In 2010 and 2011, before results of a state investigation became public and before knowledge of cheating in Atlanta Public Schools was widespread, our reporters were digging.
They had been digging into anomalies in Atlanta test scores since 2008, when the newspaper first revealed unlikely gains that suggested cheating.
Two years later, APS leaders were doing all they could to make the issue go away.
And so our reporters were still digging. Digging into tips about whistleblowers who had been punished. Digging into a cover-up of an outside review of test scores. Digging into a culture that focused more on glowing test results than test integrity.
As part of that digging, our reporters made public records requests of APS, using the law that gives citizens access to records of government so they can assess its effectiveness.
Atlanta Public Schools sent back an unusual response: We’re under investigation, APS said, and so the law says we don’t have to give you records.
That was a ridiculous interpretation of the law, relying on an exemption that protects records of law enforcement investigators during an investigation or prosecution.
The exemption was not written to protect the subject of an investigation.
One of the first things newly elected Attorney General Sam Olens did was straighten out APS officials on their interpretation. By then, APS had a new superintendent, Erroll Davis Jr., who was brought in to clean up the mess left by his predecessor, Beverly Hall. In order to avoid possible prosecution on numerous open records complaints made by the AJC against the previous administration, Davis and the school board signed an agreement drafted by Olens’ office, pledging to abide by the law going forward.
That’s the kind of strong action you have a right to expect from your attorney general, who enforces state laws requiring government transparency. And his job will become easier under HB 397, passed overwhelmingly by the House and the Senate and expected to be signed by the governor.
I was skeptical when Olens initially proposed the first major rewrite of so-called Sunshine laws in more than a decade. I doubted he could get consensus between those who would favor more openness, such as the AJC, the Georgia First Amendment Foundation and other media coalitions, and the organizations that represent cities and counties.
Any Sunshine law is a balance between transparency, efficiency and privacy and it’s not easy to get all the stakeholders on the same page. There were some tense negotiations along the way and no group was happy with everything, but the end result is a significant improvement over current law. It clarifies the process so public officials and agencies can know what is required of them. It modernizes provisions dealing with computerized records and reduces costs to the public. It protects the privacy of citizens. And it protects officials from being prosecuted for inadvertent “meetings” like funerals and social occasions when public business is not conducted.
It also clarifies areas in current law that recalcitrant bureaucrats have used to muddy the waters of public access.
One tactic of agencies that did not want to provide records was to rely on an exemption that says if the record doesn’t exist at the time a request is made, the government does not have to create a “new” record. That’s a reasonable safeguard. But some agencies have argued that removing or redacting private information from a computerized file was the equivalent of creating a “new” record. The new law makes it clear that removal of private material is not equivalent to creating new records.
The law also addresses the investigative exemption cited by APS during the cheating scandal, noting it does not apply to the agency being investigated.
Perhaps the best thing the law does is give the attorney general more tools to punish shenanigans and ensure a climate where government operates in the open.
The law calls for penalties for anyone who deliberately frustrates access to public records.
Fines for violations are increased from $500 to $1,000 for first offense and $2,500 for repeat offenses. And a civil fine is added so the attorney general does not have to prove criminal wrongdoing.
The new law, Olens recently wrote in a column for the AJC, “provides the teeth needed to enforce the law by allowing us to bring civil or criminal actions against violators with increased fines so that they serve as a meaningful deterrent instead of just a slap on the wrist.”
The Atlanta Journal-Constitution wants to explain openly to readers what we do and why. Public editor Shawn McIntosh writes a column every other week to provide insight into newsroom operations, the newspaper’s role in the community and the industry. Write McIntosh at insideajc@ajc.com or join the conversation on editor Kevin Riley’s Facebook page,
About the Author
