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Henry Herald www.henryherald.com Henry County’s News Source since 1874 50 cents ©2013 SCNI Vol. 42, No. 145

FRIDAY, NOVEMBER 29, 2013

DAILY

FREEDOM OF INFORMATIONSPECIAL EDITION

Open government — It’s the law“Government belongs

to the governed, not the governing.”

McDONOUGH — These words resonate in our newsroom as we work each day to provide local news, features and commentary.

It is our commitment to these principles that guides us as we serve the citizens of Henry County.

This special edition of

the Henry Daily Herald is designed to empower citizens and inform elected officials for the purpose of refining and improving our community.

The Henry Daily Herald believes that open govern-ment is good government.

In this edition, reporters Kelsey Cochran, Rachel Shirey, Heather Middleton, Johnny Jackson, Kathy Jefcoats and Curt Yeomans take a look at government transparency, the Freedom

of Information Act, the practices of local officials and the laws of the state of Georgia.

You will find articles dealing with your access to public documents, your rights to request records and your reasonable ex-pectation of knowing what elected officials are doing with taxpayers dollars.

We have provided expla-nations for how to make an open records request and instructions for how to pro-

ceed if a request is denied.We have cleared up com-

mon misconceptions about executive sessions held by local governmental bodies and explained exactly what the Georgia Open Meetings Act says about the public’s access to the public’s busi-ness.

Public notice require-ments, that must be met by local government, are fully explained as well.

BY JIM [email protected]

— Editor Jim Zachary

“Jim

Zachary

The Henry Daily Herald believes that open govern-ment is good government.”

Citizens have recourse if denied access

All Henry County citizens have a right to know what their government is doing.

Each citizen has the right to ac-cess public records.

The Georgia Sunshine Laws are in place to ensure a citizen can request and receive documents pertaining to their government.

To get documents, citizens can make an Open Records request. The more speci!c the request, the better.

Per the sunshine laws, govern-ments have three business days to honor a request or explain why the documents are unavailable.

If citizens feel they should have access to a denied request there are steps they can take as a remedy.

First step, citizens can make a second more formal request for documents.

Jim Zachary, editor of the Clayton News Daily and Herald Daily Her-ald said it is generally wise to make an informal request !rst. “There is no need to be heavy-handed,” Zach-ary said. “Most people who work in local government of!ces want to do the right thing and will have no problem providing requested docu-ments, but remember, honey almost always works better than vinegar.”

However, he said citizens need to understand that on those occasions when government of!cials deny a request, they should be persistent because, requesting public records should never be viewed as some-thing controversial or out of the ordinary.

“They’re asking for something that belongs to them,” Zachary said. “They should feel like they can just go into a place like city hall and ask.”

If an initial request is denied, citizens can use a more formal route by submitting an Open Records Re-quest either using a form provided by the government agency or writing a letter.

When a local government denies a request they are required — by law — to not only give the reason for the denial but to speci!cally state the code section in state law they are using as the basis for denial.

If the second request is denied and a citizen feels the laws are being violated, they can contact the Geor-gia Attorney General’s of!ce to see what the next step is to obtaining the documents.

The Attorney General’s of!ce has an Open Government Mediation Program in place to help citizens.

“We work with governments to make sure citizens are getting what they ask for,” said Lauren Kane, communications director for the At-

BY HEATHER MIDDLETON

[email protected]

PUBLIC RECORDS

There are times when get-ting a government agency to allow access to public docu-ments can be compared to pulling teeth from a shark’s mouth.

But there are other times when it can be as easy as pie.

A recent records request by the Henry Daily Herald from the city of Stockbridge — over applications for police chief applicants — falls more in the “hard” category. Reporter Kelsey Cochran said the creation of a city police department sent up red "ags almost immediately.

“First, the mayor and coun-cil approved the department with little public discussion and zero public hearings,” said Cochran. “This was such a serious issue that affected all of the citizens on such a personal level, yet they had no say in the matter. We thought that was wrong.”

The red "ags continued to "y when the newspaper began hearing rumors that Stockbridge of!cials pos-

sibly “stacked the deck” in favor of former Henry County deputy police Chief Stoney Mathis, said Cochran. Mayor Mark Alarcon then pulled the appointment from a meeting agenda at the last minute, and Cochran said that is when she decided to pursue an open records request for the names of !nalists and resumes and applications of applicants for the police chief position.

“After the mayor pulled the appointment from a meeting agenda, I !gured the process was already more than far enough along for us to !nd out who was being consid-ered for the job,” she said. “I wanted to !nd the truth in the rumors, and hoped to be able

to debunk them.”The city, however, refused

to release the documents on the grounds that the hiring process wasn’t far enough along for the documents to be made public. However, Cochran said that through her investigation she was able to verify that the city may not have been as transparent in the process as the mayor had claimed.

Although she was able to track down some of the information she was seeking through other sources, Co-chran still needed those docu-ments to support her research. When the city wouldn’t comply, she turned to attorney and open records expert David

Hudson for advice.Eventually, however, she

had to take the extraordinary step of going to Senior Assis-tant Attorney General Stefan Ritter when other efforts to resolve the dispute failed.

“In a word, (it was) dis-heartening,” said Cochran. “The AG’s mediation pro-gram is obviously there for a reason, but taking such formal measures and asking for assis-tance from state-level of!cials is always a last resort. This entire issue could have easily been avoided.

“I always want to be able to, in good faith, believe my open records requests can be answered after a phone call or an informal email,” she added. “Government organi-zations with nothing to hide would never have reacted to this simple request the way Stockbridge did.”

In light of the newspaper’s dogged — and public — ef-forts to shine light on the situation, city of!cials have cooled on the idea of creat-ing a police department and it

BY CURT [email protected]

The Stockbridge City Council mulls over city business in this Aug. 9 file photo. The Henry Daily Herald found itself in a battle with Stockbridge officials over public access to police chief applications and resumes. (Staff Photo: Jim Zachary)

‘Nothing to hide’Transparency battles put citizens !rst

“First, the mayor and council approved the department with little public discus-sion and zero public hearings,” said Co-chran. “This was such a serious issue that affected all of the citizens on such a personal level, yet they had no say in the matter. We thought that was wrong.”

— Reporter Kelsey Cochran

See BATTLES, Page 5A See ACCESS, Page 5A

See LAW, Page 5A

perspectives henryherald.com

J.K. Murphy, Vice President, SCNI [email protected]

Jim Zachary, Editor [email protected].

PAGE A4 FRIDAY, NOVEMBER 29, 2013

our view

Government does not always know best.

In fact, it seldom does.Government cannot be of, by and

for the people unless it’s before the people.

It should never be forgotten that government belongs to the gov-erned, not the governing.

Whether talking about the federal government in Washington, D.C., the General Assembly in Atlanta, the county commission, the school board or city council, government does not know better than the citi-zens it represents.

Those elected to of!ce should never usurp the will of the public or assume they know more about what is right for their community than the public at large.

We do not elect of!cials to think for us.

We elect them to represent us.That is what is meant by the

word “republic,” a representative form of government.

Given a choice between the will of elected of!cials and the will of ordinary citizens, we should always defer to the people.

The people we elect should never be so audacious as to abridge the rights and interests of citizens.

Public service is not autocratic rule.

Being elected to of!ce should not be viewed as being placed in a posi-tion of authority and privilege.

The Declaration of Indepen-dence provides, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

These words are primary to our entire form of government.

All real power belongs to the governed, citizens, and not to the governing, elected of!cials.

We have protections in place, laws, to prevent a governing class from seizing power away from citizens.

The problem, however, is that citizens and the media have become accustomed to looking the other way while of!cials have become accustomed to looking out for themselves.

Then intention of a public servant should never be to simply do what is necessary to get re-elected.

Their intention should always be to adequately, competently and ethically represent the interests of the citizens they are elected to serve. Openness in government

is not a liberal, conservative, Republican, Democrat, inde-pendent, tea party or libertarian issue.

The importance of transpar-ency in local, state and federal government should transcend parties and political ideologies.

Checks and balances provide few checks and little balance when of!cials broker deals behind closed doors and conceal documents that contain impor-tant information that citizens have the right, and often the need, to know.

Local government has the biggest impact in the lives of citizens on a day-to-day basis.

Whether it is in the form of property taxes, sales taxes, personal property taxes, business taxes, state-shared dollars or fed-eral grants, loans and funding, local government is 100 percent taxpayer funded.

The decisions being made, the

monies being spent and the re-cords being kept by city hall, the county commission, the board of education or the utility district all belong to liberals, conservatives, Republicans, Democrats, inde-pendents, tea party volunteers, libertarians and even politically disinterested individuals.

All stakeholders have a stake in open meetings and public records and should care about transparency issues. Bipartisan-ship is like the weather — ev-eryone talks about it, but no one does anything about it.

The difference is that while a person can’t change the weather,

of!cials could choose to work together.

The lack of and need for true government transparency should be a truly bipartisan cause.

We encourage all our local elected of!cials, regardless of party af!liation or ideology, to commit themselves to more openness in government.

Any elected of!cial who truly cares about public service in a real and meaningful way and fully understands what a repre-sentative form of government is all about, should not only cham-pion openness in government, but should be the most effective watchdog, looking out for the public trust.

Sadly, those kinds of elected of!cials are hard to !nd.

We encourage those of!cials who do care and who do under-stand, to become strong advo-cates for transparency on their respective elected body.

— Editor Jim Zachary

Transparency: Not Republican, not Democrat

Why does local govern-ment transparency matter?

Simply speaking, open government is good govern-ment, or at least it is better government.

As we champion open and transparent government in our county, we are not “against” elected of!cials.

Rather, we are “for” citi-zens.

Even when elected of!cials believe they are doing what is in the best interest of citizens, even when their motives are pure and their objectives are sound, even when they are not doing anything wrong, they still must be fully ac-countable to citizens.

Government transparency is an important issue that matters and we will continue to try and explain it in ways that hopefully will eventually resonate with all our elected of!cials.

We are on your side.We want you to get it right.In the end, every thing you

do, and every thing we do, should be all about what is in the best interests of the citizens.

Public service is not pri-vate business.

In private enterprise, a chief executive of!cer or a board of directors must an-swer to their stockholders.

In public service, elected of!cials must answer to their stakeholders — citizens.

Sometimes this can be dif-!cult.

However, just because

something is dif!cult does not mean it is not necessary.

Elected of!cials have a tendency to complain about the media when a lack of accountability or public vis-ibility is highlighted in news coverage or editorials.

They like to say we don’t understand the law.

They like to say they are only doing what they have to do.

They like to say that if we really understood what they were doing behind closed doors that we would not be saying they need to be more transparent.

They are wrong.They may mean well.But, they are wrong.Yes, doing the public’s

business in public may have a downside.

It may compromise some initiative.

It may expose something they don’t want to come to light.

We get that.It still does not make it

right.Public service comes at a

price.Being a public employee

comes at a price.A part of that price is pub-

lic exposure.If an elected of!cial or a

public employee does not like that, want that or hopes to avoid that, then the private sector is their best option.

We encourage elected of-!cials to look at the issue of government transparency as a

citizen and not as an elected of!cial.

Every decision you are making, even decisions about public employees, land deals and lawsuits are decisions that you are only empowered to make by virtue of the fact you have been elected to serve the public.

You are doing the public’s business and the general pub-lic has a right to know about its own business.

The most common mistake that elected of!cials make is that they allow themselves to be told by attorneys that they must do certain pieces of business behind closed doors.

Despite what you have been told, that is not true.

Georgia’s leading authority on the state’s Open Meet-ings Act has said repeatedly there is no law that requires of!cials to go into executive session.

Rather, he has explained, the law allows them to con-vene in executive session, under very speci!c circum-stances.

The law allows it.It doesn’t require it.There is a huge difference.Any elected of!cials who

say they are legally required to conceal public business are simply misinformed.

Perhaps for years, no one has called concealing public documents or over using the executive session privilege into question, so local of-!cials are simply doing busi-ness as usual.

That does not make it right.

Because something has always been done or because a lawyer advises you can legally do it, does not mean in any way that it is what you should be doing or have to do.

There are some city and county governments in Geor-gia that almost never go into executive session.

There are some states in the U.S. that limit executive sessions to the extent that of!cials can only go behind closed doors in the midst of an actual, real, lawsuit for the sole purpose of discussing legal strategy, resulting in a situation where closed doors meetings are very rare.

Call it closed door, call it back room deal making or call it executive session, out of the public eye is out of the public eye and even if what you are doing is acceptable with citizens, when you do it in the dark it breeds suspicion and begs for questioning.

Instead of justifying a long-standing practice, just consider the fact that other cities and counties in Georgia and all jurisdictions in some states do almost every piece of public business in public.

It can be done.It is being done.Why can’t we do it here?We understand it is often

not the easy thing to do.It is, however, always the

right thing to do.— Editor Jim Zachary

Why government transparency matters

Government belongs to the governed

JimZachary

letters to the editor

The Henry Daily Herald encour-ages its readers to comment on public policy and issues that have commu-nity interest. Letters should be brief and address relevant issues, con-cerns or community matters. Personal disputes and consumer complaints will not be considered for publication. Letters may be edited or rejected if they contain potentially libelous state-ments or inappropriate language. A full name and city of residence must be published with each letter. Letter writers must provide their address and a daytime telephone number for verification purposes. Letters to the editor can be submitted by tradi-tional mail to: Henry Daily Herald, P.O. Box 278, McDonough, GA 30253, dropped off at our office at 38 Sloan Street, McDonough or emailed to editor Jim Zachary at [email protected].

FRIDAY, NOVEMBER 29, 2013 5Ahenryherald.com

Access

torney General’s of!ce.However, Kane said the attorney general is

not working on behalf of either the citizen or government.

“We are here to make sure the law is being followed,” Kane said.

The Attorney General’s of!ce will act as a third party, contacting the necessary govern-ment of!ces and informing them of the law.

“Most of the time governments don’t realize they’re in violation of the law,” Kane said.

She said the Attorney General’s of!ce handled more than 300 complaints last year using the mediation program.

“We feel like it works pretty well,” Kane said.

However, if citizens wish to, they can !le a lawsuit at any time in superior court.

There are also times the Attorney Gener-al’s of!ce itself will purse a judicial remedy.

“If there’s an egregious offense or a gov-ernment is refusing to admit wrongdoing, we will take legal action to enforce the law,” Kane said.

Ultimately, “laws should be enforced and people should have access to their govern-ment,” Kane said.

Citizens are also invited to contact their local newspaper when seeking government records.

“We don’t have any more access than citizens, but we’re more familiar with the process,” Zachary said.

To contact the Henry Daily Herald, call 770-957-9161.

Battles

remains to be seen if one will indeed be established.

Cochran said the city has still not complied with the request, but she added that she will likely resubmit the request once Mayor-elect Tim Thomp-son takes of!ce in January.

“I’ve been vocal in my opinion that the only chance the city would have at fairly appointing a deserving candidate for the position would be to begin the hiring process from scratch,” said Cochran. “But, of course, the mayor and council could very well choose to abandon the idea of a police department altogether.”

Herald Editor Jim Zach-ary said, “In the end, this battle was all about the citizens of Stockbridge and it is the citizens who won out. The plans to railroad a city police department and a hand-picked chief before the election were halted and now a new — hopefully more transparent — mayor and city council can move forward includ-ing citizens in the dialogue and vetting candidates in as open a manner as pos-sible.”

During the city election, mayor-elect Thompson, along with each of the oth-er mayor candidates and candidates for city council, adamantly said there was a lack of transparency in Alarcon’s administration.

In pubic forums citizens echoed the same misgiv-ings.

The Henry Daily Her-ald, on its editorial pages, called on citizens to make a change in leadership and use their vote to voice dis-pleasure over the lack of government transparency.

That is exactly what happened in the city elec-tion, with Alarcon coming in a distant fourth place.

“Our efforts were sim-ply to empower citizens and encourage them to take charge of their own government and that is what they did at the polls,” Zachary said.

The police chief issue is not an isolated case of the Daily Herald having to push for information from Stockbridge of!cials. Gov-ernment reporter Rachel Shirey said she too has had to !ght hard to get infor-mation from the city, but she added it’s an excep-tion to the rule in Henry County.

“I would say in the last couple of months, Stockbridge has probably been a little bit more of a challenge because of the

constant battle for open-ness there,” said Shirey.

Shirey recounted an incident where she had to miss a Stockbridge City Council meeting because she was attending a Hamp-ton City Council meeting. She knew Stockbridge council meetings were videotaped, so she tried to obtain a copy of the video to catch up on what she missed.

The city discussed a property off Walt Stephens Road, where Autumn Leaves retirement commu-nity is being built.

She said she was told by Alarcon that she couldn’t have a copy of the video because they !lmed the meeting on a personal video camera instead of a city-owned one.

“I asked, ‘Is this a city-owned camera?’ And the mayor, Mark Alarcon, looked at me and said, ‘I see what you did there. You’re asking me that be-cause you want to ask for that information,’” Shirey said, adding that he replied it was a personal camera while trying to dance around the Open Records Act.

Alarcon never released a copy of the video to the Henry Daily Herald. Dur-ing open records training session for journalists in September, Ritter told a reporter from the newspa-per that if the city has the record, the record is open for public inspection, re-gardless of the equipment it’s on, if it involves city business.

But when governments let the sun shine on public records, there are real bene!ts for residents.

Shirey said that when governments in Henry County have released documents to her, it has helped provide better coverage. However, she added governments are do-ing right by their residents when they comply with requests for records.

“I always include infor-mation from city or county documents because they enhance my stories and I’m usually the only one (outside of government) who has these documents,” said Shirey.

In more cases than not, Shirey said she has found governments in the county have not put up a !ght about releasing documents that elected of!cials have at their disposal when discussing the items in public.

In some cases — such as McDonough — she only had to make a one-time informal request for docu-ments to get a new prec-edent set of having those

records ready and waiting for her at meetings. She said it wasn’t what she expected because she was used to having to push to get documents when she was the education reporter for Clayton News Daily, a sister publication of Henry Daily Herald.

“I was surprised,” said Shirey. “With Mc-Donough, for example, I would walk up to them and talk to (city clerk) Janice Price and I would say, ‘I would like these docu-ments. I would like the public records that they’re looking at, so I can have an idea about what’s going on in these meetings.’

“They didn’t put up a !ght and there was no discussion,” Shirey con-tinued. “She talked about it with the mayor, and let the mayor know that I requested it and now ever since then, every time I go to a city of McDonough meeting, I have a packet waiting for me with all of the documents that the city council members will be looking at.”

She later added, “It’s not digital, but it has every-thing I need.”

Information that Shirey has found in public docu-ments, and used in her stories, has included de-tails of a troubled history for the old McDonough Downtown Development Authority, plans for Henry County of!cials to spend almost $58,000 on median landscaping on Ga. 138 in Stockbridge and even the early details of Stock-bridge’s plans to start its own police department.

Shirey has also been able to report illuminating background information about the Henry County police department and sheriff’s of!ce coming together to develop a joint training center.

And her reporting on the county’s !scal year 2014 budget was helped by the fact that commissioners posted it on their website while it was being consid-ered for approval, she said.

Zachary said, “Ac-cess to public records is valuable because all the information contained in public documents belongs to the public. It is really that simple.”

When governments make records available upfront to members of the media, it reduces the likelihood that a reporter will have to resort to using open records requests to obtain information. That means the information can "ow faster to the public because it can take up to three days to receive docu-ments through an open

records request.“People with nothing

to hide should never act like they have something to hide. It just makes the public suspicious. When a citizen, including the press, asks for a public document we are simply asking for a copy of what already belongs to us,” Zachary said.

One of the reasons why Shirey said it is impor-tant for someone to tell residents what is in these documents, or for elected of!cials to at least have thorough, detailed discus-sions about each agenda item is that citizens some-times get lost trying to follow along.

“They help me out just about every time because they have an issue dis-cussing the information in a way that would make sense to the people in the audience,” said Shirey. “They discuss the infor-mation as if we already know about it, as if we have that information in front of us. In some instances, we do and in some, we don’t.”

One example, she said, is whenever county of!-cials discuss purchases of equipment, such as public safety vehicles or new machines.

“They discuss it as if we’re not present — as if the citizens aren’t present,” said Shirey. “They dis-cuss it as if it’s a business discussion which makes it very hard for an outside party to understand.”

But, on the "ip side, there have been times when of!cials invited so much public dialogue on a subject that public docu-ments weren’t needed to supplement the informa-tion made available during the meeting.

Shirey pointed to one example in Hampton, when of!cials considered whether to use concrete, gravel or pavers to add 21 new parking spaces in their downtown area in May. As the town leaders debated which route to go, Mayor Chris Moore decided to bring the resi-dents in attendance into the discussions.

“We’re here to represent your issues, so if you like pavers, why don’t you raise your hand?” Moore was quoted as asking resi-dents in the May 10 edi-tion of the Daily Herald.

The residents chose to go with the pavers be-cause, after listening to the debate about cost and manageability, they felt it was the easiest option to work with. Shirey said she also felt as if the dialogue between residents and

their elected of!cials provided her with enough information to report on the meeting accurately.

“They discussed items so thoroughly, because they are such a close-knit community, that some-times I didn’t need docu-ments,” said Shirey.

Some elected bodies in Henry County do a good job of being transparent about their dealings, said Shirey.

She pointed to the Hen-ry County commissioners, who put detailed agenda packets online, as an example of a government entity who puts informa-tion out into the public realm before meetings.

Such packets are not uncommon among govern-ment entities. The Univer-sity System of Georgia’s Board of Regents, the State Board of Education and many local school boards who use the Geor-gia School Boards Associ-ation’s eBoard service put detailed agenda packets on their websites prior to meetings.

And Shirey gave props to one city that might come as a surprise in light of recent controversies.

“The city of Stockbridge — even though there are questions about govern-ment transparency — have all of their city documents online,” said Shirey.

But executive sessions are a different animal, and an area where of!cials in Henry County are still lacking in some regards, said Shirey. There are areas where they could be more forthcoming about executive sessions and the newspaper ran several editorials earlier this year calling on elected leaders to do more business in public, open sessions.

Oftentimes when these of!cials come out of executive session, they don’t offer the most en-lightening explanations to residents about why they went behind closed doors to deal with certain busi-ness items.

Shirey said she’s seen that type of behavior be-fore, when she previously covered the Clayton Coun-ty Board of Education.

“Most meetings for most municipalities, whether it’s the county or the cities, will come back and they’ll do the same thing that the Board of Education did in Clayton County. They will say, ‘We have discussed this personnel matter behind closed doors. We’re going to vote on the action that we discussed there’ and vote on it without releas-

ing any information,” she said.

That "ies in contradic-tion to assertions made by Ritter that government agencies must give enough information about the nature of the executive session discussions to let the public understand the issue at hand when they vote.

But, of!cials do get it right sometimes.

Shirey recounted one in-stance where McDonough leaders were forthcom-ing about why they went into an executive session to discussion a litigation issue.

“They were in there for 45 minutes, which is pretty lengthy for the city of Mc-Donough, and they came back and Councilwoman Sandra Vincent said, ‘We’re going to take action on this case’ and she gave me a case number and the basic information I needed to know there was a pending lawsuit,” said Shirey.

“The city of Mc-Donough is the best about that,” she continued. “They will actually give me a little tidbit of what was being discussed. They are the only ones who do that.”

However, try as they might to be open, there are times when of!cials make headlines for the length of an executive session rather than why of!cials went behind closed doors.

In February, the Henry County commission spent nearly two hours discuss-ing what the newspaper reported at the time as constituting “employee-related matters and litiga-tion. Prior to that meeting, Chairman Tommy Smith and District II Commis-sioner Brian Preston had said the county had been threatened with a lawsuit, but no other information was released.

Zachary, who is a longtime open govern-ment advocate and was the founder of the Ten-nessee Transparency Project prior to moving to Georgia said, “The fact you are allowed to do something does not mean you have to. The state allows local leaders to go into executive ses-sion, but it does not say they must. Yes, it makes perfect sense to protect the privacy of employees, but elected officials tend to go too far and discuss far more than they should behind closed doors. Many states do not even allow executive session for personnel issues and land acquisition, so that proves that it can be done out it the open.”

SAMPLE OPEN RECORDS REQUEST

Law

You will find infor-mation about how the court system works and how to obtain basic police reports.

Another commu-nity service provided in this edition is an organizational chart of county government and a comprehensive listing of records custodians through-out local government needed when mak-ing an open records request.

The Henry Daily Herald takes its pub-lic service seriously and is committed to being the eyes and ears of Henry County, providing vibrant coverage of the many positive things hap-pening in our com-munity each day and serving as a govern-ment watchdog and the Fourth Estate of local government.

We hope you find this special edition informative and em-powering.

It is no secret that the topic of closed meetings has resulted in contention between elected officials and advocates of open meetings for years.

Some elected officials tend to debate that execu-tive sessions are neces-sary in some cases, while others argue the informa-tion discussed behind closed doors is still the public’s business.

But when does a privi-lege become abused?

“Georgia executive ses-sion is a little better than what it used to be, but it’s not that much bet-ter,” said Senior Assistant Attorney General Stefan Ritter in an open meet-ings seminar hosted by the Georgia Press Asso-ciation.

In neighboring Clay-ton County in February, the Board of Education Chairwoman Pam Ad-amson told citizens that board members were “restricted” and had to discuss personnel issues in executive session.

“State law says you have to discuss person-nel issues in executive session,” Adamson said. “You cannot do it out here in front of an audi-ence.”

However, according to Georgia’s open meetings law, that’s simply not true.

“A public agency, such as the Clayton County Board of Education, is not required to meet in a closed session,” said David Hudson, an attor-ney considered an expert on the Open Meetings Act. “The specific text of the open meetings law at O.C.G.A. 50-14-3(b) states that ‘executive session shall be permitted for … ’ It does not say

that executive sessions are required or manda-tory.”

However, Adamson said she believed discuss-ing topics such as student issues, employee issues or real estate acquisi-tions in public could have a waterfall effect that would hinder the end result. For instance, discussing student or employee issues publicly could pose privacy issues, and discussing future real estate could raise prices, she suggested.

Hudson went on to explain “an executive session can be convened only by majority vote of the Board or Coun-cil members in a public meeting. Thus if there is not a majority vote to

meet in a closed session, the meeting must place take in the open.”

On the flip side, noth-ing discussed behind closed doors is binding until the issue is dis-closed and voted upon in public.

Government bodies are allowed to vote to close a meeting to discuss a limited range of topics, the most common of which are pending litiga-tion, personnel issues and real estate acquisitions, but they come with strict guidelines that Ritter said are often overlooked.

For example, he said some government entities treat “personnel matters” as an all-inclusive cloak which results in a board erring on the side of cau-

tion instead of on the side of openness.

“Personnel meetings in executive session are limited to two things — discussions among the board, commission, whoever it is, discussions among those members on a specific personnel is-sue, or to interview can-didates for an executive head,” Ritter said, adding that the meetings they have with their employ-ees in executive session are not legal.

He also said govern-ment bodies are not entitled to close a meet-ing to hear evidence on a situation — receiving evidence in a closed meeting is illegal, and is therefore public.

“First they have to

receive the complaint — that’s open,” Ritter ex-plained. “Then they have to receive information regarding the complaint — that’s open. — then they can meet in closed session, but they have to vote on it in an open meeting.”

Georgia’s open meet-ings and open records laws also permit govern-ment agencies to enter executive session to discuss the acquisition or disposal of real estate and to discuss settlements of lawsuits or claims against an agency.

But again, the board is subject to strict guide-lines.

Board members are only permitted to meet privately as a quorum

with their attorney pres-ent to discuss pending litigation, but there must be a formal intent to sue, or an ante litem notice, filed before the board can proceed.

“You have to have a tangible threat of litiga-tion,” Ritter said adding if not, they have no business meeting in executive ses-sion, and the ante litem notice is an open record.

“If they haven’t re-ceived a notice, then it’s not a tangible threat,” he said “no exceptions.”

The elected body can-not go into executive ses-sion just because it thinks it might get sued.

If a government agency has a topic of discussion that meets the criteria, then it is permitted to meet behind closed doors. However, when the board members return, Ritter said they are not permit-ted to cloak all informa-tion from the public.

He said board members are required to state what they’re voting on follow-ing executive session, and when taking a vote, the board must give enough information for the public to identify the topic — just not the discussion.

It is not enough for a board to simply say they will vote on the personnel issue that was discussed in executive session.

And when a personnel issue discussed in execu-tive session has officially closed or been resolved, the personnel records or findings becomes public, Ritter said.

If members of the pub-lic are able to produce evidence that any govern-ment agency violates the law on closed meetings, they are encouraged to call Ritter at the Attorney General’s office at 404-656-7298.

henryherald.com6A FRIDAY, NOVEMBER 29, 2013

Executive session: A right or an abused privilege?BY RACHEL [email protected]

In neighboring Henry County, the Board of Commissioners met behind closed doors last week to discuss person-nel issues, but upon returning did not release any basic information, as required by law, to the public. It was later determined that the issue circled around the Henry County Fire Department. (Staff Photo: Rachel Shirey)


Information is power and it begins with aware-ness.

All government bodies, including those in Henry County, are required by law to inform citizens of their open public meet-ings when the information discussed affects the daily lives of citizens.

They are also required to document their discus-sions through agendas and minutes.

Public NoticeAccording to the Geor-

gia Press Association, “information about govern-ment activities must be accessible in order for the electorate to make well-informed decisions. Public notices in newspapers provide this sort of acces-sibility to citizens who want to know more about government activities.”

And Georgia state law takes their side.

A handbook on the Georgia Sunshine Laws published by Attorney David Hudson says law mandates any regular com-mittee meetings must be posted at least one week in advance and in a conspicu-ous place at the regular meeting place, whether it’s city hall, a county admin-istrative building or board of education building. The notice must also be on the agency’s website.

This way, citizens can be informed and pres-ent at an agency’s public meeting whether it’s local government or any smaller committees, board of edu-cation, library or hospital board meetings.

For example, the city of McDonough posts its meeting and cancellation notices on the front doors of City Hall. It also has a calendar of events that lists the time and date of all meetings such as council

meetings, planning com-mission meetings, historic preservation meetings and all citywide events.

“If they don’t have notice, they don’t have an agenda, that’s illegal,” said Assistant State Attorney Stefan Ritter in an open meetings seminar hosted by the Georgia Press As-sociation.

Before the city of McDonough updated its website this fall, the com-mittee meeting information was a general list of vague times and dates, such as the council will meet the second and third Mondays of each month at 5:30 p.m.

However in some instances, the meetings began at a different time or didn’t happen on the day listed. In July, the general meeting dates happened to fall on the Fourth of July and the meeting was conducted at a different day. The website was never updated.

Ritter said, in the past, the city of McDonough violated the law in terms of notice with their mislead-ing and false meeting start times. He added it could

have been an oversight, but in the case that it was purposefully misleading and hadn’t been updated, then they were breaking the law.

However, the city has since updated its website and this is no longer an issue. Likewise, Henry County, Stockbridge, Hampton and Locust Grove post notices at their respective meeting places and on their websites.

When all else fails, government bodies are also required to inform the legal organ newspaper, the Henry Daily Herald.

Public notice is required to be given to the Herald at least 24 hours in ad-vance for all special called meetings. In the instance of an emergency meeting that would give less than 24 hours public notice, the government agency must contact the legal organ by phone, fax or email.

If this were to occur, the Henry Daily Herald would do its best to get the information out to citizens, whether it’s by posting it on the website and social media pages or publishing

it in the print edition.AgendasOnce a citizen has been

properly, and legally, in-formed that a meeting will occur, they should be able to locate an agenda that lists that meeting’s topics of discussion.

Ritter said the agenda is not required more than two weeks before the meeting, and the agenda has to be published in suf!cient time to let the public know what is going to be covered in that meeting.

McDonough city lead-ers send an email blast to citizens who request it with the agenda attached and, beginning this fall, posts the agenda on the city website. Stockbridge and Henry County of!cials also post their agendas and related city documents to the websites. Locust Grove and Hampton have their agendas available upon request at City Hall.

Citizens can access the Henry County Board of Education’s agenda through the agency’s web-site, however the agenda is known to be posted from as little as one day to 10

minutes prior to the meet-ing.

However, the agenda is not set in stone until approved by the board at the beginning of the meeting. Government agencies are also permit-ted to amend their agendas if it “becomes necessary” during a meeting and with a unanimous vote, but it is not recommended.

Ritter said if the agenda has been manipulated in a way to cause surprise on the people — that’s an issue.

“Surprise, they did not expect it and they cannot defer it — if they meet that two-part test, then they are legally allowed to discuss it that night. Otherwise they should defer the topic,” Ritter said, adding that it is generally abused by most government agencies.

Henry County’s munici-palities are also required to make any supporting documents to an agenda item available to citizens if requested. In the case of the county commission, the city of Stockbridge and the BOE, supporting docu-ments are automatically made available when the agenda is posted to their websites.

MinutesWhen a meeting is in

progress, it is also the responsibility of each committee to document the minutes, or the basic outcome of every agenda item including any closed meetings.

According to Hudson’s Georgia Sunshine Laws Handbook, “The min-utes of a regular meeting become public when ap-proved at the next meeting. A summary of a regular meeting must be available to the public after two business days.”

However, the minutes taken during an executive session are not made pub-lic unless the committee

consents to its release or is ordered to by a judge.

Stockbridge and county of!cials are the most dili-gent about making minutes and minute summaries easily available. The infor-mation is posted on their websites and citizens don’t have to request the infor-mation.

The city of Mc-Donough’s website also has the minutes available for citizens, a change made earlier this fall when the website was revamped. The minutes for meet-ings in Locust Grove and Hampton are, again, avail-able upon request from the city clerk.

A citizen can request the public minutes from Board of Education meetings from the superintendent’s secretary.

The same laws that govern Henry County’s municipalities apply to any “agency,” which is de!ned in state law as every state department, agency, board, bureau, of!ce, commis-sion, public corporation and authority; every coun-ty, municipal corporation, school district or other political subdivision of this state; every city, county, regional, or other authority established pursuant to the laws of this state; and any nonpro!t organization to which there is a direct al-location of tax funds made by the governing body of any agency.

“By giving adequate public notice, sticking to a published agenda and keeping complete and accurate meeting min-utes, elected of!cials can improve local government transparency and better serve the citizens of our county,” said Jim Zachary, editor of the Clayton News Daily and the Henry Daily Herald. “Citizens have every right to expect these three basic protections from local of!cials.”

Government transparency begins with citizen awarenessBY RACHEL [email protected]

All documents pertaining to a government agency are available to the public. In some cases, the documents will need to be requested and in others, they are already made available on the agency’s website. (Staff Photo: Rachel Shirey)

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The Cities:

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Shay [email protected] Henry Pkwy.McDonough GA 30253

*Henry County has an open records request form available at http://www.co.henry.ga.us/HomeP-ageMisc/OpenRecordsRe-quest.shtml.

Henry County resi-dents have myriad resources available to them when it comes to obtaining important information related to the criminal process.

The Georgia First Amendment Foundation, in cooperation with the Georgia Bureau of Inves-tigation, has published a booklet called “Geor-gia Law Enforcement and the Open Records Act,” which offers law enforcement personnel a comprehensive guide to open records and best practices to ensure trans-parency between policing agencies and the general public, as well as the news media.

The 38-page manual has been approved by organizations like the Georgia Association of Chiefs of Police, Geor-

gia Department of Law, Georgia Press Asso-ciation, Georgia Public Safety Training Center, the Georgia State Patrol, Georgia Sheriffs’ Asso-ciation and the Prosecut-ing Attorneys Council of Georgia and encourages members of the law en-forcement community to acquaint themselves with the Georgia Open Re-cords Act, and to use the booklet for guidance.

For example, the pub-lication gives abridged bullet points with attribu-tion to each specific code section that regulates things like the release of accident reports, incident reports and matters in-volving juvenile offend-ers and victims.

Submitting an open re-cords act is easy enough and requires the same oversight in law enforce-ment agencies as any other government entity — citizens can just con-

tact the records custodian at the agency. Usually, particularly in smaller departments, a telephone call or informal email will suffice. Some agen-cies may ask the person making the request to fill out a form.

Members of the news media and the general public alike can also use the guide as a quick-ref-erence tool to understand their rights under the Georgia Open Records Act.

For the most part, the news media has the same rights to public docu-ments as the general pub-lic, but there are a few exemptions to that rule.

For example, while citizens have restricted access to motor vehicle accident reports, the members of the media may obtain copies of accident reports for the purpose of news gather-ing. Otherwise, a records

custodian may ask the individual making the request to complete a “statement of need” which outlines the pur-pose of the request.

Meanwhile, all ini-tial incident reports are public record. There has been some confusion in the past over whether reports involving the par-ticularly vulnerable — juvenile victims, victims of sex crimes, or victims of domestic abuse when no arrest was made — should be released to the public, but no exemption has been added to the state’s Open Records Act to follow that model.

There is, however, often information con-tained within initial inci-dent reports that may be redacted by the agency providing the documents. Personal information, including Social Security numbers, day and month of birth and an indi-

vidual’s mother’s maiden name are all examples of information that can be kept private in the interest of protecting a person’s identity.

Confidential records concerning reports of child abuse, grand jury testimony and classified inmate files are some common documents law enforcement officials handle, but are manda-tory exemptions from public disclosure.

Henry County Police Sgt. Joey Smith and his colleagues in the depart-ment’s Internal Affairs division handle hun-dreds of open records requests each year. As the department’s pub-lic information officer, Smith is involved in day-to-day media rela-tions and often is re-sponsible for determin-ing whether a document is public or private.

The number of reports

fielded by the depart-ment’s Records Division, however, numbers in the thousands, Smith said.

“Some challenges we face are providing infor-mation that may be sensi-tive to a criminal case or personal information that witnesses or vic-tims would not wish the public to view,” he said. “We strive to be as open as possible to accommo-date the public with any information requested, which meets the require-ments of the Act.”

The Georgia First Amendment Foundation publishes its materials on the organization’s website at www.gfaf.org. In addition to the guide for law enforcement offi-cers, booklets that prove useful for citizens and people interested in how the law affects the Geor-gia education system are available in PDF format on the website.

Who exactly are the records custodians?BY CURT [email protected]

Police documents mostly open to publicBY KELSEY [email protected]

Henry Daily HeraldFollow us on Facebook

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Sign up to get Henry Daily Herald breaking news alerts and daily newsletters at

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Public access to courts vital for transparencyDecades before gavel

to gavel coverage of the O.J. Simpson murder trial polarized the country, an Ohio osteopath stood under a media spotlight so intense the U.S. Supreme Court labeled it a carnival.

The press was allowed unprecedented access to jurors in the murder trial of Dr. Sam Sheppard, ac-cused in the 1954 beating death of his pregnant wife, Marilyn. Reporters were allowed access to evidence and to the Sheppard home, and to tape Sheppard being interviewed by police.

The bias against Shep-pard was palpable. One of the Ohio newspapers once ran a front page headline that read, “Why isn’t Sam Sheppard in Jail?”

The coroner’s inquest into Marilyn Sheppard’s death was televised. The coroner, who was not an attorney, questioned Shep-pard for !ve hours without his lawyer present.

The trial judge didn’t sequester jurors or admon-ish them to stay away from media reports on the case. The judge even famously told one reporter on the !rst day of the nine-week trial, “He’s guilty as hell. There’s no question about it.” Not many were sur-prised when Sheppard was convicted.

The media exposure was so egregious and in"u-ential, the U.S. Supreme Court found in 1964 that Sheppard was denied his constitutional right to a fair trial and cited !ve speci!c violations why he should get a second one.

The Sheppard case, which has been studied by legal and journalism schol-ars for more than 50 years, presents a classic ex-

ample of how the media’s !rst amendment right to freedom of the press often clashes with a defendant’s sixth amendment right to a fair trial.

During the time of the Sheppard coverage, media was limited to radio, television and newspapers. However, methods of dis-seminating information have increased to include the Internet with its myriad websites, YouTube and blogs.

According to a 2008 New York Times article, the number of web-based news organizations is ris-ing as traditional news-papers are shrinking or failing altogether. The article stated that publish-ing online costs half what it takes to print traditional papers but online adver-tising is not enough to sustain a newsroom.

Under Georgia law, all courtroom proceedings are deemed open with limited exceptions, and in general, members of the public share the same access to courts that members of the media do. One differ-ence is who can bring in a video or digital camera in order to preserve the

hearings for broadcast to a wider audience. Under the courts’ Uniform Rules, cameras in the courtroom are allowed to be used only by members of the media.

Henry County Chief Magistrate Judge Robert Godwin said his court-rooms are accessible to the public and the media.

“An effort is made to make this court acces-sible to anyone wanting to attend so long as they are not disruptive or interfer-ing with the normal opera-tion of the court,” he said. “I am not aware of any complaints in this regard.”

Godwin said there have been a few cases where cameras were denied ac-cess based solely on being disruptive or interfering with the process.

“On occasion we have had media people show up after court started and want to set up equipment,” he said. “This is disrup-tive and not permitted. The only time I know access was denied to the media was such a case and even then, the people were wel-come, just not the equip-ment,” he said.

Godwin and Henry

County sheriff’s deputies stationed in his courtrooms also enforce decorum.

“We had cameramen in shorts who were not allowed in to the court,” he said. “Their solution was to put on rain pants which was !ne.”

Nearly everyone with a cellphone also has a camera, which could pres-ent issues with surrepti-tious recording. However, Godwin has addressed that, too.

“Cellphone usage is not permitted in the courtroom generally for any purpose,” he said. “It can interfere with the recording equip-ment the court uses as well as being generally disrup-tive.”

Members of the public must pass through a metal detector to get into court and are turned away if they have cellphones or other prohibited items. Most re-turn the items to their cars and go back in without a problem.

Even though Georgia law allows the media to bring in cameras to state and local courtrooms — they are prohibited inside federal courts — a presid-ing judge can deny the

request if he or she !nds the media coverage could impact the defendant’s right to a fair trial.

Godwin addresses cam-era requests as they arise.

“If someone wants to photograph something in court, it would be ad-dressed on a case by case basis,” he said.

A recent U.S. Supreme Court that originated from Georgia, con!rms the public’s right to courtroom access. In Presley v. Geor-gia (2010), a defendant in a drug traf!cking case objected to his uncle being removed from the court-room during jury selection and the high court agreed.

In general, courtrooms cannot be locked during proceedings. Some excep-tions can include testimo-ny from victims protected by the Rape Shield Law and child sex victims.

Access to Juvenile Courts is even more restricted but Georgia legislators started relaxing the laws about 20 years ago. At that time, law-makers said it was OK to open the courts in juvenile cases involving designated felonies.

Designated felonies include a list of about 30 felonies for which the youthful offender is subject to a minimum of one year and a maximum of !ve years in a Youth Development Campus, or what is in reality a youth prison.

A new law that goes into effect in January divides those designated felonies into Class A and Class B offenses. Class A felonies are serious and the of-fender is still subject to a maximum of !ve years, but Class B crimes are lowered to a maximum of 18 months in detention.

Juvenile Court hear-

ings involving offenders who have previously been adjudicated on a felony are also open to the public.

About three years ago, the legislature opened all child deprivation hearings to the public.

Open courtrooms help assure the public and the media that judges are making decisions based on law and not emotions or for personal gain. Sev-eral years ago in Luzerne County, Pa., two juvenile court judges took advan-tage of the con!dential nature of the juvenile sys-tem to create a kickback scheme that netted them millions of dollars.

Called “Kids for Cash,” the scheme involved the judges !nding juveniles guilty of offenses without bene!t of counsel and placing them in one of two private, for-pro!t juvenile facilities.

As a result of the inves-tigation, juvenile offenders who appeared before the two judges between 2003 and 2008 had their adju-dications of guilt vacated and records expunged.

The two judges were convicted. One got 28 years in federal prison; the other, 17-and-a-half years.

While documents !led in magistrate, state and su-perior courts are accessible to the public, judges have the authority to seal certain documents. Those exclu-sions can include !lings that contain trade secrets, psychological evaluations, Department of Family and Children Services records, Temporary Protective Orders, documents that contain personal !nancial information or Social Security numbers.

Records sealed during criminal proceedings are often opened after the case is resolved.

BY KATHY [email protected]

Henry County Magistrate Court Chief Judge Robert Godwin presides over a first pre-issuance hearing at the Henry County Jail. (Staff Photo: Kathy Jefcoats)


THE ORGANIZATIONAL CHART FOR HENRY COUNTY GOVERNMENT

(Special Photo)

THE ORGANIZATIONAL CHART FOR HENRY COUNTY PUBLIC SCHOOLS

(Special Photo)

Personnel, school information deemed public recordAccess to meetings and

records for the average citizen is much broader than they may think.

That is the estimation of school of!cials in Henry and Clayton counties. Political !gures, attorneys and news reporters are not the only people with ac-cess to information under the Open Records Act, which affords residents rights to a wealth of infor-mation about government and public documents and institutions.

Charles White is records custodian for Clayton County Public

Schools. Nicole Holcomb is compliance coordinator and records custodian for Henry County Schools.

Both said it is not hard for the average person to get access to information about their neighbor-hood schools and school district.

Residents have access to all regular and special called meetings of gov-erning bodies, including school boards.

White said there is a range of material consid-ered public record such as emails, documents, contracts and evaluation records. Conversely, there are documents that are not public record, including

student records, medical records, certain bene!ts information and job refer-ences information.

Holcomb said some school records already exist in the public forum while some records are requested directly from her of!ce. But other records can be obtained from administrators at the school level.

“Those are routine re-quests that go to schools,” said Holcomb.

For example, she said a parent asking for his or her child’s educational records is considered a routine request, and it often does not require a formal written letter, just

proof of identi!cation.Records requests

handled out of the central administrative of!ces are typically more formal requests.

“We try to be a custom-er-friendly central of!ce,” said Holcomb. “We have three days to respond to a records request (by letter notifying a person of the progress).”

Holcomb and White both said they have experienced times when requests have been made for documents that do not exist.

“The district is not required to create a docu-ment that doesn’t current-ly exist,” said White.

He said the district is not allowed to provide certain information such as personal addresses, phone numbers and Social Security numbers, which all would be redacted from the public view.

Individuals who work for the district or attend school in the district have open access to their own records.

White said personnel !les are among those most requested by former employees, media and at-torneys.

He said that most records are available to citizens with minimal red tape. But occasionally requests are complex and

require a little more work.“We do request that

people put it in writing so that we give them what they ask for,” said White.

“It’s for clari!cation purposes,” explained Holcomb, “so that I can make sure I’m thoroughly reviewing what the person requested, and I’m actu-ally getting exactly what they requested.”

Clayton County resi-dents can call White at 770-433-2700 ext. 700133. His of!ce is at 1058 Fifth Ave. in Jones-boro. Henry County resi-dents can call Holcomb at 770-957-6601. Her of!ce is at 33 N. Zack Hinton Parkway in Stockbridge.

BY JOHNNY [email protected]

Sign up to get Henry Daily Herald breaking news alerts and daily newsletters at

www.henryherald.com/alerts/manage.


Georgia relaxes access to Juvenile CourtNews reporters know the

restrictions where juvenile offenders are concerned — they can’t be identi!ed be-cause of their ages and most hearings are off-limits.

The theory behind the con!dentiality was that juve-niles — in Georgia, anyone 16 or younger is a juvenile — sometimes do foolish things that shouldn’t be held against them as adults.

However, Georgia has loosened those restrictions in recent years and that relaxation of the law means greater access for the media and the public.

Juvenile Court Chief Judge Steve Teske is known through-out Georgia and the nation for his innovative approaches to juvenile justice. Teske said the state started relaxing the laws regarding juvenile offenders about 20 years ago.

“Georgia has relaxed the con!dentiality of juvenile cases over the last 20 years, beginning with opening des-ignated felony proceedings to the public,” said Teske.

Designated felonies include a list of about 30 felonies for which the youthful offender is subject to a minimum of one year and a maximum of !ve years in a Youth Development Campus, or what is in reality a youth prison.

A new law that goes into effect in January divides those designated felonies into Class A and Class B offenses.

“Class A felonies are seri-ous and the offender is still subject to a maximum of !ve years, but Class B crimes are lowered to a maximum of 18 months in detention,” Teske said.

Juvenile Court hearings involving offenders who have previously been adjudicated on a felony are also open to the public.

About three years ago, the legislature opened all child

deprivation hearings to the public. Teske was part of the process, testifying in Atlanta in support of public access. It wasn’t an easy passage.

“The bill as written did not protect the identity of kids and I argued to change the bill to allow judges to prohibit the publication of their identities,” he said. “The senator who sponsored the bill, Republican state Sen. John Wiles from Cobb, would not consent to my request during the judiciary committee meeting.”

Teske sought individual support from state repre-sentatives and got it from Atlanta Democrat Stacey Abrams. The bill passed the House and the change was consented to in conference committee.

“She made a motion to amend the bill adding language authorizing Juvenile Court judges to protect the identity of abused and neglected children while pre-serving the right of citizens to know what is going on in these proceedings,” he said.

Wiles didn’t !ght the amendment for fear of losing the entire bill, said Teske.

Lastly, presiding judges have the authority to open any hearing that is not other-wise open.

“Of course, there must be good cause and steps taken to protect the con!dentiality of the youth,” he said. “Typically, cases receiving high media pro!le in which the public has an interest are made open, but names and pictures of the child and parents are prohibited.”

A recent example of this was case in a neighboring county where Teske presides involving a 14-year-old high school student who made three bomb threats against the school in February 2012.

Teske approved the pres-ence of news reporters during the teen’s appearance in Juvenile Court. He ordered the teen to be evaluated because of the incident and incidents in the child’s native Philadelphia, but not detained in YDC.

Teske said he strives to seek balance, not absolute

restriction of the public and media from Juvenile Court.

“While I de!nitely protect the identity of youth, I am a strong advocate for balanc-ing this con!dentiality with the interest of the public to know what is going on in the juvenile courts of this state,” he said.

Teske said there are ways to let the public know what is happening without compro-mising the interest of the offender to his or her identity con!dential.

“These con!dentiality laws are not intended to conduct ‘Star Chamber’-like pro-ceedings,” he said. “When Juvenile Court judges are al-lowed to conduct proceedings absent some form of observa-tion and critique, there is a risk for abuse.”

Teske was personally involved in the aftermath of a Juvenile Court scandal in Lu-zerne County, Pa., where two judges took advantage of the con!dentiality laws to create a system of kickbacks that net-ted them millions of dollars.

Called “Kids for Cash,” the

scheme involved the judges !nding juveniles guilty of offenses without bene!t of counsel and placing them in one of two private, for-pro!t juvenile facilities.

As a result of the inves-tigation, juvenile offenders who appeared before the two judges between 2003 and 2008 had their adjudications of guilt vacated and records expunged.

The two judges were convicted. One got 28 years in federal prison; the other, 17-and-a-half years.

“I was asked to go there to testify in favor of new laws to help prevent this abuse from

happening again,” he said. “Also, a book was written about it and I was asked to provide a blurb describing it.”

Teske’s advocacy for juvenile justice reform has garnered him state and national attention. Gov. Nathan Deal called him a “revolutionary” in July when he recommended Teske for a Henry Toll Fellowship.

Teske’s approach to juve-nile justice has become a pilot program for courts across the country. In almost 10 years, the number of children ar-rested in neighboring Clayton County schools has dropped 83 percent.

BY KATHY [email protected]

NOTICEMonday, December 9 - 6:00 pm - City Hall The Locust Grove Historic Preservation Commission will host a public meeting regarding the possibility of a listing on the National Register of Historic Places. All those with questions are encouraged to attend.

Public Hearing Notice - RezoningCity of Locust GroveDecember 16, 2013

7:00 PMLocust Grove City Hall

3644 Highway 42 South Locust Grove, GA 30248

Notice is hereby given as required by Chapter 66 of Title 36 of the Of!cial Code of Georgia Annotated (“Zoning Procedures Law”) and Section 17.04 of the Code of Ordinances, City of Locust Grove, Georgia, that the Locust Grove City Council, on Monday, December 16,2013 at 7:00 PM, will conduct a public hearing for the purpose of the following:

RezoningRZ-13-12-01 Gordon Cook of Locust Grove, Georgia requests a rezoning from C-2 (general commercial) to C-3 (heavy commercial) for property located at 5019-5021 Bill

Gardner Parkway in Land Lot 200 of the 2nd District. The property consists of approximately 0.74 acres. The request is to allow for the sale of vehicles onsite.

The public hearing will be held in the Locust Grove City Hall, located at 3644 Highway 42 South.

X

SANTA TOY DROP MCDONOUGH LOCATIONS:

Newsole Running 1315 McDonough Pkwy McDonough GA 30253

678.432.1243

Willett Honda South 6871 Mt Zion Blvd Morrow, GA 30260

770.968.1500

Alpha Tire 391 Hampton Rd

McDonough, GA 30253 678.432.2718

Heartland Total Body 550 Eagles Landing Pkwy #204, Stockbridge, GA 30281

770.692.9760

ATA Black Belt Academy 1332 McDonough Place McDonough GA 30253

770.320.7206


GPA Legal Hotline gives out expert advice

The GPA Legal Hotline provides Georgia Press Association-member newspapers with expert legal advice and answers to questions about legal issues in most areas of law affecting newspapers.

David Hudson is GPA’s general counsel and a partner in the Augusta law !rm of Hull Barrett.

Kathy Bradford, Advance, Vidalia: At the Montgomery County Board of Education meet-ings, a blanket reason is given each time the board goes into closed session.

The chairman of the board reads verbatim: “To discuss or deliberate upon the appointment, employment, compensa-tion, hiring, disciplinary action or dismissal, or period evaluation or rat-ing of a public of!cer or employee (OCGA-50- 14-3(6)) and; To consult and meet with legal counsel pertaining to pending or potential litigation, settle-ment, claims, administra-tive proceedings, or other judicial actions brought or to be brought by or against the school district or an of!cer or employee or in which the of!cer or employee may be directly involved; (O.C.G.A. 50-14-2).”

He never gives a con-cise reason for closed ses-sion, so the school super-intendent usually looks at me and mouths why there needs to be such a session. However, last night, the chairman simply asked for a motion to go into closed session without reading the usual blanket state-ment or giving any reason before he asked for a mo-tion and a second.

Two of the board mem-bers did as asked. When no reason was given, I asked for a speci!c purpose and was met with hostility by the chairman. Those actions aside, can a board chairman ask for a closed session before announcing what the ses-sion is for, and if so, can the board members be accountable, too, for any questionable actions that may occur behind closed doors?

David Hudson, GPA General Coun-sel: O.C.G.A. 50-14-4 provides that when any meeting is closed to the public, “the speci!c reason for such closure shall be entered upon the of!cial minutes.” It also requires a majority vote of a quorum to meet in a closed session, and the minutes must re"ect those who voted for closure. In my view, merely reciting at each meeting a standard formula that covers all of the reasons why a meeting could be closed does not comply with the require-ments of this statute. Whoever is making the motion to close knows why he or she is doing so, and the speci!c reason/category for the closed meeting should be stated, voted on and entered in the minutes.

In the latter scenario you describe where there was no reason stated, this was clearly in violation of 50-14-4.

Something else you need to keep in mind is that 50-14-4(b) (1) requires the person lead-ing the closed session to !le with the minutes an af!davit swearing that the closed meeting was devoted to matters within exceptions provided by law “and identifying the speci!c relevant excep-tion.” This is another re-quirement that the speci!c reason be given.

Jessica Loeding, The Daily Tribune News, Cartersville: A local city

council held a closed ses-sion for personnel matters. While there is some doubt about the topic discussed, the question becomes: Is a city clerk required to keep minutes in closed sessions?

One council member has asked in the past that the closed sessions include only council members, and the session last night did not include anyone keeping minutes. Is the city required to do so? Would any action taken be affected if they did not?

Hudson: The amend-ments to the Open Meetings Act require that minutes be kept of closed-session meetings. O.C.G.A. 50-14-1(e). However these minutes are not public unless the agency consents or a court orders disclosure.

Kathy Jefcoats, Clay-ton News Daily, Jones-boro: I have petitioned the city of Forest Park for documents, etc., pertain-ing to a settlement made between the city and a former councilwoman. She appeared at a recent meeting to announce she’d settled with the city for $35,000 and federal court documents back that up. However, the mayor is alleging that no one authorized the settlement. I made an open records request. I am expecting my answer to be attorney- client privilege. Can they do that? How do I proceed if my request is denied?

Hudson: There have been two Georgia cases (one federal and one Superior Court) that have held that settle-ment documents must be provided under the Open Records Act by a local government. The settlement documents are not protected by any attorney-client privilege as they are between the city and the opposing party. Documents protected by the attorney-client privi-lege are only those that are held by one side of a case and not disclosed to anyone else.

Make your request, and it should be granted.

Alan Mauldin, The Moultrie Observer: After repeated verbal requests to a law enforcement agency about their reports not in-cluding the names of juvenile victims, I’m going to make a public-records re-quest for a speci!c report and request in writing that all future reports include this information.

It is my understand-ing that law enforcement agencies cannot with-hold the names of juve-niles who are victims of crimes. I would like to get a statement on the topic that I can include in that request.

Hudson: There is no provision of Georgia law that exempts the names of juveniles — whether suspected offenders or victims — from initial incident or arrest reports that are required to be made public upon request.

In addition to no exemption being stated in the law that allows the withholding of those names, law enforcement agencies should refer to the publication “A Law Enforcement Of!cers Guide to Open Records in Georgia.” This is a prod-uct of the Georgia Depart-ment of Law, the Georgia Association of Chiefs of Police, the GBI and the Georgia Sheriffs’ Asso-ciation. The requirement of disclosure of juvenile victim names is addressed at page 19 and states that the names should be disclosed. A copy of the booklet is available on the GFAF website, www.gfaf.org.

Elizabeth Billips, The True Citizen, Waynes-

boro: The Waynesboro Police Department has recently gone to a new format for its incident reports. Of!cers told me (off the record) it is to keep bad stories out of the media. Virtually no information is provided. Are there certain items that must be listed in an incident report or is it simply at the department’s discretion?

Hudson: My guess is that these “sanitized” reports are not the only in-cident reports made by the police. And even if they call the other documents a supplement or addition to the initial incident report, these are public records.

The !rst step would be to !nd out what else is completed by the police department — if they are like every other police department, there is more information in some-thing else that is initially completed and put in their records. And such docu-ments or computer entries are public.

Mitch Sneed, Douglas County Sentinel, Doug-lasville: Recently as part of another investigation, we made a request for the emails of a county commissioner. In those emails, we found more than 20 emailed requests for this commissioner to give approval by email of purchase orders.

When I discovered this I inquired and was told that on matters of more than $25,000 they require the “approval” of at least three commissioners and that approval was given via email response. Three would be a quorum. I have read the open meetings handbook and saw this passage: “Email commu-nication among members of a board of commis-sioners does not create a meeting subject to the open meetings law. How-ever, emails are subject to disclosure under the open records law. The exclu-sions above do not apply if it can be shown that the primary purpose of the gathering or gatherings is to evade or avoid the re-quirements for conducting a meeting while discuss-ing or conducting of!cial business.”

In your opinion, do these emails constitute of!cial business? Also, is the practice of three com-missioners giving approv-al via email essentially a vote that should take place in an open meeting? Does this violate the open meet-ings law and what should be our next step?

Hudson: The county commission doing busi-ness on the basis of emails is fraught with illegalities and peril for all involved.

The county cannot take binding legal action without a vote in a prop-erly noticed and open-to-the-public meeting. This might be different if, un-der the county ordinances, purchasing approval at a certain dollar amount and below has been vested in the chairman or county manager or some other employee. But except for an action of that nature, anyone doing business with the county is taking a risk that proper and bind-ing contractual authority is missing.

In fact there is a body of law that holds that a county can only be bound by a proper vote that is recorded in the minutes of the county commission.

For most violations of the open meetings law, an action can be !led to set aside conduct of the county in violation of the act, but the action must be !led within 90 days of when the illegal conduct was discovered.

As for steps that the newspaper can take, you can certainly expose the

matter in news articles and editorialize about the violations of the act. If the county, for some reason, does not change its practices, then you can set forth the circumstances and present them to the attorney general’s of!ce for its review and advice to the county commission. The last alternative avail-able is that the newspaper or any citizen can !le suit for the violations and recover statutory penalties and attorney’s fees.

Larry L. Stanford, The Thomaston Times: Thomaston and Upson County have been arguing about the Local Option Sales Tax (LOST) and service delivery for more than a year now. Last year, Thomaston sued Upson County for violation of the Open Records Act when Upson County failed to provide all the tax data the city requested. The county !nally provided the information.

The LOST negotiations went through all the stag-es — negotiation, media-tion, and were !nally sent to Senior Judge Stephen Boswell for a decision. But the city and county attorneys got together and told Boswell they felt they could come up with an agreement, so they have been working since last April and !nally have a draft proposal ready.

Two questions:1. The Upson County

Board of Commissioners went into closed session Tuesday night, and again at a called meeting Friday morning, to discuss the draft proposal, claiming potential litigation. Would Boswell making the !nal decision if the proposal isn’t agreed upon be considered the potential litigation?

2. The board said Friday that it planned on meeting with the city council Tues-day before the council’s regular meeting. Can two governing bodies meet-ing jointly claim potential litigation and close the meeting?

Hudson: The county commissioners would be entitled to discuss aspects of the litigation, even un-der the circumstances you describe, in a closed ses-sion. This is premised on, of course, that there was a properly noticed open meeting and a vote taken by the majority to meet in the closed session.

In regard to the pro-posed joint meeting, there would be no exception that allows that to take place in closed session. The litigation exception that allows closed meet-ings is speci!cally to allow con!dential consul-tations with the agency’s attorney about pending or potential litigation. This is to preserve the attorney-client privilege for the agency. But once outsiders are admitted to the meet-ing, in this instance, the city council, there is no longer privileged attorney-client communication taking place, and the legal justi!cation to allow a closed meeting would no longer exist.

Dub Joiner, The News Observer, Blue Ridge: What is the code sec-tion in the law regarding photographers at crime or accidents scenes? We have had a couple incidents lately when law enforce-ment and !re department personnel have said we could not take pictures at an accident and a sui-cide scene, even from a distance.

Hudson: There is no statute that establishes the right of journalists to be present at accident or crime scenes. It is a prin-ciple of First Amendment law that is established by court decisions across the country. They can be

summed up as follows: Anywhere that a member of the public has a right to be, journalists can be there also.

This means that of!cials can cordon off ingress and egress for emergency vehicles, and can cordon off crime scenes to pre-serve evidence. However, from places outside the cordoned areas, journal-ists are entitled to conduct interviews, and photogra-phers are entitled to take pictures.

Typical places where the public and journalists have the right to be are public sidewalks, publicly owned rights of way to streets and highways, and private property that is not posted or where the owner does not direct the journalists to leave.

Jim Healy, Statesboro Herald: Are the bids submitted to the city of Statesboro by insurance carriers to provide insur-ance coverage subject to open records law? Are the grades given to each com-pany and the accompany-ing paperwork subject to open records law?

Hudson: O.C.G.A. 50-18- 72(a)(10) makes bids and cost estimates closed until a contract is awarded or the agency takes a vote regarding the bid or proposal.

Kathy Bradford, The Advance, Vidalia: Can a board of education change its regular monthly meeting schedule without notifying the media or public? The Montgomery County Board of Educa-tion approved its monthly meetings to be the third Monday of each month at 7 p.m. during Day-light Saving Time, and 6 p.m. Eastern Standard Time. Less than an hour before the latest meeting was scheduled to start, I received a phone call from a reporter at another newspaper that covers the meeting, who told me she happened to see on the BOE’s webpage that the meeting had been changed to the next week. None of the local media outlets (two newspapers and one radio station) were noti-!ed by the superintendent or a designee.

Hudson: A meeting place and time can be changed. For the media to receive notice, some steps have to be taken in advance. For newspapers published less than four times weekly, O.C.G.A 50-14-1(d) provides that notice has to be given, in addition to posting at the meeting place, to media only where there has been a “written request from any local broadcast or print media outlet whose place of business and physical facilities are located in the county.”

If you have not done so, you should give writ-ten notice now to every local government entity, county, city, authorities and school boards that if a meeting is held at other than the regular time and place, you request notice be given to the newspaper as required in 50-14-1(d) by telephone call, or by fax or email. You would, of course, provide the fax number and the email ad-dress.

Otis Brumby III, Marietta Daily Journal: I would expect to see a con!dentiality notice at the bottom of one of your emails. However, when I got an email from the mayor of Kennesaw this morning, I was surprised to see a con!dentiality no-tice at the end. It is from his city email address. Is this unusual?

I’m assuming it would not be applicable if we !led an open records request of emails on a particular topic that was not an exception under

Georgia law.Hudson: The dis-

claimer by the mayor has no effect on whether an email is an open record and whether it may be disseminated. I guess he is free to put the language at the bottom of the email — he probably saw it on an email to him at some point — but it cannot trump the Open Records Act, and there is no legal “privilege” that applies to communications to and from a public of!cial such as an email.

Eric Curl, Savannah Morning News: The city of Savannah argues that the land purchases and subsequent contracts made in 2006 and 2007 for Westside development were legally approved in executive session. They were never voted on in regular session, however. I was under the impres-sion that property acquisi-tions could be negotiated in executive session, but eventually had to be ap-proved in open session. Since those purchases, the city has adopted a new policy in which the con-tracts are approved during the regular meeting.

Hudson: Before the amendment of the Open Meetings Act in 2012, all that could be done in closed session regarding real estate was to “dis-cuss” real estate acquisi-tions. All votes had to be in a public meeting. 50-14-3(4).

The new law at 50-14-3(b) (1) allows discus-sions and nonbinding votes in a closed meeting. The transaction is not binding until voted on in an open meeting.

Mark Berryman, The Elberton Star: Our local hospital authority, a self-perpetuating board with a couple of exceptions, went behind closed doors to “discuss a prospective member’s credentials” before voting to accept the candidate as a mem-ber of the board. In our view, this does not fall within the scope of the exceptions for a closed-door session (litigation, personnel, real estate and, of course, competitive advantage).

Also, the hospital has formed an af!liation with an area hospital (AnMed) and a representative from that hospital regularly attends the closed-door sessions. Is that permis-sible?

Hudson: O.C.G.A. 50-14- 3(b)(2) provides among other things as follows: “Meetings by an agency to discuss or take action on the !lling of a vacancy in the member-ship of the agency itself shall at all times be open to the public as provided in this chapter.” Thus what you describe was an impermissible closed meeting. The entirety of agency discussions regarding the !lling of a spot on the board itself should have been open to the public.

Now that the horse is out of the barn and they have conducted the illegal closed meeting, you will want to make an open re-cords request for all docu-ments that were received or generated by the board in connection with the !ll-ing of the position.

As to the participation in closed meetings by a representative of AnMed, it would likely defeat the attorney-client privi-lege that allows closed meetings for discussion of pending or proposed claims of litigation with agency counsel. For other types of closed meetings, as long as the person did not provide evidence or argument on the issues (other than real estate), the person could remain present.

BY DAVID HUDSON, GENERAL COUNSELGEORGIA PRESSASSOCIATION

Freedom of Information - Henry Daily Herald

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