Appeals Court sides with Georgia Legislature in shielding its records


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A top state court has backed up the Georgia General Assembly’s desire to keep its records from the public.

On a 2-1 vote, a Court of Appeals panel decided for the state, essentially saying that documents held by the General Assembly and its offices are not subject to the Open Records Act, which cities, counties and most state agencies are legally bound to follow.

The group contesting the exemption in hopes of making the Legislature and its offices more transparent said it will appeal the case to the Georgia Supreme Court.

The legal fight came after state officials denied records to a libertarian public-interest law group, the Institute for Justice, which is based in Arlington, Va. The institute was looking into the General Assembly's 2012 decision to regulate the practice of music therapy.

Among other things, the group produces reports on how lobbyists for professions often persuade state legislatures to pass licensing and regulation laws to limit competition.

However, once the group sought records on how the law was created, it ran into a roadblock reporters and plenty of Georgia residents have long known about. The General Assembly — which receives about $45 million in taxpayer funding a year and has the ability to regulate the health, taxes and professions of Georgians — and its offices don't have to follow state transparency laws.

A Fulton County judge came to that same conclusion in 2017, throwing out the institute’s lawsuit, citing a 44-year-old court ruling in saying that sunshine laws don’t apply to the General Assembly, its committees and its offices, such as the legislative counsel or budget offices. The group appealed the judge’s decision to the Court of Appeals.

At the Court of Appeals, two of the three judges on the panel concurred with the Fulton judge’s decision to dismiss the case.

“If the General Assembly had wanted to include itself in the set of (state) departments, agencies, or offices subject to the Act, it could have done so expressly,” Appeals Court Judge Stephen S. Goss wrote.

But Chief Judge Christopher J. McFadden dissented, saying the act applied to “every state office,” which should include offices of the General Assembly.

“The General Assembly has the authority to decide whether to subject itself or its offices to the Open Records Act,” he wrote. “The clear and unmistakable language of the statutes before us does subject legislative offices to the Act.”

Institute officials said the ruling “reflects a troubling trend at the local, state and federal levels, as governments and agencies are stonewalling requests from the very citizens, journalists and activist groups that keep an eye on them.”

Dana Berliner, the group’s senior vice president and litigation director, said: “We are obviously disappointed by the decision of the Court of Appeals. Open access to public records is vital in any free society. The purpose of the Open Records Act is to allow people to fully understand how their government operates and how lawmakers and agencies make decisions. Government should not keep secrets about how it governs.

“The people of Georgia deserve access to public records, just as the plain language of their Open Records Act demands.”

The issue has come up frequently in the past, including in 2018, when the General Assembly's counsel told The Atlanta Journal-Constitution that the Legislature didn't have to release any information on sexual harassment complaints, settlements or how cases were handled involving lawmakers or their staffs.

The governor’s office and state agencies have typically complied with such records requests.

House and Senate leaders can release information if they want to, and they often do. For instance, journalists asking to look at reports on how lawmakers spend their expense allowances generally have to file an Open Records Act request to see the documents, but those reports have been made available.

The House and sometimes the Senate put out meeting agendas in advance, and both chambers post their state budget plans on the General Assembly website after they have been approved by their Appropriations committees.

But as the AJC has detailed in the past, the General Assembly has also not been shy about exempting itself from laws or the outcomes of what they do.

Lawmakers in recent years pushed to allow Georgians with licenses to carry guns to take them most anywhere in the state. One of the places they can’t? The Statehouse — which has metal detectors, limited entry points and armed guards.

In 2015, Gov. Nathan Deal and legislative leaders said the state shouldn't have to provide health insurance to part-time school bus drivers and cafeteria workers. But part-time lawmakers are eligible for the State Health Benefit Plan and stay on it after they quit or are defeated, even if they move on to high-paying jobs lobbying former colleagues.

Lawyer-legislators have been heavily criticized for using the state's "legislative leave" law to get court cases delayed, sometimes for years, by claiming they are too busy with their duties to go to court. The AJC and Channel 2 Action News reported earlier this year that House Speaker David Ralston regularly used the leave law to delay cases for his clients. Those reports led to changes in the leave law during the 2019 session.

Lawmakers in the insurance industry and legal profession are exempt from mandatory continuing education. And state law has, for more than 200 years, prohibited lawmakers from being arrested during sessions of the General Assembly or while in its committees, or while lawmakers are traveling to either one.

On the open records exemption, lawmakers have said they don’t want correspondence made public that contains sensitive information from constituents. But that also allows lawmakers to shield the frequent contact they have with lobbyists or other special interests seeking legislation or state funding.

A government accountability group, the Cause of Action Institute, filed a brief in support of the lawsuit, saying residents in 38 states have access to legislative records.