s News Source since 1874 50 cents ©2013 SCNI Vol. 42, No. 145

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

the Henry Daily Herald is designed to empower citizens and inform elected “Government belongs officials for the purpose of to the governed, not the refining and improving our governing.” community. McDONOUGH — These The Henry Daily Herald words resonate in our believes that open governnewsroom as we work each ment is good government. day to provide local news, In this edition, reporters features and commentary. Kelsey Cochran, Rachel It is our commitment to Shirey, Heather Middleton, these principles that guides Johnny Jackson, Kathy us as we serve the citizens Jefcoats and Curt Yeomans of Henry County. take a look at government This special edition of 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 Henry Daily Herald believes that open government is good government.”

Jim Zachary

— Editor Jim Zachary

See LAW, Page 5A


Citizens have recourse if denied access BY HEATHER MIDDLETON

Hudson for advice. Eventually, however, she had to take the extraordinary step of going to Senior Assistant Attorney General Stefan Ritter when other efforts to resolve the dispute failed. “In a word, (it was) disheartening,” said Cochran. “The AG’s mediation program is obviously there for a reason, but taking such formal measures and asking for assistance from state-level officials is always a last resort. This entire issue could have easily been avoided. “I always want to be able to, in good faith, believe my open records requests can be answered after a phone call or an informal email,” she added. “Government organizations with nothing to hide would never have reacted to this simple request the way Stockbridge did.” In light of the newspaper’s dogged — and public — efforts to shine light on the situation, city officials have cooled on the idea of creating a police department and it

All Henry 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 a 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 as a remedy. 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 wise to make an informal request first. “There is no need to be heavy-handed,” 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 feel like they can 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 citizens. “We work with governments to make sure citizens are getting what they ask for,” said Lauren Kane, communications director for the At-

See BATTLES, Page 5A

See ACCESS, Page 5A

The Stockbridge City Council mulls over city business in this Aug. 9 file photo. The Henry Daily Herald found itself in a battle with Stockbridge officials over public access to police chief applications and resumes. (Staff Photo: Jim Zachary)

‘Nothing to hide’

Transparency battles put citizens first BY CURT YEOMANS

There are times when getting a government agency to allow access to public documents can be compared to pulling teeth from a shark’s mouth. But there are other times when it can be as easy as pie. A recent records request by the Henry Daily Herald from the city of Stockbridge — over applications for police chief applicants — falls more in the “hard” category. Reporter Kelsey Cochran said the creation of a city police department sent up red flags almost immediately. “First, the mayor and council approved the department with little public discussion and zero public hearings,” said Cochran. “This was such a serious issue that affected all of the citizens on such a personal level, yet they had no say in the matter. We thought that was wrong.” The red flags continued to fly when the newspaper began hearing rumors that Stockbridge officials pos-

First, the mayor and council approved the department with little public discussion and zero public hearings,” said Cochran. “This was such a serious issue that affected all of the citizens on such a personal level, yet they had no say in the matter. We thought that was wrong.”

— Reporter Kelsey Cochran

sibly “stacked the deck” in favor of former Henry County deputy police Chief Stoney Mathis, said Cochran. Mayor Mark Alarcon then pulled the appointment from a meeting agenda at the last minute, and Cochran said that is when she decided to pursue an open records request for the names of finalists and resumes and applications of applicants for the police chief position. “After the mayor pulled the appointment from a meeting agenda, I figured the process was already more than far enough along for us to find out who was being considered for the job,” she said. “I wanted to find the truth in the rumors, and hoped to be able

to debunk them.” The city, however, refused to release the documents on the grounds that the hiring process wasn’t far enough along for the documents to be made public. However, Cochran said that through her investigation she was able to verify that the city may not have been as transparent in the process as the mayor had claimed. Although she was able to track down some of the information she was seeking through other sources, Cochran still needed those documents to support her research. When the city wouldn’t comply, she turned to attorney and open records expert David

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J.K. Murphy, Vice President, SCNI

Jim Zachary, Editor


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 Henry Daily Herald 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: Henry Daily Herald, P.O. Box 278, McDonough, GA 30253, dropped off at our office at 38 Sloan Street, McDonough or emailed to editor Jim Zachary at jzachary@

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




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 Henry Daily Herald takes its public service seriously and is committed to being the eyes and ears of Henry 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'SPN1BHF" remains to be seen if one will indeed be established. Cochran said the city has still not complied with the request, but she added that she will likely resubmit the request once Mayor-elect Tim Thompson takes office in January. “I’ve been vocal in my opinion that the only chance the city would have at fairly appointing a deserving candidate for the position would be to begin the hiring process from scratch,” said Cochran. “But, of course, the mayor and council could very well choose to abandon the idea of a police department altogether.” Herald Editor Jim Zachary said, “In the end, this battle was all about the citizens of Stockbridge and it is the citizens who won out. The plans to railroad a city police department and a hand-picked chief before the election were halted and now a new — hopefully more transparent — mayor and city council can move forward including citizens in the dialogue and vetting candidates in as open a manner as possible.” During the city election, mayor-elect Thompson, along with each of the other mayor candidates and candidates for city council, adamantly said there was a lack of transparency in Alarcon’s administration. In pubic forums citizens echoed the same misgivings. The Henry Daily Herald, on its editorial pages, called on citizens to make a change in leadership and use their vote to voice displeasure over the lack of government transparency. That is exactly what happened in the city election, with Alarcon coming in a distant fourth place. “Our efforts were simply to empower citizens and encourage them to take charge of their own government and that is what they did at the polls,” Zachary said. )PXQVCMJDEPDVNFOUT IFMQSFTJEFOUT The police chief issue is not an isolated case of the Daily Herald having to push for information from Stockbridge officials. Government reporter Rachel Shirey said she too has had to fight hard to get information from the city, but she added it’s an exception to the rule in Henry County. “I would say in the last couple of months, Stockbridge has probably been a little bit more of a challenge because of the

FRIDAY, NOVEMBER 29, 2013 r 5A r'SPN1BHF" torney 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 itself will purse 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 Henry Daily Herald, call 770-957-9161.

Battles constant battle for openness there,” said Shirey. Shirey recounted an incident where she had to miss a Stockbridge City Council meeting because she was attending a Hampton City Council meeting. She knew Stockbridge council meetings were videotaped, so she tried to obtain a copy of the video to catch up on what she missed. The city discussed a property off Walt Stephens Road, where Autumn Leaves retirement community is being built. She said she was told by Alarcon that she couldn’t have a copy of the video because they filmed the meeting on a personal video camera instead of a city-owned one. “I asked, ‘Is this a cityowned camera?’ And the mayor, Mark Alarcon, looked at me and said, ‘I see what you did there. You’re asking me that because you want to ask for that information,’” Shirey said, adding that he replied it was a personal camera while trying to dance around the Open Records Act. Alarcon never released a copy of the video to the Henry Daily Herald. During open records training session for journalists in September, Ritter told a reporter from the newspaper that if the city has the record, the record is open for public inspection, regardless of the equipment it’s on, if it involves city business. But when governments let the sun shine on public records, there are real benefits for residents. Shirey said that when governments in Henry County have released documents to her, it has helped provide better coverage. However, she added governments are doing right by their residents when they comply with requests for records. “I always include information from city or county documents because they enhance my stories and I’m usually the only one (outside of government) who has these documents,” said Shirey. In more cases than not, Shirey said she has found governments in the county have not put up a fight about releasing documents that elected officials have at their disposal when discussing the items in public. In some cases — such as McDonough — she only had to make a one-time informal request for documents to get a new precedent set of having those

records ready and waiting for her at meetings. She said it wasn’t what she expected because she was used to having to push to get documents when she was the education reporter for Clayton News Daily, a sister publication of Henry Daily Herald. “I was surprised,” said Shirey. “With McDonough, for example, I would walk up to them and talk to (city clerk) Janice Price and I would say, ‘I would like these documents. I would like the public records that they’re looking at, so I can have an idea about what’s going on in these meetings.’ “They didn’t put up a fight and there was no discussion,” Shirey continued. “She talked about it with the mayor, and let the mayor know that I requested it and now ever since then, every time I go to a city of McDonough meeting, I have a packet waiting for me with all of the documents that the city council members will be looking at.” She later added, “It’s not digital, but it has everything I need.” Information that Shirey has found in public documents, and used in her stories, has included details of a troubled history for the old McDonough Downtown Development Authority, plans for Henry County officials to spend almost $58,000 on median landscaping on Ga. 138 in Stockbridge and even the early details of Stockbridge’s plans to start its own police department. Shirey has also been able to report illuminating background information about the Henry County police department and sheriff’s office coming together to develop a joint training center. And her reporting on the county’s fiscal year 2014 budget was helped by the fact that commissioners posted it on their website while it was being considered for approval, she said. Zachary said, “Access to public records is valuable because all the information contained in public documents belongs to the public. It is really that simple.” When governments make records available upfront to members of the media, it reduces the likelihood that a reporter will have to resort to using open records requests to obtain information. That means the information can flow faster to the public because it can take up to three days to receive documents through an open

records request. “People with nothing to hide should never act like they have something to hide. It just makes the public suspicious. When a citizen, including the press, asks for a public document we are simply asking for a copy of what already belongs to us,” Zachary said. One of the reasons why Shirey said it is important for someone to tell residents what is in these documents, or for elected officials to at least have thorough, detailed discussions about each agenda item is that citizens sometimes get lost trying to follow along. “They help me out just about every time because they have an issue discussing the information in a way that would make sense to the people in the audience,” said Shirey. “They discuss the information as if we already know about it, as if we have that information in front of us. In some instances, we do and in some, we don’t.” One example, she said, is whenever county officials discuss purchases of equipment, such as public safety vehicles or new machines. “They discuss it as if we’re not present — as if the citizens aren’t present,” said Shirey. “They discuss it as if it’s a business discussion which makes it very hard for an outside party to understand.” But, on the flip side, there have been times when officials invited so much public dialogue on a subject that public documents weren’t needed to supplement the information made available during the meeting. Shirey pointed to one example in Hampton, when officials considered whether to use concrete, gravel or pavers to add 21 new parking spaces in their downtown area in May. As the town leaders debated which route to go, Mayor Chris Moore decided to bring the residents in attendance into the discussions. “We’re here to represent your issues, so if you like pavers, why don’t you raise your hand?” Moore was quoted as asking residents in the May 10 edition of the Daily Herald. The residents chose to go with the pavers because, after listening to the debate about cost and manageability, they felt it was the easiest option to work with. Shirey said she also felt as if the dialogue between residents and

their elected officials provided her with enough information to report on the meeting accurately. “They discussed items so thoroughly, because they are such a close-knit community, that sometimes I didn’t need documents,” said Shirey. 5IFPQFONFFUJOHTBOHMF Some elected bodies in Henry County do a good job of being transparent about their dealings, said Shirey. She pointed to the Henry County commissioners, who put detailed agenda packets online, as an example of a government entity who puts information out into the public realm before meetings. Such packets are not uncommon among government entities. The University System of Georgia’s Board of Regents, the State Board of Education and many local school boards who use the Georgia School Boards Association’s eBoard service put detailed agenda packets on their websites prior to meetings. And Shirey gave props to one city that might come as a surprise in light of recent controversies. “The city of Stockbridge — even though there are questions about government transparency — have all of their city documents online,” said Shirey. But executive sessions are a different animal, and an area where officials in Henry County are still lacking in some regards, said Shirey. There are areas where they could be more forthcoming about executive sessions and the newspaper ran several editorials earlier this year calling on elected leaders to do more business in public, open sessions. Oftentimes when these officials come out of executive session, they don’t offer the most enlightening explanations to residents about why they went behind closed doors to deal with certain business items. Shirey said she’s seen that type of behavior before, when she previously covered the Clayton County Board of Education. “Most meetings for most municipalities, whether it’s the county or the cities, will come back and they’ll do the same thing that the Board of Education did in Clayton County. They will say, ‘We have discussed this personnel matter behind closed doors. We’re going to vote on the action that we discussed there’ and vote on it without releas-

ing any information,” she said. That flies in contradiction to assertions made by Ritter that government agencies must give enough information about the nature of the executive session discussions to let the public understand the issue at hand when they vote. But, officials do get it right sometimes. Shirey recounted one instance where McDonough leaders were forthcoming about why they went into an executive session to discussion a litigation issue. “They were in there for 45 minutes, which is pretty lengthy for the city of McDonough, and they came back and Councilwoman Sandra Vincent said, ‘We’re going to take action on this case’ and she gave me a case number and the basic information I needed to know there was a pending lawsuit,” said Shirey. “The city of McDonough is the best about that,” she continued. “They will actually give me a little tidbit of what was being discussed. They are the only ones who do that.” However, try as they might to be open, there are times when officials make headlines for the length of an executive session rather than why officials went behind closed doors. In February, the Henry County commission spent nearly two hours discussing what the newspaper reported at the time as constituting “employeerelated matters and litigation. Prior to that meeting, Chairman Tommy Smith and District II Commissioner Brian Preston had said the county had been threatened with a lawsuit, but no other information was released. Zachary, who is a longtime open government advocate and was the founder of the Tennessee Transparency Project prior to moving to Georgia said, “The fact you are allowed to do something does not mean you have to. The state allows local leaders to go into executive session, but it does not say they must. Yes, it makes perfect sense to protect the privacy of employees, but elected officials tend to go too far and discuss far more than they should behind closed doors. Many states do not even allow executive session for personnel issues and land acquisition, so that proves that it can be done out it the open.”

6A r FRIDAY, NOVEMBER 29, 2013

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

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 Senior Assistant Attorney General Stefan Ritter in an open meetings seminar hosted by the Georgia Press Association. In neighboring Clayton County in February, the 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 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

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)

that executive sessions are required or mandatory.” 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 cau-

tion 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 present 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 that was discussed in executive session. And when a personnel issue discussed in executive session has officially closed or been resolved, the personnel records or findings becomes 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 call Ritter at the Attorney General’s office at 404656-7298.

FRIDAY, NOVEMBER 29, 2013 r 7A

Government transparency begins with citizen awareness BY RACHEL SHIREY

Information is power and it begins with awareness. All government bodies, including those in Henry 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, “information about government activities must be accessible in order for the electorate to make wellinformed decisions. Public notices in newspapers provide this sort of accessibility to citizens who want to know more about government activities.� And Georgia state law takes their side. A handbook on the Georgia Sunshine Laws published by Attorney David Hudson says 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 it’s city hall, a county administrative building or board of education building. The notice must also be on the agency’s website. This way, citizens can be informed and present at an agency’s public meeting whether it’s local government or any smaller committees, board of education, library or hospital board meetings. For example, the city of McDonough posts its meeting and cancellation notices on the front doors of City Hall. It also has a calendar of events that lists the time and date of all meetings such as council

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 agency’s website. (Staff Photo: Rachel Shirey)

meetings, planning commission meetings, historic preservation meetings and all citywide events. “If they don’t have notice, they don’t have an agenda, that’s illegal,� said Assistant State Attorney Stefan Ritter in an open meetings seminar hosted by the Georgia Press Association. Before the city of McDonough updated its website this fall, the committee meeting information was a general list of vague times and dates, such as the council will meet the second and third Mondays of each month at 5:30 p.m. However in some instances, the meetings began at a different time or didn’t happen on the day listed. In July, the general meeting dates happened to fall on the Fourth of July and the meeting was conducted at a different day. The website was never updated. Ritter said, in the past, the city of McDonough violated the law in terms of notice with their misleading and false meeting start times. He added it could

have been an oversight, but in the case that it was purposefully misleading and hadn’t been updated, then they were breaking the law. However, the city has since updated its website and this is no longer an issue. Likewise, Henry County, Stockbridge, Hampton and Locust Grove post notices at their respective meeting places and on their websites. When all else fails, government bodies are also required to inform the legal organ newspaper, the Henry Daily Herald. Public notice is required to be given to the Herald 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 Henry Daily Herald would do its best to get the information out to citizens, whether it’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 that meeting’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. McDonough city leaders send an email blast to citizens who request it with the agenda attached and, beginning this fall, posts the agenda on the city website. Stockbridge and Henry County officials also post their agendas and related city documents to the websites. Locust Grove and Hampton have their agendas available upon request at City Hall. Citizens can access the Henry County Board of Education’s agenda through the agency’s website, however the agenda is known to be posted from as little as one day to 10

minutes prior to the meeting. 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 “becomes necessary� during a meeting and with 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 — that’s an issue. “Surprise, they did not expect it and they cannot defer it — if they meet that two-part test, then they are legally allowed to discuss it that night. Otherwise they should defer the topic,� Ritter said, adding that it is generally abused by most government agencies. Henry County’s municipalities are also required to make any supporting documents to an agenda item available to citizens if requested. In the case of the county commission, the city of Stockbridge and the BOE, supporting documents are automatically made available when the agenda is posted to their websites. 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 Hudson’s Georgia Sunshine Laws Handbook, “The minutes of a regular meeting become public when approved at the next meeting. A summary of a regular meeting must be available to the public after two business days.� 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. Stockbridge and county officials are the most diligent about making minutes and minute summaries easily available. The information is posted on their websites and citizens don’t have to request the information. The city of McDonough’s website also has the minutes available for citizens, a change made earlier this fall when the website was revamped. The minutes for meetings in Locust Grove and Hampton are, again, available upon request from the city clerk. A citizen can request the public minutes from Board of Education meetings from the superintendent’s secretary. The same laws that govern Henry County’s municipalities apply to any “agency,� 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. “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,� said Jim Zachary, editor of the Clayton News Daily and the Henry Daily Herald. “Citizens have every right to expect these three basic protections from local officials.�

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8A r FRIDAY, NOVEMBER 29, 2013

Police documents mostly open to public BY KELSEY COCHRAN

gia Department of Law, Georgia Press Association, Georgia Public Henry County resiSafety Training Center, dents have myriad the Georgia State Patrol, resources available to Georgia Sheriffs’ Assothem when it comes ciation and the Prosecutto obtaining important ing Attorneys Council of information related to the Georgia and encourages criminal 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 booklet for guidance. a booklet called “GeorFor example, the pubgia Law Enforcement lication gives abridged and the Open Records bullet points with attribuAct,” which offers law tion to each specific code enforcement personnel section that regulates a comprehensive guide things like the release of to open records and best accident reports, incident practices to ensure trans- reports and matters inparency between policing volving juvenile offendagencies and the general ers and victims. public, as well as the Submitting an open renews media. 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

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. Henry County Police Sgt. Joey Smith 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

Janis Price 770-957-3915, ext. 2205 jprice@mcdonough-ga. gov 136 Keys Ferry St. McDonough, GA 30253

4640 North Henry Boulevard Stockbridge, GA 30281

Pkwy. McDonough, GA 30253 *Henry County Schools has an open records request forum available at schoolwires.henryk12.

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 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.

Who exactly are the records custodians? BY CURT YEOMANS

The Cities: Hampton Kim Drinkall 770-946-4306 17 East Main St. Hampton, GA 30228

Pat Watson Locust Grove Theresa Breedlove 770-957-5043 3644 Hwy. 42 Locust Grove, GA 30248 McDonough

In Education:

Henry County Schools Stockbridge Nicole Holcomb Rhonda Blackmon 770-957-6601 770-389-7900, ext. 203 nicole.holcomb@henry. rblackmon@cityofstock- 33 North Zack Hinton

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Shay Mathis 770-288-6251 140 Henry Pkwy. McDonough GA 30253

*Henry County has an open records request form available at http://www. County Govern- ageMisc/OpenRecordsRement quest.shtml. In Government:

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FRIDAY, NOVEMBER 29, 2013 r 9A

Public access to courts vital for transparency BY KATHY JEFCOATS

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 ex-

Henry County Magistrate Court Chief Judge Robert Godwin presides over a first preissuance hearing at the Henry County Jail. (Staff Photo: Kathy Jefcoats)

ample 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. Under Georgia law, all courtroom proceedings are deemed open with limited exceptions, and 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. Henry County Chief Magistrate Judge Robert Godwin said his courtrooms are accessible to the public and the media. “An effort is made to make this court accessible to anyone wanting to attend so long as they are not disruptive or interfering with the normal operation of the court,” he said. “I am not aware of any complaints in this regard.” Godwin said there have been a few cases where cameras were denied access based solely on being disruptive or interfering with the process. “On occasion we have had media people show up after court started and want to set up equipment,” he said. “This is disruptive and not permitted. The only time I know access was denied to the media was such a case and even then, the people were welcome, just not the equipment,” he said. Godwin and Henry

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County sheriff’s deputies stationed in his courtrooms also enforce decorum. “We had cameramen in shorts who were not allowed in to the court,” he said. “Their solution was to put on rain pants which was fine.” Nearly everyone with a cellphone also has a camera, which could present issues with surreptitious recording. However, Godwin has addressed that, too. “Cellphone usage is not permitted in the courtroom generally for any purpose,” he said. “It can interfere with the recording equipment the court uses as well as being generally disruptive.” Members of the public must pass through a metal detector to get into court and are turned away if they have cellphones or other prohibited items. Most return the items to their cars and go back in without a problem. Even though Georgia law allows the media to bring in cameras to 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. Godwin addresses camera requests as they arise. “If someone wants to photograph something in court, it would be addressed on a case by case basis,” he said. 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. In general, courtrooms cannot be locked during proceedings. Some exceptions can include testimony from victims protected by the Rape Shield Law and child sex victims. Access to Juvenile Courts is even more restricted but Georgia legislators started relaxing the laws about 20 years ago. At that time, lawmakers said it was OK to open the courts in juvenile cases involving designated felonies. 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. Juvenile Court hear-

ings involving offenders who have previously been adjudicated on a felony are also open to the public. About three years ago, the legislature opened all child deprivation hearings to the public. Open courtrooms help assure the public and the media that judges are making decisions based on law and not emotions or for personal gain. Several years ago in Luzerne County, Pa., two juvenile court judges took advantage of the confidential nature of the juvenile system to create a kickback scheme 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-and-a-half years. While documents filed in magistrate, state and superior courts are accessible to the public, judges have the authority to seal certain documents. Those exclusions can include filings that contain trade secrets, psychological evaluations, Department of Family and Children Services records, Temporary Protective Orders, documents that contain personal financial information or Social Security numbers. Records sealed during criminal proceedings are often opened after the case is resolved.

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10A r FRIDAY, NOVEMBER 29, 2013


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Personnel, school information deemed public record BY JOHNNY JACKSON

Schools. Nicole Holcomb is compliance coordinator and records custodian for Access to meetings and Henry County Schools. records for the average Both said it is not hard citizen is much broader for the average person to than they may think. get access to information That is the estimation of about their neighborschool officials in Henry hood schools and school and Clayton counties. district. Political figures, attorneys Residents have access and news reporters are not to all regular and special the only people with accalled meetings of govcess to information under erning bodies, including the Open Records Act, school boards. which affords residents White said there is a rights to a wealth of infor- range of material considmation about government ered public record such and public documents and as emails, documents, institutions. contracts and evaluation Charles White is records. Conversely, there records custodian for are documents that are not Clayton County Public 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 obtained 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 customer-friendly 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

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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 770-433-2700 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.

16A r FRIDAY, NOVEMBER 29, 2013

Georgia relaxes access to Juvenile Court

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.” 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-and-a-half 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 neighboring Clayton County schools has dropped 83 percent.

NOTICE Monday, December 9 - 6:00 pm - City Hall The Locust Grove Historic Preservation Commission will host a public meeting regarding the possibility of a listing on the National Register of Historic Places. All those with questions are encouraged to attend.


deprivation hearings to the Wiles didn’t fight the public. Teske was part of the amendment for fear of losing process, testifying in Atlanta the entire bill, said Teske. News reporters know the in support of public access. It Lastly, presiding judges restrictions where juvenile wasn’t an easy passage. have the authority to open offenders are concerned — “The bill as written did any hearing that is not otherthey can’t be identified benot protect the identity of wise open. cause of their ages and most kids and I argued to change “Of course, there must be hearings are off-limits. the bill to allow judges to good cause and steps taken to The theory behind the prohibit the publication of protect the confidentiality of confidentiality was that juve- their identities,” he said. the youth,” he said. “Typically, niles — in Georgia, anyone “The senator who sponsored cases receiving high media 16 or younger is a juvenile — the bill, Republican state profile in which the public has sometimes do foolish things Sen. John Wiles from Cobb, an interest are made open, but that shouldn’t be held against would not consent to my names and pictures of the child them as adults. request during the judiciary and parents are prohibited.” However, Georgia has committee meeting.” A recent example of this loosened those restrictions Teske sought individual was case in a neighboring in recent years and that support from state reprecounty where Teske presides relaxation of the law means sentatives and got it from involving a 14-year-old high greater access for the media Atlanta Democrat Stacey school student who made and the public. Abrams. The bill passed the three bomb threats against the Juvenile Court Chief Judge House and the change was school in February 2012. Steve Teske is known through- consented to in conference Teske approved the presout Georgia and the nation for committee. ence of news reporters during his innovative approaches to “She made a motion the teen’s appearance in juvenile justice. Teske said the to amend the bill adding Juvenile Court. He ordered state started relaxing the laws language authorizing Juvenile the teen to be evaluated regarding juvenile offenders Court judges to protect because of the incident and about 20 years ago. the identity of abused and incidents in the child’s native “Georgia has relaxed the neglected children while pre- Philadelphia, but not detained confidentiality of juvenile serving the right of citizens in YDC. cases over the last 20 years, to know what is going on in Teske said he strives to beginning with opening des- these proceedings,” he said. seek balance, not absolute ignated felony proceedings to the public,” said Teske. Public Hearing Notice - Rezoning Designated felonies include City of Locust Grove a list of about 30 felonies for December 16, 2013 which the youthful offender is 7:00 PM subject to a minimum of one Locust Grove City Hall year and a maximum of five 3644 Highway 42 South years in a Youth Development Locust Grove, GA 30248 Campus, or what is in reality a youth prison. Notice is hereby given as required by Chapter 66 of Title 36 A new law that goes into of the Official Code of Georgia Annotated (“Zoning Procedures effect in January divides Law”) and Section 17.04 of the Code of Ordinances, City of those designated felonies into Locust Grove, Georgia, that the Locust Grove City Council, on Class A and Class B offenses. Monday, December 16,2013 at 7:00 PM, will conduct a public “Class A felonies are serihearing for the purpose of the following: ous and the offender is still subject to a maximum of five Rezoning years, but Class B crimes are RZ-13-12-01 Gordon Cook of Locust Grove, Georgia requests lowered to a maximum of 18 a rezoning from C-2 (general commercial) to C-3 (heavy months in detention,” Teske commercial) for property located at 5019-5021 Bill said. Juvenile Court hearings Gardner Parkway in Land Lot 200 of the 2nd District. The involving offenders who have property consists of approximately 0.74 acres. The request is previously been adjudicated to allow for the sale of vehicles onsite. on a felony are also open to The public hearing will be held in the Locust Grove City Hall, the public. located at 3644 Highway 42 South. About three years ago, the legislature opened all child BY KATHY JEFCOATS


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18A r FRIDAY, NOVEMBER 29, 2013

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.