SPRING 2006 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

Attorney’s fees paid by agencies when losing in court?
An FOI dream advances a bit in 2006 General Assembly

HB 1071 ‘would have changed the course
of open-government litigation in Georgia’

Lilburn, GA., March 14, 2006 – It is the open-government anomaly of the 2006 session. A Republican – a committee chairman, at that – brought a bill that would have achieved greater freedom of information, would have realized a dream held by Georgia media and activists for generations. It is the dream of attorney’s fees paid by losing government agencies in lawsuits seeking open records.

Rep. Austin Scott of Tifton is a Republican and the chairman of the Governmental Affairs Committee of the Georgia House of Representatives. He is the sponsor of House Bill 1071, and this is its key language:

"… to amend Code Section 50-18-73 of the Official Code of Georgia Annotated, relating to jurisdiction to enforce the inspection of public records, attorney's fees and litigation expenses, and good faith reliance as defense to action, so as to provide for the award of attorney's fees to a person or entity bringing a successful action to enforce compliance with the requirements relating to the inspection of public records."

It was favorably reported by Scott’s own committee March 8, but stalled in the Rules Committee. There it reposed on March 13, the day when bills had to pass one house to make it to the other this session. It never made it to the floor. By then, it had gained a provision that is noxious to many in the media. It is the requirement that open-records requests be in writing.

In one of the most difficult decisions of her nearly a decade as executive director of the Georgia First Amendment Foundation, Hollie Manheimer cheered the attorney’s-fees provision in HB 1071. However, she said of the late addition of the amendment calling for open-records requests in writing: "I don’t like it." Nevertheless, she gave Rep. Scott her endorsement of the bill. Manheimer is helping to lead a growing coalition of non-profit groups interested in more sunshine, and three of them immediately joined her in support of HB 1071. They are Georgia ACLU, Common Cause of Georgia, and the Georgia League of Women Voters.

A Fulton Daily Report article in 2004 placed at $315 an hour the average attorney’s fees in Georgia. The large media companies keep law firms on retainer and pay annual deductibles. With this money, they defend against assertions by readers, and also use some it in freedom of information actions in selected fights.

What HB 1071 would have meant is that an average person would have a greater chance of taking on an agency in court without transcendant financial loss. If, say, the citizen was getting nowhere with open-records requests, and then was dissatisfied with the outcome of her dispute in the Attorney General’s Open Government Mediation Program, she could find a feisty sole practitioner and go to court. They would launch a legal drive that could take years with the knowledge that if successful, she would recover her attorney’s fees, and he would get paid.

"I was very disappointed the bill didn’t go farther," Manheimer said. "It was a delicately drawn compromise that would have furthered the ability of Georgia citizens to file open-records requests. That ability would have changed the course of open-government litigation in Georgia. It’s a real missed opportunity."

The Association of County Commissioners of Georgia has stuck to its guns in seeking for years a statute requiring open-records requests in writing. The FOI community will have to weigh its longstanding opposition, if this provision stays in HB 1071 in 2007.

Everywhere in all corners of each state, volunteers in the surveys in Georgia in 1999 and Alabama in 2003 found public agencies with handy open-records forms at the front counter, ready for citizens to complete and turn in. It’s hard to believe it’s been seven years now since a police desk sergeant in tiny Adel, in deep south Georgia, took the ultimate step in technical cooperation with a citizen. He provided the citizen the password into the city’s public computer. The citizen logged in, got the documents needed, thanked the officer, and departed.

Georgia’s farmers are among the most advanced citizens in technology. They go on the web site of the Georgia Department of Agriculture to learn the results of laboratory tests of plants, soil and water; to note how and when to apply pesticides; and in north Georgia’s chicken kingdom, they’re online even to know the suggested temperatures at which to brood baby chicks. To assess fertility of soil from a wider vantage point, they provide e-mail addresses to the US Dept. of Agriculture in Washington, and in turn, receive Global Positioning Satellite photos of their farms from space.

This year my termite inspector made his annual visit, and he commented that he is having some trouble with his laptop. However, his girlfriend is studying the manual for hers, and is going to get him surfing again soon. Georgians are wired.

A citizen without e-mail or even a sheet of paper from their child’s school notebook, or when visiting an agency not providing open-records forms, could say these 11 words: "May I have a pen and a piece of scratch paper?"

This reporter’s research since 1991 has turned up only one state in the South with attorney’s fees in open-government cases. It is Arkansas, where a fearless editor-in-chief of a Little Rock daily led a commission appointed by Gov. Winthrop Rockefeller to improve the sunshine laws. He and his group succeeded, and won this provision.

Tom Bennett of Lilburn is a GFAF volunteer and retired news employee of the Atlanta Journal-Constitution.