A previous article, Leechwatching Tools, introduced many laws and other resources that a citizen can use to keep their local government in line. While I am not an attorney, and none of what you read on this site is legal advice, the applicable laws, both state and federal, are clear enough for anyone to read them and know what they mean. In a previous article in this series, we introduced the Georgia Open Meetings Act. That law is an important tool which allows you to identify attitude problems in public officials and to spot lies, both of which help direct leechwatching efforts. In this article, we flesh out an even more powerful tool, the Georgia Open Records Act.
Formally known as O.C.G.A. §50-18-70, et. seq., or GORA for short, a text description of this Georgia law can be found here, as linked from the attorney general’s site. Audrey, a former Manassas councilwoman who is the only Manassas council member to have attended the state-mandated elected officials training, also provides additional content from that training. The important provisions include the requirement to respond promptly, provide full and complete answers, charge reasonable fees for copies and/or research, and only withhold information in specific and reasonable circumstances, such as in juvenile-related matters. It is also useful to give misbehaving officials an opportunity to hang themselves with false official statements or evasions of the law, as well as to train them that their place in life, as your servants, is to jump when your fingers snap.
As was the case with the Open Meetings Act, and as defined in the law itself, the word agency is used to mean all number of public bodies, including county commissions and city councils. For those of you interested in watching various public authorities, such as housing or health authorities, these rules apply also. For simplicity, we will use the word agency in this article also.
In addition, the law specifically states that its purpose is “to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions”, which is a just and noble purpose. Local officials who try to dodge their open records responsibility are even more suspect because of this intention.
Note also that public records also include those documents or other information held by private parties. Your local city council doesn’t get to dodge disclosure by using a private email server, for example. There are, however, some specific exceptions to disclosure noted in the law, which include:
• Records required by federal statute or regulation to be kept confidential.
• Information which would jeopardize criminal investigations or sources.
• Personal information which would create a risk of identity theft or loss of privacy.
• Information which would unduly impact child safety.
• Trade secrets or other proprietary business or research information.
• Information used as part of ongoing negotiations.
The exceptions listed in the law are numerous (at least 47 different categories). However, most of these exceptions are entirely reasonable, and the exceptions to these exceptions are themselves nuanced, closing some of the possible loopholes for abuse. Importantly, it is the responsibility of the agency to identify the specific category of exception they are citing if your requests are declined. Without stating any specific category, they are required by law to honor your request. And, to protect the officials, if they make a mistake and provide information they should not have provided, but did so in good faith, then they cannot be held accountable. As a result, the bias is toward disclosure, which, like the principle of innocent until proven guilty, is a good thing.
A GORA can be given verbally, or in writing. A written request is best, particularly if the agency is further requested to stamp the request as received. There is no excuse for an official to refuse to acknowledge receipt of a request; this factor alone makes a GORA a powerful tool to uncover subterfuge. (1) If all else fails, you can send the GORA by certified mail. In certain circumstances, the extra expense is well worth it. (2)
Once you have presented the agency with a GORA, if no exception applies, then they have three days to either provide the requested information, or to provide a plan as to how and when that information will be provided. (3)
The GORA allows records to be inspected by the public, generally at no charge, and you may bring your own scanner or take pictures if you wish. However, if you wish to obtain copies, reasonable fees can apply. The established rate for copies is a maximum of ten cents per page, plus the wages of the lowest-paid qualified employee on an hourly basis past the first quarter-hour, although no such fees are required except in the case of certified copies or for other specific records. For an estimated GORA project above $25 in such fees, the agency may require an agreement for payment in advance. For estimated projects above $500, the agency may require advance payment, rather than a simple agreement to pay. If an individual has a history of non-payment, advance payment may be demanded by the agency in all cases until all past-due amounts have been paid in full. Unpaid amounts can also be collected as unpaid taxes.
You may also request electronic records or copies if the information is available in that form, as well as providing a request electronically, such as via email. Whether the information sought is electronic or hardcopy, the information must also actually exist in order to be provided; new reports or compilations, for example, cannot be demanded by the requestor, although it may be in the agency’s interest to create such a summary in response to a request.
Importantly, note that there are also civil and criminal penalties for failure to comply with a GORA, but only for written GORAs. For the first violation of a written GORA, a fine of $1000 may be assessed. For the second and subsequent violations, fines of $2500 may be assessed, although a good faith defense may be mounted by the official. To defeat this defense, a detailed request letter is an important weapon. If, however, officials destroy records to avoid disclosure, that is a violation of O.C.G.A. §45-11-1, a felony with a minimum prison sentence of two years. The same offense applies to a wide range of false filings, defacing, or altering of public records.
An agency may, but is not required to, identify a responsible official or officials, known as the open records officer, to whom requests should be addressed. The three-day clock begins running when any such publicly-identified open records officer receives the request. It is a useful strategy to first inquire whether the agency has identified an open records officer, and if not, the agency clerk or chief executive official should be addressed. A chronically unavailable open records officer, however, cannot be used as a dodge to avoid responsibility to comply with requests, as this behavior may constitute an offense under O.C.G.A. §45-11-4 (b)(4), a misdemeanor which also results in removal from office, a punishment more stiff than simply ignoring the GORA itself.
In this article, you’ve learned about a powerful leechwatching tool and a way to extract information from public officials, whether they like it or not. In a future article, we’ll show a live example of how to perform a GORA using a written letter, and some tips on formatting these letters for maximum impact. We’ll also show how to use a combination of requests to detect deception and zero in on the guilty parties.
(1) Regular readers may note that the Manassas mayor and clerk both refused to stamp one of my requests as received back in March of 2016, which only increased my curiosity further.
(2) After the city officials refused to stamp that March 29th request as received, I then sent it as certified mail. Mayor Rogers signed for this certified letter on April 5th, 2016. The next day, April 6th, she gave a ridiculous statement to the sheriff’s office, resulting in an allegation of criminal disorderly conduct against me. We’ll drill into this attempted abuse of power in separate articles after our attorney finishes some filings. Although this is an extreme example, if such a thing occurs in response to a GORA, then that is a huge clue that there may something worth their risking perjury to hide.
(3) As an example, on a recent Tuesday we presented a GORA to the Manassas city clerk, who has now wisely elected to begin signing for these documents rather than dodging them as both she and her mother, the mayor, attempted back in March. The clerk claimed that some of the requested information was not immediately available to her, and offered to have this information for us the following Monday. Since she, within three days (in this example, immediately), offered a reasonable plan to provide the information, even though the information itself wasn’t provided until six days later, she was in compliance with state law for this specific request. Some of the requested information was not provided, however, so we shall follow this with a different sequence of requests designed to extract truth from those who possess it.