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New sunshine law provides tool to citizens

Posted: June 17, 2012 - 12:00am

Today, Georgians legally have more power than ever to examine and review the records and meetings of their local and state governments.

The Legislature’s 2012 rewrite of Georgia’s open government laws, on paper, should help make government more transparent. The challenge will come in how the new provisions are interpreted by the courts and public officials – and how citizens use the tools the law provides to engage with, and keep an eye on, their government.

Georgia Attorney General Sam Olens, who championed changing the law and played a critical role in making sure citizen access was strengthened in its language, has pledged his office will be aggressive in supporting the citizen empowerment intended by the changes.

But it’s also a given that there will be some public officials who won’t comply. They will simply ignore or actively resist the parts they don’t like. It has always been that way.

Those officials could face harsher penalties for a lack of compliance. Strengthened penalties for violating open government laws tended to receive the lion’s share of press attention about the legislative changes.

Under the revised law, if a citizen is illegally denied access to a public record or a meeting, the violator could face misdemeanor criminal charges and a fine of up to $1,000 for a first violation, and $2,500 for a subsequent offense. It used to be a $100 fine.

In practice, though, for a public official to be charged with a criminal offense, a prosecutor (the solicitor, district attorney or the attorney general) would have to be able to prove the public official “knowingly and willfully” violated the law. That is the same high standard of proof that was in the law before, and the number of successful prosecutions of public officials for violating it over the past 30 years can be counted on half of one hand.

The revised law does lower the civil standard and says that if a citizen sues a public official or government for non-compliance with the law, and the court concludes the government was negligent, the court can impose a fine of up to $1,000, or $2,500 for subsequent violations. Before, there were no fines for civil violations.

However, litigating against local government still can require deep pockets. Remember, the other side isn’t using their money to pay for their defense; they’re using your tax dollars. If you win what often can be a drawn-out battle to get access to a police report or government contract or whatever, recovery of your attorney’s fees is allowed, but not required. And, historically, judges in Georgia have rarely forced local governments to pay anything close to the full price if they lose.

In essence, it is probably fair to say the amended laws now have baby teeth to help punish open government sinners.

But the value of the legislative changes is actually found elsewhere.

The real benefits for citizens include reduced copying fees for public records, down from a quarter per page to a dime, and strengthened language on electronic records that can take additional cost out of a records request. The open meetings law has been strengthened to insist that all final votes, including votes on settlement negotiations and real estate acquisitions, must be taken in public and that minutes of executive sessions must be kept in case someone later challenges whether a closed meeting was legal.

Moreover, the new open records law now has a preamble that might be its greatest strength. It states that the “General Assembly finds and declares that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.”

The key is in that last part. People are more likely to trust government they can see. If you have a concern about local government, or a distrust of it, don’t take the view that you can’t fight city hall. And don’t defer to the opinions of talking heads (including this one).

The Legislature has improved the path for citizen access to their government. But Georgians will need to use it, or it will grow over.

(Hyde Post is president of the Georgia First Amendment Foundation, www.gfaf.org, where donations are needed to continue the mission of promoting open government.)

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Comments (3)

Riverman1

Richmond County has a policy

Richmond County has a policy of excessive charges when they are requested to produce records. They have to get the legal department involved, find the information which can take all day and then charge excessive copying fees. I've commented extensively about these tactics to discourage the press and public from having access to records. If they can't find records in a resonable amount of time, it's the fault of their filing system. The public shouldn't have to pay for their ineptness.

soapy_725

paying for red tape

Paying for governmental red tape is akin to death and taxes. I agree "river", but when one recourse is opened to the public, another "wall" is placed. We don't, as citizens, have the expertise to handle all of this information. Remember government cannot be run as an efficient business. So don't ask them to be efficient and cost effective. And more recent comments declare it cannot be run with "military discipline". So don't ask government employees to be disciplined and accountable.

Little Lamb

Excessive Fees

Riverman is correct about how Richmond County government tries to discourage citizens from seeking government files.

The first thing they do is take too long to find the files, and involving the legal department in every file request is completely unnecessary.

The second thing they burden the citizen with is copying everything in sight and making you pay for all the copies. What I have done since I was a victim of their predatory practices is insist up front that I do not want them to make copies. I tell them I want to review the files first, and then I will decide which copies I really need.

That is the way the open records law is written. The government agency is supposed to let you review entire files. You don't even have to copy anything if you don't want to.

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