WINTER 2006-07 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

Georgia’s Green Book signals ‘Go’ for citizen access to the open records of public schools

Combining to produce this new 2006 guide are Attorney General Thurbert Baker plus the Georgia First Amendment Foundation, Georgia PTA and Georgia Press Association

‘Public school records lie at the critical intersection of an individual’s
right to privacy and the public’s right to know’

By Tom Bennett

Decatur, Ga., Dec. 23, 2006 – Our country got started once we wrote a constitution that worked. It’s elastic, dynamic and growing. The way we change is called "amending" it. The very first amendment gives us freedom of speech and the press. All this is taught to children in the K-12 public schools. Yet school systems flunked a 1999 survey of open government in Georgia, bringing up the rear behind other government agencies. There are school superintendents, boards and attorneys who think up ways to STOP citizens and reporters from getting public records. It sounds crazy, but it happens all the time.

Attorney General Thurbert Baker and the Georgia First Amendment Foundation, Georgia PTA and Georgia Press Association now have combined to build a tool for confronting this dysfunction of Georgia public life. It is the 32-page booklet with a green cover entitled, "Georgia Public Schools and the Open Records Act: A Citizen’s Guide to Accessing School Records."

"Public school records lie at the critical intersection of an individual’s right to privacy and the public’s right to know," Baker writes in the foreword. It is the law, he says, that public-school records "must be made available for public inspection absent a clear legal requirement preventing disclosure or requiring the redaction of certain confidential information."

This is his strongest statement in any of the Hollie Manheimer books about Georgia FOI. It also is the clearest road map yet produced for traveling on the privacy-versus-access landscape of the largest state east of the Mississippi River in the 21st Century. Just the table of contents of this booklet alone is a heartbreaker for any denial-minded Georgia school superintendent. Here he and his staff – who are ready to take whatever position he favors, iron obduracy or modern cooperation – can find in two pages the guidelines for how to proceed in FOI.

Here are the boldfaced headings of this table of contents: Overview of Georgia’s Open Records Act; the Family Educational Rights & Privacy Act (FERPA); Inter-relationship between Georgia’s Open Records Act and FERPA; Campus courts; School personnel records; Administration records; the Open Records Act process; and Appendices.

"Public officials really aren’t left much recourse, because they can find everything fast," said Kathryn Allen of Decatur. She is the retired senior Assistant Attorney General of Georgia and Emory Law graduate who ended her career in the Attorney General’s office in a historic role. She was the first coordinator of A.G. Baker’s Open Government Mediation Program in 2003-05. Before concentrating on open government, she was Georgians’ lawyer before our Supreme Court in a host of cases. In Georgia Hospital Association v. Ledbetter, Allen led the state’s highest court to establish that accreditation records of hospitals, public and private, are open. Since retiring, Allen has assisted Hollie Manheimer in the editing of this new guide to public school FOI.

The venerable practices in Georgia school districts of dogged reliance upon, and very spirited interpretation of, the U.S. Department of Education’s FERPA law will suffer now that the "Green Book" is being distributed around the state.  "My personal opinion is that the Family Compliance Office, which enforces FERPA, does it much more broadly than Congress intended," Allen said. "But we’re kind of stuck with the way they interpret it, because schools don’t want to lose any chances they have of getting their federal money. It also gives schools not happy about turning loose their records an excuse."

However, the person who served as day-to-day coordinator of open government in the Law Department has strong views about the importance of privacy of certain Georgia school records. "I personally think an individual student’s grades should not be public," Allen said.

The foreword of this new booklet, which she signed off on, also stresses the privacy of "academic performance, medical or financial information and Social Security numbers." The individual student grades and these other facts are protected. They "must be redacted from the documents prior to disclosure absent the consent of the student or his guardian," according to the foreword.

If you are prepared to dismiss the "Green Book" as unqualified work of advocacy of openness, think again. Sad but true for pro-openness types, this book’s pages 22-26 define 32 types of "Information exempt from public disclosure." These range from AIDS/HIV information to confidential records concerning reports to child abuse to confidential juvenile records to wiretap records. At least the glib envisioning of supposed exemptions can be checked now that the state has its first-ever publication for average citizens of what the permitted exemptions actually are.

As in the other Manheimer books, this one also explodes the myth, dear to its legislative authors, that Title 50 of the Georgia Code has all the open government law. If only that were true, but it is not. The exemptions list in the Green Book also names other laws that prevent disclosure and that can be found in Titles 15, 25, 31, 35, 37, 40, 45 and 48. By admitting that the legislature has sprayed exemptions everywhere, tacked them on as riders to big transcendent headings like agriculture and mental health and professions and businesses… only then can the access side begin to check annual growth of exemptions. As Georgia FOI Access reported in Fall 2006,

15 new exemptions already have been written this century by 42 Georgia legislators.  "The reason I like the list of exemptions (in the book) is that we want this to be helpful to the schools," Allen said. "If it’s a helpful tool for them, they’ll rely on it."

Radio talk-show host Neal Boortz condemns government schools. Microsoft Corporation's Bill Gates says they’re "obsolete." In our memory, no one ever launched a gubernatorial campaign without a plan to reform schools.  Studies showing how to fix them have felled forests to produce the paper needed.

Society’s ills fall to teachers to heal. Here in our region we’re at the bottom of most measures of school quality, so teachers have to spend about as much class time to prepare for statewide tests as they do for advancing lesson plans. So it isn’t surprising, is it, that teachers band together in a kind of bunker mentality? The legislator or governor who crosses them does so at his or her peril, and the state is scrambling to figure out where it is going to get the money for the pensions promised them.

"I was a teacher, you know," Allen recalled. "I know how important teachers’ jobs are. But I also remember how there are people with no other motivation in life except to just make a living, and so they decided to teach school. The ‘bunker mentality’ you refer to produces those bad teachers. For the school system to get rid of them, they have to do something almost morally reprehensible. I don’t know what percentage of teachers are good, or what percentage are bad. I know it is a place where some people come out and try their wings and decide it’s not for them. I was one of them.

"I’ve had cases where we took teacher certificates away; my point of view may be a bit tarnished by that. In terms of openness, I think, yes indeed, parents and the general public need to know how teachers are performing. That’s the way to excellence, I’m convinced of that."  I told Allen that she could have been out golfing or traveling to Copenhagen or Bora-Bora, instead of helping with the Citizen’s Guide to Accessing School Records.

"You over-estimate the state pension," she replied.  Did she find this work satisfying?  "I found it very satisfying," Allen said. "Hollie Manheimer is responsible for the good organization of it. When I came into the project, it was pretty much done. I fixed a few things and tinkered with the FERPA part of it. I wanted it to be right so schools would use it." 

The results of the 1999 Georgia open government survey, with the percentages of government agencies permitting individuals to inspect public documents, were:

• City council latest approved minutes, 93%;
• County commissioners latest approved meeting minutes, 89%;
• University or college daily public crime log, 86%
• City police previous day’s incident reports, 62%;
• County sheriff previous day’s incident reports, 50%; and
• School superintendent employment contract, 47%.

The Green Book and its companion publications are available from Hollie Manheimer at Georgia First Amendment Foundation, 150 E. Ponce de Leon Avenue, Decatur, GA 30030. The e-mail address is info@gfaf.org and the telephone number is 404-525-3646.

I once visited the journalism school of a pre-eminent university of a Southern state whose quality of open government is a scandal. For an example of how FOI was being taught, I was taken to the classroom of a professor from Australia who said that to illustrate FOI to the students he talks about the difficulty he once had as a wire-service reporter getting records in London. I was courteous about it and didn’t say out loud what I was thinking, namely, that recalling trouble with records in England is not focused enough for the students. It doesn’t help them understand what’s happening in their own town, county and state.

Examples of the ways that bulk copies of the Green Book could be used are:

• place on the counter of the superintendent’s waiting room;
• conduct a workshop for all the civics teachers in the school system;
• take to the board members’ retreat; and
• hand out to every one in the newsroom of the newspaper, radio station or television station.

Stefan Ritter has succeeded Kathryn Allen as coordinator of the A.G.’s Open Government Mediation Program, in addition to his many other duties as a section chief in the Law Department at 40 Capitol Square in Atlanta.

Tom Bennett writes about access issues for Georgia FOI Access.