Georgia First Amendment Foundation

SPRING 2006 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

Georgia starts talking about putting open government in its constitution

By Tom Bennett

Lilburn, Ga., March 10, 2006 -- Twenty-one Democrats in the General Assembly have signed resolutions this year calling for open government – already provided for in the Attorney general’s opinions and rulings, in case law and in statutes -- to now become a part of the Georgia Constitution.

This move by the minority party threatens to take the issue away from the Republicans. It happens to be an election year, and the GOP members led by Gov. Sonny Perdue could be called upon to keep an old promise. When out of power before 2001, they vowed to anyone who would listen that once in control of the capitol, they would open up the government.

Minority members signing five resolutions make up nine percent of the General Assembly. Their efforts have gotten a reading in the House and a committee assignment in the Senate. The crossover deadline for bills to clear one house to the other and thus stay in consideration is hours away. So 2006 was a first step. However, for a state that had no sunshine title until 25 years ago, and only ratified the Bill of Rights on its 150th anniversary, this year’s action is historic.

The co-sponsors include some of the most powerful members of the minority party. Their ranks are female and male, and they hail from large cities and small towns. They represent citizens in every part of the state, from as far north as Blairsville and as far south as Valdosta.

The 12 state representatives named on one resolution or the other, or both, are:

Carolyn Huguley of Columbus, the minority whip; Mike Jacobs of Atlanta; Charles Jenkins of Blairsville; Terry Johnson of Marietta; Pedro Marin of Duluth; Nan Orrock of Atlanta, minority caucus vice-chair; Dubose Porter of Dublin, minority leader; Alan Powell of Hartwell; Calvin Smyre of Columbus, minority caucus chairman; Rob Teilhet of Smyrna; Brian Thomas of Lilburn; and Don Wix of Mableton.

The nine state senators are:

David Adelman of Decatur, the minority whip; Robert Brown of Macon, minority leader; Vincent Fort of Atlanta; Tim Golden of Valdosta, minority caucus chairman; Emanuel Jones of Decatur; Valencia Seay of Riverdale; Doug Stoner of Smyrna; Horacena Tate of Atlanta; and Regina Thomas of Savannah.

OUT OF POWER BUT STILL INFLUENTIAL

The lectern of the Weltner freedom of information banquet, sponsored each year by the Georgia First Amendment Foundation, is becoming the pulpit for change in Georgia. This year, attorney and former Gov. Roy Barnes, a Democrat, used his appearance as guest speaker Jan. 28 to challenge the General Assembly.

"I believe if we can amend the Constitution of Georgia to protect hunting and fishing when I didn’t even know they were under attack, we can amend the Constitution to assure that the basic right of the people to have access to the dealings of their government should be included, and I don’t think it should be complicated," Barnes said. "Here is my suggestion:

" ‘All records and meetings of any government, authority or private corporation performing a public purpose shall be open and available to the people. No exception to this requirement shall be allowed unless adopted by a two-thirds vote of both houses of the General Assembly and approved by the governor.’

"It sounds pretty simple to me. So to my former colleagues in the General Assembly, do something worthwhile this year: Let openness and transparency reign, and history shall smile favorably on you."

A resolution in each house closely tracks the Barnes draft. Another also has been introduced. This one is not so simple. I asked former Gov. Barnes if it concerns him.

"No, I am not concerned," Barnes said. "It is a few words longer. It was necessary to get it in the right order to fit in the Constitution."

Resolutions must pass the house and senate by two-thirds vote, then be ratified by the voters, according to David Hudson, counsel for the Georgia Press Association and a GFAF board member.

PATH TO A CONSTITUTIONAL PROVISION

The vast colony stretching from the Atlantic Ocean to the Mississippi River came into being as a state amid an awful scandal. It shocked Americans during the Washington, Adams and Jefferson administrations. The Yazoo Land Fraud reached its height in 1795. Speculators in land in Georgia bribed the state’s politicians, according to the Carl Vinson Institute of Government at the University of Georgia.

Dr. Carolyn Carlson is a Georgia state political scientist and former AP reporter. She has suggested that the Yazoo Land Fraud echoes in Georgia Chief Justice Charles Weltner’s 1992 opinion, Davis v. City of Macon. Yazoo is a shame. It is a part of the state’s soul, a reminder of how corrupt Georgia can become again without transparency.

"This is the last appeal in which I will participate as a member of the Supreme Court of Georgia," Weltner wrote.

"Over the past decade, as I see it, our court has breathed life into some old words that have lain dormant within our constitution for most of their century-old existence. The words are:

" 'Public officers are the trustees and servants of the people and are at all times amenable to them.' (Constitution of Georgia of 1983, Art. I, Sec. II, Par. I.)

"We have established that this is no empty phrase, but an obligation that is enforceable in a court of law. Public men and women, above all others, must be of good faith. Neither facile excuse nor clever dissimulation can serve in the stead of duty -- faithfully performed.

"Because public men and women are amenable 'at all times' to the people, they must conduct the public's business out in the open."

I asked Roy Barnes about that. He chaired a constitutional revision commission and led in codifying Title 50 with our sunshine laws. He wrote sunshine statutory law as a legislator for 24 years, and served as governor.

"It is true that the Yazoo Land Fraud had a great impact on our present Constitution," Barnes said. "Requiring only one subject matter, and reading a bill three times, are all part of that legacy. I cannot trace, however, the ‘amenable to the people’ clause to the Fraud, but it is a reasonable assumption."

The idea of a constitutional provision for open government "did not come up during the (work on the) 1983 Constitution," Barnes said. "Remember, we were just beginning our quest for Open Records and Meetings at that time. I greatly regret I did not think of it."

Georgia never has had a ballot initiative on FOI in the Georgia Constitution, Barnes confirmed.

During the dark Jim Crow era, Georgia was one of a handful of states that never had ratified the Bill of Rights. It did so hurriedly in 1939 before a 150th anniversary celebration of the enactment of the first 10 amendments to the U.S. Constitution. Sen. J.E. Brooks of Camilla sponsored Georgia’s bill to ratify, and it passed.

An Open Records Act, thin as gruel, became law in 1959. It needed the shelf-full of case law that the state’s media bar has fought into being before the state Supreme Court and Court of Appeals. The first year that we can find an Open Meetings Act or words in effect is 1981, with its historic addition of Title 50 led by Barnes.

ROY BARNES’ PROPOSAL FOR CONSTITUTIONAL AMENDMENT

"All records and meetings of any government, authority or private corporation performing a public purpose shall be open and available to the people. No exception to this requirement shall be allowed unless adopted by a two-thirds vote of both houses of the General Assembly and approved by the governor."

HOUSE RESOLUTION 411 OF 2006

791 words

Sponsored by Dubose Porter of 143rd District, Pedro Marin of 96th, Carolyn Huguley of 133rd, Nan Orrock of 58th, Calvin Smyre of 132nd and Roger Bruce of 64th. "Article I, Section I of the Constitution is amended by redesignating Paragraph XXVIII as Paragraph XXIX and inserting a new Paragraph XXVIII to read as follows: "Paragraph XXVIII. Official records maintained by or on behalf of state or local government available for public inspection and copying; state and local government meetings open to the public. (a) Except with respect to records or portions thereof exempted by general law pursuant to this Paragraph or otherwise specifically made confidential by this Constitution, every person shall have the right to inspect or copy any record made or received in connection with the official business of the legislative, executive, and judicial branches of state government; each constitutional officer; counties, municipalities, consolidated governments, and local school districts; each department, agency, board, bureau, commission, or authority of any of the foregoing; any public-private partnership; any other government entity created pursuant to law or this Constitution; organizations with membership or ownership composed primarily of public entities; and private persons, corporations, or other organizations receiving, maintaining, storing, or otherwise in possession of records on behalf of any state or local government office or agency specified in this subparagraph.

(b) Except with respect to meetings or portions thereof exempted by general law pursuant to this Paragraph or otherwise specifically made confidential by this Constitution, all meetings of any governing body or board of any department, agency, bureau, commission, or authority of the executive branch of state government or of any county, municipality, consolidated government, school district, special district, or public-private partnership at which official acts are to be taken or at which official business of such body is to be transacted or discussed shall be open and noticed to the public; and meetings of the General Assembly shall be open to the public as provided in Article III, Section IV, Paragraph XI.

(c) Any law in force and effect on December 31, 2004, exempting certain government records or portions thereof from public inspection or disclosure or exempting certain government meetings or portions thereof from being open to the public contrary to the requirements of subparagraph (a) or (b) of this Paragraph shall continue in force and effect until such time as such law is specifically repealed by Act of the General Assembly or July 1, 2008, whichever first occurs; except that any such general law in force and effect on December 31, 2004, may be specifically continued in force and effect on and after July 1, 2008, by specific reenactment prior to July 1, 2008.

(d)(1) Any law in force and effect on December 31, 2004, exempting certain government records or portions thereof from public inspection or disclosure or exempting certain government meetings or portions thereof from being open to the public contrary to the requirements of subparagraph (a) or (b) of this Paragraph which law is not continued in force and effect pursuant to subparagraph (c) of this Paragraph shall stand repealed on July 1, 2008.

(2) Any law enacted on or after January 1, 2005, and prior to January 1, 2007, newly exempting certain government records or portions thereof from public inspection or disclosure or exempting certain government meetings or portions thereof from being open to the public contrary to the requirements of subparagraph (a) or (b) of this Paragraph shall stand repealed on January 1, 2007.

(e)(1) The General Assembly may by general law approved by two-thirds of the members elected to each house thereof amend any exemption which was continued in force and effect pursuant to subparagraph (c) of this Paragraph or provide for additional or different exemptions.

(2) The General Assembly may subsequently repeal any exemption which was continued in force and effect pursuant to subparagraph (c) of this Paragraph or any additional or different exemption enacted pursuant to this subparagraph

(f) Any general law continuing an exemption in force and effect pursuant to subparagraph (c) of this Paragraph or amending such an exemption or providing for any additional or different exemption pursuant to subparagraph (e) of this Paragraph shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.

(g) The General Assembly shall by general law provide for the implementation and enforcement of this Paragraph and matters related thereto, including without limitation the maintenance, control, destruction, disposal, and disposition of records made public pursuant to this Paragraph.

(h) Laws enacted pursuant to this Paragraph shall contain only exemptions from the requirements of subparagraph (a) or (b) of this Paragraph, provisions governing the enforcement of this Paragraph, or both.

(i) Any general law authorizing an exemption from the requirements of subparagraph (a) or (b) of this Paragraph shall be strictly construed to ensure that any infringement on the right to review records or attend meetings shall be minimal. The right to access government records and government meetings shall be construed broadly in favor of the public."

HOUSE RESOLUTION 1223 OF 2006

64 words

Sponsored by Mike Jacobs of 80th District and Alan Powell of 29th. "Article III, Section VI of the Constitution is amended by adding at the end thereof a new Paragraph VIII to read as follows: "Paragraph VIII. Open meetings and open records. All records and meetings of any governmental body, political subdivision of the state, authority, or private corporation performing a public purpose shall be open and accessible to the people. No exception to this requirement shall be allowed unless it is adopted by a two-thirdś vote of each house of the General Assembly and approved by the Governor."

HOUSE RESOLUTION 1235 OF 2006

62 words

Sponsored by Don Wix of the 33rd, Charles Jenkins of the 8th, Rob Teilhet of the 40th, Terry Johnson of the 37th, and Brian Thomas of the 100th

"Article III, Section VI of the Constitution is amended by adding at the end thereof a new Paragraph VIII to read as follows: "Paragraph VIII. Open meetings and open records. All records and meetings of any governmental body, political subdivision of the state, authority, or private corporation performing a public purpose shall be open and accessible to the people. No exception to this requirement shall be allowed unless it is adopted by a two-thirdś vote of each house of the General Assembly and approved by the Governor."

SENATE RESOLUTION 333 OF 2006

791 words

Sponsored by Robert Brown of the 26th District, Horacena Tate of the 38th, Tim Golden of the 8th, Regina Thomas of the 2nd, Valencia Seay of the 34th and Vincent Fort of the 39th. "Article I, Section I of the Constitution is amended by re-designating Paragraph XXVIII as Paragraph XXIX and inserting a new Paragraph XXVIII to read as follows: "Paragraph XXVIII. Official records maintained by or on behalf of state or local government available for public inspection and copying; state and local government meetings open to the public. (a) Except with respect to records or portions thereof exempted by general law pursuant to this Paragraph or otherwise specifically made confidential by this Constitution, every person shall have the right to inspect or copy any record made or received in connection with the official business of the legislative, executive, and judicial branches of state government; each constitutional officer; counties, municipalities, consolidated governments, and local school districts; each department, agency, board, bureau, commission, or authority of any of the foregoing; any public_private partnership; any other government entity created pursuant to law or this Constitution; organizations with membership or ownership composed primarily of public entities; and private persons, corporations, or other organizations receiving, maintaining, storing, or otherwise in possession of records on behalf of any state or local government office or agency specified in this subparagraph.

(b) Except with respect to meetings or portions thereof exempted by general law pursuant to this Paragraph or otherwise specifically made confidential by this Constitution, all meetings of any governing body or board of any department, agency, bureau, commission, or authority of the executive branch of state government or of any county, municipality, consolidated government, school district, special district, or public private partnership at which official acts are to be taken or at which official business of such body is to be transacted or discussed shall be open and noticed to the public; and meetings of the General Assembly shall be open to the public as provided in Article III, Section IV, Paragraph XI.

(e)(1) The General Assembly may by general law approved by two_thirds of the members elected to each house thereof amend any exemption which was continued in force and effect pursuant to subparagraph (c) of this Paragraph or provide for additional or different exemptions.

SENATE RESOLUTION 790 OF 2006

64 words

Sponsored by David Adelman of the 42nd District, Horacena Tate of 38th, Robert Brown of 26th, Doug Stoner of 6th, Emanuel Jones of 10th and Tim Golden of 8th. "Paragraph VIII. Open meetings and open records. All records and meetings of any governmental body, political subdivision of the state, authority, or private corporation performing a public purpose shall be open and accessible to the people. No exception to this requirement shall be allowed unless it is adopted by a two-thirdś vote of each house of the General Assembly and approved by the Governor."

SUGGESTED WORDINGS FOR BALLOT INITIATIVE

Short-form amendment of 2006:

( ) YES
( ) NO

Shall the Constitution of Georgia be amended so as to provide that all records and meetings of any governmental body, political subdivision of the state, authority, or private corporation performing a public purpose shall be open and accessible to the people?"

Long-form amendment of 2006:

( ) YES
( ) NO

Shall the Constitution of Georgia be amended so as to provide that state and local government records shall be available to any person for inspection and copying and that meetings of state and local government bodies shall be open to the public, except as otherwise provided by law under certain conditions?"

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