GUEST EDITORIAL: Violation of the state’s open records law

Lost amid the 24-hour-news-cycle roar of the impeachment process and perhaps overlooked by those deep in holiday preparation mode, a historic criminal case was heard in Georgia in December that deserves special notice.

On Dec. 19, a Fulton County jury found a former employee of the city of Atlanta criminally guilty of violating the state’s open records law for her attempt to interfere with news media requests for city of Atlanta water billing records in 2017.

Laws allowing public access to information maintained by government entities are generically referred to as open records laws. When this newspaper requests access to certain government information, such as police body cameras, employee personnel files or financial data related to real estate transactions, it does so under the open records statutes. Individuals can use the same laws to request most government information, though some is exempted from the statute.

The Atlanta trial marked the first time any government employee or official in Georgia had ever been charged and convicted under the law that was revamped in 2012 to allow for criminal prosecution.

Jenna Garland, a one-time aide to former Atlanta Mayor Kasim Reed, was found guilty of two misdemeanor charges. She was fined $1,500, but was not given any probation or jail time. The expectation is that she will appeal the conviction.

But even though an appeal is expected, the fact that a government employee can be, and now has been, charged and convicted of a criminal violation of the law should serve as a powerful reminder to all of those who are stewards of government records that the public has a right to access and review most of them.

Kudos to state Attorney General Chris Carr and his staff for taking serious their obligation to enforce the open records requirement and to prosecute its violators. That they have done so could prove to be a game changer when it comes to transparency in state government.

Prior to the change that allowed criminal prosecution, those who felt they were being denied access to records that should have been available to the public had little recourse other than pursuing the lengthy and expensive path of filing a lawsuit against the government in question. As a result, government officials and employees too often felt free to deny access to records because they knew doing so was unlikely to spark any sort of action.

Now, they face the potential of criminal prosecution, and even though only one case has made its way to trial before a jury, we have to believe virtually every county commissioner, city councilman, board of education member and government employee will take note of the fact.

In the Atlanta case, television station WSB had asked for water billing records for members of the city council and the brother of the mayor. Garland, via text message, told an official in the water department to “drag this out as long as possible,” and to “provide information in the most confusing format available.”

The level of transparency in state and local governments has improved dramatically in recent years, and the vast majority of those in public service understand that the public has a right to see and review those records the law allows to be made public. Many go above and beyond the call of duty to comply with requests made under the open records law.

But there always seem to be a few who believe that their position puts them above the law, and that they have the power to decide what the public should and should not know about the way its government operates. For them, finding ways not to comply with legitimate requests for records is as automatic a reaction as that of an insurance company denying an initial claim on a policy.

Too often, legal requests for government records are met with attempts to avoid, stonewall and delay compliance by those who believe that they are empowered to control government documents and who often do so as a means of protecting elected officials and government employees.

While the Atlanta prosecution happened to involve a case involving the media, the open records law does not exist just to be used by those in the news gathering process. The media, in this regard, enjoys no greater privilege than that of any resident of the state. At issue are public records, and any member of the public can, and should, have access to such records unless they are specifically exempted from the open records law.

While things are much better than they were before, there are still improvements than can be made. The timetable for compliance is still too vague; there are still many gray areas as to whether certain records must be made public, which allows for debate over things such as text messages on personal phones and “private” emails; and the penalties for violation are not stringent enough. But progress is being made, and we expect more will be made in light of the first criminal prosecution.

Much of the attention over access to records does involve the media, as it often serves as a surrogate for the public in requesting and reviewing records of government action. Increased respect for the open records law by the guardians of public records will make media access easier, and as a result the public will be better informed.

We expect more criminal cases will have to be made before the message is heard by all of those who need to hear it, and there may come a time when someone on the public payroll ends up going to jail over a refusal to comply with the law. But for now, we expect the results of the Atlanta prosecution to soon be front-of-mind for city and county attorneys, elected officials and public employees, and that’s a good thing.