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GPA Legal Hotline gives out expert advice

The GPA Legal Hotline provides Georgia Press Association-member newspapers with expert legal advice and answers to questions about legal issues in most areas of law affecting newspapers.

David Hudson is GPA’s general counsel and a partner in the Augusta law firm of Hull Barrett.

Kathy Bradford, Advance, Vidalia: At the Montgomery County Board of Education meetings, a blanket reason is given each time the board goes into closed session.

The chairman of the board reads verbatim: “To discuss or deliberate upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or period evaluation or rating of a public officer or employee (OCGA-50- 14-3(6)) and; To consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the school district or an officer or employee or in which the officer or employee may be directly involved; (O.C.G.A. 50-14-2).”

He never gives a concise reason for closed session, so the school superintendent usually looks at me and mouths why there needs to be such a session. However, last night, the chairman simply asked for a motion to go into closed session without reading the usual blanket statement or giving any reason before he asked for a motion and a second.

Two of the board members did as asked. When no reason was given, I asked for a specific purpose and was met with hostility by the chairman. Those actions aside, can a board chairman ask for a closed session before announcing what the session is for, and if so, can the board members be accountable, too, for any questionable actions that may occur behind closed doors?

David Hudson, GPA General Counsel: O.C.G.A. 50-14-4 provides that when any meeting is closed to the public, “the specific reason for such closure shall be entered upon the official minutes.” It also requires a majority vote of a quorum to meet in a closed session, and the minutes must reflect those who voted for closure. In my view, merely reciting at each meeting a standard formula that covers all of the reasons why a meeting could be closed does not comply with the requirements of this statute. Whoever is making the motion to close knows why he or she is doing so, and the specific reason/category for the closed meeting should be stated, voted on and entered in the minutes.

In the latter scenario you describe where there was no reason stated, this was clearly in violation of 50-14-4.

Something else you need to keep in mind is that 50-14-4(b) (1) requires the person leading the closed session to file with the minutes an affidavit swearing that the closed meeting was devoted to matters within exceptions provided by law “and identifying the specific relevant exception.” This is another requirement that the specific reason be given.

Jessica Loeding, The Daily Tribune News, Cartersville: A local city council held a closed session for personnel matters. While there is some doubt about the topic discussed, the question becomes: Is a city clerk required to keep minutes in closed sessions?

One council member has asked in the past that the closed sessions include only council members, and the session last night did not include anyone keeping minutes. Is the city required to do so? Would any action taken be affected if they did not?

Hudson: The amendments to the Open Meetings Act require that minutes be kept of closed-session meetings. O.C.G.A. 50-14-1(e). However these minutes are not public unless the agency consents or a court orders disclosure.

Kathy Jefcoats, Clayton News Daily, Jonesboro: I have petitioned the city of Forest Park for documents, etc., pertaining to a settlement made between the city and a former councilwoman. She appeared at a recent meeting to announce she’d settled with the city for $35,000 and federal court documents back that up. However, the mayor is alleging that no one authorized the settlement. I made an open records request. I am expecting my answer to be attorney- client privilege. Can they do that? How do I proceed if my request is denied?

Hudson: There have been two Georgia cases (one federal and one Superior Court) that have held that settlement documents must be provided under the Open Records Act by a local government. The settlement documents are not protected by any attorney-client privilege as they are between the city and the opposing party. Documents protected by the attorney-client privilege are only those that are held by one side of a case and not disclosed to anyone else.

Make your request, and it should be granted.

Alan Mauldin, The Moultrie Observer: After repeated verbal requests to a law enforcement agency about their reports not including the names of juve- nile victims, I’m going to make a public-records request for a specific report and request in writing that all future reports include this information.

It is my understanding that law enforcement agencies cannot withhold the names of juveniles who are victims of crimes. I would like to get a statement on the topic that I can include in that request.

Hudson: There is no provision of Georgia law that exempts the names of juveniles — whether suspected offenders or victims — from initial incident or arrest reports that are required to be made public upon request.

In addition to no exemption being stated in the law that allows the withholding of those names, law enforcement agencies should refer to the publication “A Law Enforcement Officers Guide to Open Records in Georgia.” This is a product of the Georgia Department of Law, the Georgia Association of Chiefs of Police, the GBI and the Georgia Sheriffs’ Association. The requirement of disclosure of juvenile victim names is addressed at page 19 and states that the names should be disclosed. A copy of the booklet is available on the GFAF website, www.gfaf.org.

Elizabeth Billips, The True Citizen, Waynesboro: The Waynesboro Police Department has recently gone to a new format for its incident reports. Officers told me (off the record) it is to keep bad stories out of the media. Virtually no information is provided. Are there certain items that must be listed in an incident report or is it simply at the department’s discretion?

Hudson: My guess is that these “sanitized” reports are not the only incident reports made by the police. And even if they call the other documents a supplement or addition to the initial incident report, these are public records.

The first step would be to find out what else is completed by the police department — if they are like every other police department, there is more information in something else that is initially completed and put in their records. And such documents or computer entries are public.

Mitch Sneed, Douglas County Sentinel, Douglasville: Recently as part of another investigation, we made a request for the emails of a county commissioner. In those emails, we found more than 20 emailed requests for this commissioner to give approval by email of purchase orders.

When I discovered this I inquired and was told that on matters of more than $25,000 they require the “approval” of at least three commissioners and that approval was given via email response. Three would be a quorum. I have read the open meetings handbook and saw this passage: “Email communication among members of a board of commissioners does not create a meeting subject to the open meetings law. However, emails are subject to disclosure under the open records law. The exclusions above do not apply if it can be shown that the primary purpose of the gathering or gatherings is to evade or avoid the requirements for conducting a meeting while discussing or conducting official business.”

In your opinion, do these emails constitute official business? Also, is the practice of three commissioners giving approval via email essentially a vote that should take place in an open meeting? Does this violate the open meetings law and what should be our next step?

Hudson: The county commission doing business on the basis of emails is fraught with illegalities and peril for all involved.

The county cannot take binding legal action without a vote in a properly noticed and open-to-the-public meeting. This might be different if, under the county ordinances, purchasing approval at a certain dollar amount and below has been vested in the chairman or county manager or some other employee. But except for an action of that nature, anyone doing business with the county is taking a risk that proper and binding contractual authority is missing.

In fact there is a body of law that holds that a county can only be bound by a proper vote that is recorded in the minutes of the county commission.

For most violations of the open meetings law, an action can be filed to set aside conduct of the county in violation of the act, but the action must be filed within 90 days of when the illegal conduct was discovered.

As for steps that the newspaper can take, you can certainly expose the matter in news articles and editorialize about the violations of the act. If the county, for some reason, does not change its practices, then you can set forth the circumstances and present them to the attorney general’s office for its review and advice to the county commission. The last alternative available is that the newspaper or any citizen can file suit for the violations and recover statutory penalties and attorney’s fees.

Larry L. Stanford, The Thomaston Times: Thomaston and Upson County have been arguing about the Local Option Sales Tax (LOST) and service delivery for more than a year now. Last year, Thomaston sued Upson County for violation of the Open Records Act when Upson County failed to provide all the tax data the city requested. The county finally provided the information.

The LOST negotiations went through all the stages — negotiation, mediation, and were finally sent to Senior Judge Stephen Boswell for a decision. But the city and county attorneys got together and told Boswell they felt they could come up with an agreement, so they have been working since last April and finally have a draft proposal ready.

Two questions:

1. The Upson County Board of Commissioners went into closed session Tuesday night, and again at a called meeting Friday morning, to discuss the draft proposal, claiming potential litigation. Would Boswell making the final decision if the proposal isn’t agreed upon be considered the potential litigation?

2. The board said Friday that it planned on meeting with the city council Tuesday before the council’s regular meeting. Can two governing bodies meeting jointly claim potential litigation and close the meeting?

Hudson: The county commissioners would be entitled to discuss aspects of the litigation, even under the circumstances you describe, in a closed session. This is premised on, of course, that there was a properly noticed open meeting and a vote taken by the majority to meet in the closed session.

In regard to the proposed joint meeting, there would be no exception that allows that to take place in closed session. The litigation exception that allows closed meetings is specifically to allow confidential consultations with the agency’s attorney about pending or potential litigation. This is to preserve the attorney-client privilege for the agency. But once outsiders are admitted to the meeting, in this instance, the city council, there is no longer privileged attorney-client communication taking place, and the legal justification to allow a closed meeting would no longer exist.

Dub Joiner, The News Observer, Blue Ridge: What is the code section in the law regarding photographers at crime or accidents scenes? We have had a couple incidents lately when law enforcement and fire department personnel have said we could not take pictures at an accident and a suicide scene, even from a distance.

Hudson: There is no statute that establishes the right of journalists to be present at accident or crime scenes. It is a principle of First Amendment law that is established by court decisions across the country. They can be summed up as follows: Anywhere that a member of the public has a right to be, journalists can be there also.

This means that officials can cordon off ingress and egress for emergency vehicles, and can cordon off crime scenes to preserve evidence. However, from places outside the cordoned areas, journalists are entitled to conduct interviews, and photographers are entitled to take pictures.

Typical places where the public and journalists have the right to be are public sidewalks, publicly owned rights of way to streets and highways, and private property that is not posted or where the owner does not direct the journalists to leave.

Jim Healy, Statesboro Herald: Are the bids submitted to the city of Statesboro by insurance carriers to provide insurance coverage subject to open records law? Are the grades given to each company and the accompanying paperwork subject to open records law?

Hudson: O.C.G.A. 50-18- 72(a)(10) makes bids and cost estimates closed until a contract is awarded or the agency takes a vote regarding the bid or proposal.

Kathy Bradford, The Advance, Vidalia: Can a board of education change its regular monthly meeting schedule without notifying the media or public? The Montgomery County Board of Education approved its monthly meetings to be the third Monday of each month at 7 p.m. during Daylight Saving Time, and 6 p.m. Eastern Standard Time. Less than an hour before the latest meeting was scheduled to start, I received a phone call from a reporter at another newspaper that covers the meeting, who told me she happened to see on the BOE’s webpage that the meeting had been changed to the next week. None of the local media outlets (two newspapers and one radio station) were notified by the superintendent or a designee.

Hudson: A meeting place and time can be changed. For the media to receive notice, some steps have to be taken in advance. For newspapers published less than four times weekly, O.C.G.A 50-14-1(d) provides that notice has to be given, in addition to posting at the meeting place, to media only where there has been a “written request from any local broadcast or print media outlet whose place of business and physical facilities are located in the county.”

If you have not done so, you should give written notice now to every local government entity, county, city, authorities and school boards that if a meeting is held at other than the regular time and place, you request notice be given to the newspaper as required in 50-14-1(d) by telephone call, or by fax or email. You would, of course, provide the fax number and the email address.

Otis Brumby III, Marietta Daily Journal: I would expect to see a confidentiality notice at the bottom of one of your emails. However, when I got an email from the mayor of Kennesaw this morning, I was surprised to see a confidentiality notice at the end. It is from his city email address. Is this unusual?

I’m assuming it would not be applicable if we filed an open records request of emails on a particular topic that was not an exception under Georgia law.

Hudson: The disclaimer by the mayor has no effect on whether an email is an open record and whether it may be disseminated. I guess he is free to put the language at the bottom of the email — he probably saw it on an email to him at some point — but it cannot trump the Open Records Act, and there is no legal “privilege” that applies to communications to and from a public official such as an email.

Eric Curl, Savannah Morning News: The city of Savannah argues that the land purchases and subsequent contracts made in 2006 and 2007 for Westside development were legally approved in executive session. They were never voted on in regular session, however. I was under the impression that property acquisitions could be negotiated in executive session, but eventually had to be approved in open session. Since those purchases, the city has adopted a new policy in which the contracts are approved during the regular meeting.

Hudson: Before the amendment of the Open Meetings Act in 2012, all that could be done in closed session regarding real estate was to “discuss” real estate acquisitions. All votes had to be in a public meeting. 50-14-3(4).

The new law at 50-14-3(b) (1) allows discussions and nonbinding votes in a closed meeting. The transaction is not binding until voted on in an open meeting.

Mark Berryman, The Elberton Star: Our local hospital authority, a self-perpetuating board with a couple of exceptions, went behind closed doors to “discuss a prospective member’s credentials” before voting to accept the candidate as a member of the board. In our view, this does not fall within the scope of the exceptions for a closed-door session (litigation, personnel, real estate and, of course, competitive advantage).

Also, the hospital has formed an affiliation with an area hospital (AnMed) and a representative from that hospital regularly attends the closed-door sessions. Is that permissible?

Hudson: O.C.G.A. 50-14- 3(b)(2) provides among other things as follows: “Meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself shall at all times be open to the public as provided in this chapter.” Thus what you describe was an impermissible closed meeting. The entirety of agency discussions regarding the filling of a spot on the board itself should have been open to the public.

Now that the horse is out of the barn and they have conducted the illegal closed meeting, you will want to make an open records request for all documents that were received or generated by the board in connection with the filling of the position.

As to the participation in closed meetings by a representative of AnMed, it would likely defeat the attorney-client privilege that allows closed meetings for discussion of pending or proposed claims of litigation with agency counsel. For other types of closed meetings, as long as the person did not provide evidence or argument on the issues (other than real estate), the person could remain present.