published Sunday, March 13th, 2011

Georgia not prosecuting sunshine law cases

ATLANTA—As Georgia’s new top attorney pushes for stiffer penalties for violations of sunshine law violations, records show the state has not criminally prosecuted any open records or open meetings complaints since the attorney general’s office began mediating those cases in 1998.

Most of the more than 2,200 cases in Georgia reviewed by The Associated Press were resolved when attorneys explained the law. In hundreds of those cases, the agency handed over the records after state attorneys intervened, and the complaints were resolved satisfactorily.

But in a handful of complaints — the AP review found at least a dozen — the office declined to pursue probable violations in court. In several of those instances, state attorneys identified clear breaches of the law but suggested the individual who filed the complaint hire private counsel to pursue the case in court.

The attorney general’s office said the purpose of the mediation program is to avoid going to court. Stefan Ritter, a senior assistant attorney general who oversees the program, noted the office has successfully mediated the vast majority of the complaints without having to file criminal charges.

“It’s true that we don’t have special resources set aside for these cases, and the Law Department in general is swamped. It would be very difficult for us to litigate the cases with the resources we have,” he said. “But that wasn’t the intent of the program — it was to avoid litigation by serving as an impartial mediator.”

Attorney General Sam Olens, who took office in January, has made strengthening Georgia’s sunshine law one of the cornerstones of his first year in office. He said the proposal would help improve transparency while adding new safeguards for the public and government officials.

He backs legislation that would increase fines for violating the laws to $1,000, up from a $100 fine for violating the open records act and a $500 fine for flouting the open meetings law. The proposal, which was introduced last month, would also increase fines to $2,500 for each subsequent offense.

The stiffer penalties could clear the way for more criminal prosecutions.

“The sanctions historically have been very small so there’s really no incentive for anybody to go to court,” said Ritter. “If we can get some help from the General Assembly, we might be going to court a lot more often.“

Although local prosecutors also can use the measure to sanction violators, free speech advocates say the state’s most powerful legal office must prosecute violators to send a clear signal to government record-keepers.

“If there’s no real penalty, and we have no enforcement of that penalty, we have no protection,“ said Cynthia Counts, a First Amendment attorney in Atlanta. ”And there’s no greater threat to democracy than when the government is acting in secret without any accountability to the public.“

The AP review found that hundreds of residents asked for records that were not covered by the sunshine laws, such as sealed court documents. In other instances, state attorneys typically were able to get officials to comply after reviewing what the law does — and does not — allow.

One example came in September 2007, when Bill Moody complained that the city of McDonough adopted a resolution that barred video and audio equipment from public meetings. After the attorney general’s office intervened, the ban was dropped and recordings were again allowed.

Not every complaint was so cut and dry.

In one incident, state Rep. Gerald Greene complained in February 2002 that the Randolph County Board of Education violated the meetings law by going into closed session without handing out an agenda. The AG’s office agreed, suggesting the county could be “found guilty of misdemeanors for these actions.” But the case was never brought to court.

Greene said he understands the office’s decision, given tight staffing. He said legislators hope to give the office more resources to pursue sunshine violations, but said it’s a difficult prospect amid the tough economy.

“I understand how we have cut them and it is a problem for them to take up every case, and I don’t know how to resolve that issue,” said Greene, a Cuthbert Republican who sits on the House Appropriations Committee. “They’ve got limited resources, and once you serve on these committees you understand these problems.”

In other cases, complainants aren’t as understanding.

Ted Hill, an emeritus professor of mathematics at Georgia Tech, complained in January 2006 that Georgia Tech wasn’t responding to request for audits and other records about a grant. When he asked the state to file charges, he was told the office “does not prosecute misdemeanor charges against violators,” according to the records.

Hill said he was discouraged by the response from state attorneys, who he said have “spared no taxpayer expense” to protect government officials from prosecution of sunshine law violations.

Ritter said the Attorney General’s office has considered prosecuting a few of the cases cited in complaints to make an example out of the offenders. But he said it’s been difficult to prove a government worker knowingly violated the sunshine law, the standard for prosecuting an individual in court.

“The laws are on the books so they serve as a warning to folks that we could go after them,” said Ritter. “It helps us to have that in the background to enforce it if necessary. But the fact of the matter is we just haven’t found a situation, despite some egregious cases, to go to court. And I don’t think we have the resources to go after them.“

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