Access laws need legal remedies to work better

By Hollie Manheimer

Sunshine Week is the national initiative to encourage dialogue about the importance of open government. It coincides with the March 16 birthday of James Madison (the father of the First Amendment), and is a good time to review Georgia’s open government laws. How do we compare to other states, and more importantly, how can we improve?

One thing Georgia does well is articulate its general principle. Both our open records and open meetings acts start from the premise that all government documents and meetings are open, and any exception is very much that — an exception.

In fact, our courts have instructed us in no uncertain terms that exceptions to the general rule of openness must be as limited and as narrow as possible. We should be particularly mindful of this fundamental principle, particularly as new exemptions are proposed every year at the Georgia General Assembly.

In nearly every instance, the goal of these exemptions is to further limit public access to public records or access to public meetings.

Georgia’s open records act gives our public agencies three business days in which to respond to public records requests. Not bad, considering Alabama, Mississippi, and Tennessee have no specific response times at all.

On the other hand, Arkansas requires its records custodian to designate an exact date and hour, inside the three business days when the records will be available. We should oppose any proposals to extend the amount of time allowed for a public agency to respond to open records requests, because the three-day period remains one of the true strengths in our law.

Too many citizens still receive no response to their open records requests, or receive responses so late they are no longer useful.

Our open records act also allows our public agencies to charge up to 25 cents per page, for copies of public records. Again, not bad, considering New Mexico charges up to $1 per page, per copy.

On the other hand, the Carolinas, Virginia and West Virginia have no fixed fee charge per page, per copy and Florida charges 15 cents per page.

Further, while our law permits a charge for document search and retrieval time, it is limited to the hourly rate of the lowest paid individual able to manage the task (the first 15 minutes of which are free) — and there can be no charge for the cost of city, county or other attorneys in the event that they review the records.

Yet, even better, Kentucky prohibits labor time in calculating the cost of its copies, and Arkansas allows labor time to be charged only after the first two hours of document search and retrieval time.

Where our open government laws seem to fall short is in the available remedies. Georgia’s laws permit Superior Court civil litigation and criminal prosecutions, for open government violations.

However, litigation in this area is neither practical, nor efficient. Few citizens will finance a Superior Court lawsuit in order to obtain what they properly perceive already as their own records. And over the last few decades, there have been less than five criminal prosecutions of the open government laws. In 1998, the law was changed to allow the Attorney General’s Office to prosecute civil and criminal cases on open records and meetings complaints — clearly a step in the right direction.

Yet, we must do more to empower our citizens to pursue open government complaints, if they believe a public agency has not fully complied with the law.

Although not exactly a remedy, Florida’s sunset provisions would in a single step do more to strengthen the open government laws in Georgia than any remedy to the existing law. The Florida Open Government Review Act mandates the review of an open government exemption, five years after it is enacted. The exemption is then repealed, unless affirmatively reenacted by the Florida Legislature.

Regarding freedom of information training, in our state, the Georgia First Amendment Foundation works to educate the public and public officials on a voluntary basis.

In some states, however, training to educate newly elected or appointed public officials is legally required by statute. For example, Maryland requires mandatory training by a state compliance board on the open meetings laws for public bodies, the Maryland Municipal League and the Maryland Association of Counties — including their staffs and attorneys.

Citizens have traditionally brought very few open government lawsuits, because currently, Georgia law allows the recovery of attorney fees only if a citizen can prove a willful violation of the law by a public agency.

However, willful violations are difficult to prove, and it’s difficult to finance litigation when the prospect of recovering attorney fees is slim.

Therefore, a proposal that appears with some regularity during each Georgia legislative session is prevailing party fees for citizens or plaintiffs who bring these lawsuits; citizens, although not public agencies, would receive attorney fee reimbursement upon prevailing. This change in the law would motivate more attorneys to consider litigating worthy open government claims.

Georgia’s open government laws can be improved, and we should consider existing best practices to better strengthen our communities. An informed public remains the cornerstone of our democracy.

Hollie Manheimer is executive director of the Georgia First Amendment Foundation.