Georgia’s attorney general must aggressively pursue open-government violations
Election season is a potent reminder that Georgia government answers to the people.
Georgia’s Constitution puts it plainly: “All government … originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.”
It also gives us the right to alter or reform our government when needed.
But exercising that right depends on knowing what government is doing — and that depends heavily on the actions of one official: the Georgia attorney general.
In November, Georgians will elect a new attorney general, since incumbent Chris Carr is not seeking reelection.
Laws that make government records public and keep government meetings open ensure that citizens can judge how their money is being spent, know how decisions are being made and see how well government works for them. Those laws, though, have little power without strong enforcement.
Enforcement mechanisms vary across the 50 states and most allow citizens to sue if they can’t get access to records or meetings.
Transparency advocates favor independent boards or ombudsmen that resolve disputes without requiring litigation. In Georgia, citizens can sue, but that can be expensive and difficult. Historically, the attorney general has offered an alternative to private litigation — though how often that tool gets used varies by administration.
How different AGs have used their authority
Attorneys general have helped shape Georgia’s transparency laws since the Open Records and Open Meetings acts took their modern form in the 1960s and early 1970s, issuing opinions that defined how the laws applied. Attorney General Mike Bowers went further, pressing agencies to comply. But a 1989 lawsuit he brought over university records faltered when a judge questioned his authority to bring it.
His successor, Thurbert E. Baker, sought to remove that uncertainty. He pushed lawmakers to give his office enforcement authority over open-government disputes. In 1998, they gave the attorney general power to investigate potential violations and bring civil or criminal enforcement actions. Baker created an informal mediation program to resolve disputes without forcing citizens to sue. The program’s leverage comes from the credible threat behind it.
That pairing of threat and mediation has produced important open-government successes for attorneys general of both parties.
In 2004, Baker’s threat of a lawsuit persuaded the University of Georgia Foundation to open its meetings. In 2006, he won a case preventing the Metro Atlanta Chamber and Central Atlanta Progress from shielding NASCAR Hall of Fame and Super Bowl bid documents.
Amid reporting on the Atlanta Public Schools cheating scandal in 2011, then-Attorney General Sam Olens pressed the district into an agreement pledging compliance with open-government laws — a tool his office used repeatedly. In 2014, he won the maximum $12,000 penalty against Cumming’s mayor for removing a citizen who tried to record a council meeting.
And in 2019, Carr, the current attorney general, secured Georgia’s first criminal Open Records Act conviction against an Atlanta mayor’s office employee found guilty of knowingly and willfully attempting to frustrate access to records.
Carr’s 2019 prosecution made headlines, but his record since has been mixed. After several Sunshine Week announcements citing state and local training and mediation successes, the office appears to have stopped publicizing open-government activity. His open-government page cites negotiated settlements (memorandums of understanding) as a tool to resolve complaints, but the only settlements listed come from Olens’ administration.
Carr has said he cannot mediate citizen disputes with state agencies because he represents them, and the office has said it doesn’t compile or summarize state-agency complaints. That leaves doubt about how the office would identify or take on a state agency clearly violating the law.
Voters should know where the candidates stand
Advocates and citizens have said that the mediation program has become ineffective or unresponsive, and when mediation reaches an impasse, citizens have been told they have to sue themselves if they want a court to review their case.
In a statement in response to a request for comment, Carr’s office said, “he has continued to defend and enforce Georgia’s open-government laws.”
The statement said his office has handled roughly 480 open-government complaints this year. But it also noted that once a dispute comes down to whether records were provided or an exemption applies, the office may close the mediation. The program is “a voluntary public service that is limited in its authority and jurisdiction,” and is only a part of the agency’s many responsibilities, the statement noted.
The statement did not address the agency’s independent statutory authority to bring its own litigation. And that is the power that provides the teeth in Georgia’s open-government laws at both state and local levels — perhaps the most important tool to level the playing field between powerful government agencies and individual citizens.
But the law doesn’t dictate how aggressively to use that power, making it a matter of priority for whoever holds the office.
Voters deserve to know where open-government enforcement ranks among those responsibilities, and whether the new attorney general — be it Republican state Sen. Brian Strickland or Democrat state Rep. Tanya Miller — will use all the authority the Legislature gave the office.
Upholding the promise of Georgia’s Constitution — citizens’ real ownership of their government, transparency into how it works and the power to hold it accountable — depends in no small part on the answer.
Shawn McIntosh is a retired managing editor of investigations and data journalism and former head of standards at The Atlanta Journal-Constitution. She serves on the boards of the Georgia First Amendment Foundation and the National Freedom of Information Coalition.
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