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 Order N u m b er 1350131

T h e G e o rg ia O p e n R e c o rd s A c t: A n h is to ric a l an aly sis

Davis, Charles Nelson, M.A.

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University of Georgia, 1992
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Copyright © 1992 by D avis, Charles N elson. All rights reserved.

UMI
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 THE GEORGIA OPEN RECORDS ACT:
AN HISTORICAL ANALYSIS

by

CHARLES NELSON DAVIS

B.S., North Georgia College, 1987

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A Thesis Submitted to the Graduate Faculty
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of The University of Georgia in Partial Fulfillment

of the

Requirements for the Degree

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MASTER OF ARTS

ATHENS, GEORGIA

1992

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 CHARLES NELSON DAVIS
The Georgia Open Records Act: An Historical Analysis
(Under the direction of WALLACE EBERHARD)

The purpose of this study was to chronicle the history of the Georgia Open

Records Act. Included were specific events leading to the enactment of the law, legal

interpretations and legislative amendments.

The research involved an examination of all available information relating to

the law. This included an extensive survey of Georgia Supreme Court decisions,

official opinions furnished by the state Attorney General’s office, news accounts of the

open records law by several state newspapers and interviews with legislators and

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reporters.

The author found that the law has evolved from a broad declaration into a
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specific statute. The research also revealed that the courts steadfastly have supported a

broad interpretation of open records, while law enforcement agents, hospital personnel
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and members of the legislature often sought ways to circumvent the law. Despite

several outdated provisions, the law provides access to the majority of government

documents in Georgia.
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INDEX WORDS: Public Access, Open Records, Media Law, History, Georgia,

Legislation

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(C) 1992
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Charles Nelson Davis

All Rights Reserved

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 THE GEORGIA OPEN RECORDS ACT:
AN HISTORICAL ANALYSIS

by

CHARLES NELSON DAVIS

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Approved:

[yj ^ Date_________
X ^
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______________________________ '
Major Professor
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Approved:

Graduate Dean

Date

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 To Julie and to my mother and father

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iv

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 ACKNOWLEDGEMENTS

I wish to acknowledge and thank my thesis committee members, Roland Page

and Kent Middleton, for their time, interest and critical expertise throughout this

study. I am especially indebted to my major professor, Wallace Eberhard, for the

patient guidance and thoughtful encouragement he provided during my years at the

University of Georgia. The wisdom and caring of these three scholars provided me

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with the inspiration to continue my studies despite the temptations of sunny Saturdays
and lazy winter evenings. IE
Special appreciation goes to Michael Bowers, William Shipp, Michael Buffing­

ton and other experts who took time from busy schedules to share with me their

experiences in helping to create the Georgia Open Records Act.

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I wish to thank my family for their unwavering support and encouragement

which enabled me to return to school. I am also grateful to Kenneth and Robin

Russell for all the late-night laser-printing sessions; to Luther Beck, J r., for his legal
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wisdom; to Edward De Marco, Jr., and Thomas Murphy, for the pep talks; and to E.

Davis, for his unwavering loyalty.

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 TABLE OF CONTENTS

Page

ACKOWLEDGEMENTS ................................................................................................. v

CHAPTER ONE: Introduction....................................................................................... 1

CHAPTER TWO: The Origins of Open Government ................................................. 5

CHAPTER THREE: The Establishing of Precedent ................................................. 29

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CHAPTER FOUR: The 1980s: Open Records Move to the F o refro n t.................... 50

CHAPTER FIVE: How Much Sunshine Is There? ................................................... 92

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CHAPTER SIX: Conclusions and Recommendations ............................................ 119

BIBLIOGRAPHY ........................................................................................................ 143

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vi

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 CHAPTER ONE

INTRODUCTION

The Georgia Open Records Act is a product of the debate, compromise and

litigation which shaped its growth from a broad declaration into a workable, enforce­

able statute. Arguments for and against the public’s "right to know" have influenced

many sessions of the Georgia General Assembly since the rise of the "sunshine

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movement" in the early 1950s, but the majority of judicial rulings on the issue have

been handed down only recently. The legislature virtually rewrote the act in 1988.1
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Today, the act is used by members of the press, consumer advocates and other

citizens of Georgia to gain access to a wide variety of government records. Some

records are exempted by statute from disclosure; others have been closed by the
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courts. Legislation has clarified some public records issues, but conflicts arise

constantly between the public interest in open records and the state’s competing

interest in keeping certain records confidential.

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Georgia’s open records legislation can be traced to a 1959 enactment declaring

that "all State, county and municipal records shall be open for a personal inspection

o f any citizen of Georgia at a reasonable place and time.. . 1,2 This broad declaration

had little effect on public access, however, lacking any penalties for offenders or

definitions for critical variables such as "public record" or "public agency." The act

1 Inspection of Public Records Act, No. 83, 1959 Ga. Laws 88 (amended at
O.C.G.A. 50-18-70 to 50-18-75 (1986 & Supp. 1988)).

2 1959 Ga. Laws 88.

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 has been the subject of debate, revision and compromise ever since, and despite the

efforts of its many opponents, Georgia’s open records law has grown measurably
stronger through the years.

Background: Literature Review

Many scholarly articles analyze the various state open records laws,3 but only

two directly discuss the Georgia Open Records Act. The first discussion of the

Georgia act is found in R. Perry Sentell, Jr.’s history o f public access to government

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meetings, records and elections information in Georgia.4 Sentell’s three-pronged

approach discusses the case law at length but ends at 1978 and does not include the
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actions of the state legislature or the political events which shaped the act.

Another article, by Mark H. Cohen, Assistant Attorney General of Georgia

and Stephanie B. Manis, Senior Assistant Attorney General of Georgia, adds to

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Sentell’s legal history, focusing on the impact of the 1988 amendments to the Georgia

Open Records Act.5 The authors limit the scope of the study to a post-1980 case

history, with little analysis and criticism of the act and no discussion of the act’s
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political origins.

3 See generally: Guy Wickham, "Let the Sunshine In!," Northwestern University
Law Review. 48 (1973): 68; Bob Entyre, "The Texas Open Records Act: A Section-
by-Section Analysis," Houston Law Review. 14 (1977): 398; B. Braverman and W.
Heppler, "A Practical Review of State Open Records Laws," George Washington
Law Review. 49 (1981): 720; John Watkins, "Access to Public Records Under the
Arkansas Freedom of Information Act," Arkansas Law Review. 37 (1984): 735.

4 Sentell, "The Omen of ‘Openness’," at 97.

5 M.H. Cohen and S.B. Manis, "Georgia’s Open Records and Open Meetings
Laws: A Continued March Toward Government in the Sunshine," Mercer Law
Review 40 (Fall 1988): 1.

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 3
Other states have open records histories which serve as models for the Georgia

study. Of note are a history of the Arkansas Freedom of Information Act6 and an

historical analysis of the Texas Open Records Act.7 Both contain the combination of

legal and political history which this author attempted to develop.

Government records provide background material, but transcripts of legislative

debate on the topic are scarce and vote totals are the only records available at the

Department of Archives and History. Staff members of the office o f the Attorney

General of Georgia, Michael Bowers, supplied official opinions on open records

issues for the past 30 years and helped to fill holes in the case law research. Finally,

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The Georgia Reports. The House Journal and The Senate Journal from the Georgia

General Assembly, chronicle the development of the law and its subsequent amend­
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ments.

Georgia newspapers have published news stories and editorials about matters
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relating to the Georgia Open Records Act. Several of these, particularly The Atlanta

Journal & Constitution, provide much of the background for this study. Other

newspaper sources include The Columbus Ledger-Enquirer. The Augusta Chronicle

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and The Macon Telegraph. In many instances the media accounts are supported by

opinions and observations obtained from interviews with legislators, attorneys,

government officials and reporters who were involved with the issues of the day. A

comparison of the Georgia law with the Florida Public Records Law8 and the Federal

6 Jerry Schaeffer, "Arkansas’ Freedom of Information Act: The Public Watchdog"

(M.S. thesis, Arkansas State University, 1982), 1.

7 Entyre, "The Texas Open Records Act," 398.

8 Fla. Stat. Ann. at 119.01-. 12 (West 1973 & Supp. 1974-1980).

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 Freedom of Information Act9, both widely recognized as superior open records

legislation, will augment the study with concrete proposals for improvement.

This thesis should offer a deeper understanding of the Georgia Open Records

Act by combining a review of the law’s legislative and judicial development, opinions

of the state attorney general, personal interviews and media coverage to reveal the

heroes and villains of Georgia’s "right to know" law. It is hoped that the study will

serve as a reference source for those who seek to use the act to further the openness

movement in Georgia by highlighting successful attempts to gain access to records

and by analyzing the statute’s strengths and weaknesses.

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9 5 U.S.C. at 552 (1976 & Supp. Ill 1979).

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 CHAPTER TWO

THE ORIGINS OF OPEN GOVERNMENT

Introduction

The purpose [of the Open Records Act] is not only to encourage public
access to such information in order that the public can evaluate the
expenditure of public funds and the efficient and proper functioning of
its institutions, but also to foster confidence in government through

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openness to the public.1

"The public’s right to know,” the rallying cry of the crusade for public access
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to documents and data in the possession of executive agencies and municipal govern­

ments, is the cornerstone of the federal Freedom of Information Act (FOIA).2 While
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the FOIA serves as the model for most contemporary state open records legislation, it

was by no means the first attempt to provide a statutory right of inspection of public

records. State legislatures and judicial systems have wrestled with access to govern­
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ment records since the middle of the nineteenth century,3 providing the legislative

and judicial origins of the open records movement.

Public access to government documents evolved from the principle that

democratic government is centered in the power of the electorate. For the electorate

1 Athens Observer v. Anderson. 245 Ga. 63, 263 S.E.2d 128, 130 (1980).

2 5 U.S.C. at 552 (1966), as amended, 5 U.S.C. at 552 (1986).

3 Larry Amico, State Open Records Laws: An Update 2 (Columbia, Mo.:

Freedom of Information Center of the University of Missouri, 1976): 1.

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 to remain an effective political force, it must be armed with knowledge. As James

Madison observed, "a popular government without popular information or the means

of acquiring it, is but a prologue to a farce or tragedy, or perhaps both."4

Grass-roots Beginnings

The national movement toward openness in the United States began in 1950

when the Freedom of Information Committee of the American Society of Newspaper

Editors instituted a study of news suppression. The committee was chaired by Harold

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Cross, a retired media attorney who already enjoyed a national reputation as an

advocate of open records.5 After studying municipal, state and federal agencies,

Cross concluded that access to government documents and meetings had become

virtually impossible for both the press and the public.6

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Following the disclosure of the discouraging national study, the press remained
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at the forefront of the movement for greater openness in government, a campaign

which is far from resolution. Indeed, it was not until 1950, when the first lobbying

efforts on the federal level led to the enactment of the Federal Records Act o f 1950,
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that the issue advanced at the state level.7 Sigma Delta Chi, the national organization

of journalists, joined the campaign in the early 1950s, organizing grass-roots efforts

4 James Madison to W.T. Barry, 4 August 1882, in The Complete Madison, ed.
Saul Padover (New York: Harper and Brothers, 1953), 337.

5 James S. Pope, foreword to The People’s Right to Know, by Harold L. Cross

(New York: Columbia University Press, 1953), vii-xi.

6 Cross, People’s Right to Know. 132.

7 64 U.S. Stat. 583 (1950).

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 in the local chapters which initiated the first discussions with state legislators on the

open records issue.8

The campaign for access to public records in Georgia was a reaction to the

long-established policy of secrecy at the highest levels of government. The classifica­

tion of documents, an outgrowth of World War II concerns in which the federal

government routinely prohibited public inspection of records for fear of risking the

national security, became a popular rationale for limiting access.9

State governments looked to their federal counterpart for guidance on many

legal issues, and the matter of open records was no exception. By the time the

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American Society of Newspaper Editors and Sigma Delta Chi turned their attention to

the matter, newspaper editors from across the nation were complaining that even
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routine releases such as police incident reports and court records were suddenly

classified.10 Once local and state officials realized the political benefits of operating

in secrecy, they often closed records that were previously filed as press releases and
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refused even the simplest requests.11

Georgia’s open records movement can be traced to 1956, when the Georgia

Press Association (GPA), an association of the state’s newspapers, working with its
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legal counsel and members of the Georgia Bar Association, began lobbying for a

8 Frank Luther Mott, American Journalism. 3d ed, (New York: MacMillan

Company, 1962), 861.

9 Judith Murrill Baldwin, "Access Laws: Development," in Freedom of Informa­

tion Center Publication No. 86 (Columbia, Mo.: Freedom of Information Center at
the University of Missouri School of Journalism, 1962), 2.

10 Ibid., at 3.

11 Ibid., at 4.

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 general statute providing for the disclosure o f a broad range of public records.12

Georgia’s campaign for open records was part of a national movement organized

during the 1950s by professional journalism associations and citizens’ groups that

promoted passage of legislation in states without open meetings and records laws.13

The GPA made little progress on open records during the four-year governor­

ship of Marvin Griffin. When Griffin, the former lieutenant governor, took office as

Georgia’s 72nd governor in 1955, he promised that the state government would "hide

nothing from the press."14 Instead, the Griffin administration was openly hostile to

the working press. William Shipp, state news editor for The Atlanta Constitution

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during that time, said many years later that the Griffin administration marked the

height of government secrecy in Georgia. "The Griffin administration openly touted

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the fact that they weren’t going to disclose anything," Shipp recalled. "We couldn’t

see a budget, legislative vote totals and lots of other documents that are freely handed

to the press today."15 Shipp, who described open records in the 1950s as "whatever
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you could convince someone to leak to you," said that covering the Georgia legisla­

ture then was a cat-and-mouse game of chance:

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In the 1950s and even the 1960s, the state power brokers employed
every type of subterfuge to keep their records private. When subcom­
mittees or even full committees of the General Assembly had sensitive
matters to discuss, they would meet for dinner or drinks at the old

12 "Press Fraternity to Push For Open Records," The Atlanta Journal. 1 February
1956, 26(A).

13 "Conway Elected to Head Sigma Delta Chi Unit," The Atlanta Journal. 2
February 1956, 42(A).

14 Jack Nelson, "Text of Griffin’s Speech," The Atlanta Journal. 15 January 1955,
7(A).

15 William Shipp, former state news editor of The Atlanta Journal & Constitution,
interview by author, 23 January 1992, Atlanta.

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 Dinkier Hotel, or the Mayfair or wherever they thought that we could­
n’t find them. They would iron everything out in advance, and the next
morning we would show up at the statehouse and they would conduct a
little kabuki theater. Our job was to find out what hotels the members
were staying at and try to get someone to leak the contents of the
meeting to us. Records were often slips of paper or notes scribbled on
cocktail napkins.16

Despite the secrecy, the Atlanta newspapers managed to break story after story

detailing scandals in the state government by tapping anonymous sources and

befriending various lobbyists and politicians.17 For instance, Jack Nelson, then a

staff writer covering state politics for The Atlanta Journal & Constitution, reported on

a series of financial improprieties involving waste, political influence in state purchas­

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ing and sales tax embezzlement,18 which Shipp described as "reporting without any

disclosure from official government sources."19

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The legislature’s hostility toward the press is best illustrated by its reaction to

news stories documenting illegal purchasing methods and double-dealing at Jekyll

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Island, a state-owned recreation area. The investigation revealed that former State

Sen. James Dykes gained control of most of the private Jekyll Island properties while

his business partner, William McMath, was serving on the Jekyll Island Authority
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payroll. McMath and Dykes then resold goods ordered by the state government for

use on Jekyll Island properties owned by the pair and leased to other ventures.20

16 Ibid.

17 Ibid.

18 Jack Nelson, "Here’s Good and Bad of Griffin Administration," The Atlanta
Constitution. 11 January 1959, 9(B). This analysis of the Griffin administration’s four
years in office is representative of the many scandals Nelson investigated.

19 Interview with Shipp, 23 January 1992.

20 Jack Nelson, "Jekyll Island Probe Deepens," The Atlanta Journal. 22 March
1956, 1(A).

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 10
As charges relating to the Jekyll Island scandal began to multiply, Gov. Griffin

set the tone for his administration’s press relations: he attacked the newspapers,

arguing that the incident was being sensationalized "in an attempt by the urban

newspapers to damage this administration."21 Legislators decried the stories as

"muckraking" and threatened to scrap the investigation.22

In 1957, The Atlanta Journal & Constitution reported that Griffin and several

members of the Georgia Ports Authority took a $2,118 trip to Cuba at authority

expense but conducted no state business. The governor angrily demanded a retraction,

waving a cleared check and claiming that he had reimbursed the state for his expens­

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es. When asked why he had waited eight months after the trip to reimburse the state,

he replied that "I figured some reporter would come along and want to know about
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it." The check the governor waved was from the State Executive Department,

meaning that the governor had simply taken state funds to "reimburse" the Ports

Authority.23 After a scandal-filled four years in the Governor’s Mansion, Griffin

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returned to his hometown of Bainbridge and his former job — ironically enough, as

publisher of the Bainbridge Post Searchlight.24

The secrecy and scandal that marked the four years of Griffin’s governorship
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underscored the need for public access to government records. The electorate was

infuriated by the corruption which seemingly inundated the General Assembly, and

when Lt. Gov. Ernest Vandiver campaigned for governor promising open and honest

government, he picked a popular issue. Promising that "all state records will be given

21 "Griffin Leaders Back Bills Aimed at Large Daily Press," The Atlanta Journal.
25 January 1956, p. 1(A).

22 Ibid.

23 Interview with Bill Shipp, 23 January 1992.

24 Ibid.

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 11
a thorough going over by the government, the press and the people,"25 Vandiver

won the election and made open and honest government a priority for the incoming

administration.

The Push For An Open Records Law In Georgia

Almost immediately after Vandiver took office on January 13, 1959, it became

apparent that the young governor from Lavonia intended to deliver on his campaign

promises. The governor replaced the entire membership of the ineffective Senate

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Committee on Government Operations with hand-picked Vandiver supporters, forming

a powerful committee nicknamed "the Senate Watchdog Committee" by political

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insiders.26

The Watchdog Committee, chaired by Sen. William P. Trotter of LaGrange

but influenced by Senate floor leader Carl Sanders of Augusta (who would later
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campaign for governor of Georgia), oversaw one of the most comprehensive efforts at

government reform in the state’s history.27 The committee authorized sweeping

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audits of the Revenue Department and the Department of Transportation, initiated

grand jury investigations into influence-peddling and drew up a new salary schedule
for top state officials.

25 "Vandiver Promises Honest Politics," The Atlanta Journal. 11 July 1958,

2(A).

26 "Watchdogs’ Bark Hints a Real Bite," The Atlanta Constitution. 11 March

1959, p. 4.

27 Ibid.

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 12
Most importantly, the committee helped ensure passage of the governor’s

honesty-in-govemment legislation, which prohibits state employees, including state

representatives, from profiting on outside business with the state government.28

Early in the 1959 session, Vandiver acknowledged the need for open records

legislation. In an interview with The Atlanta Journal, he said that "sickening headlines

almost daily reporting instance after instance of fraud, graft and corruption at the

statehouse shows that there is a lot wrong with the State Capitol. The pity of it is that
only the surface has been scratched."29

The governor contacted Sen. Aldridge W. Perry of Buena Vista, who had been

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discussing an open records bill with Harry Walters, secretary of the Georgia Press

Association.30 The bill was based in part on the statutes of other states and a model
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statute prepared by the national Sigma Delta Chi headquarters.31 Perry introduced

the legislation on February 5, and the bill was sent to the Senate Judiciary Committee

for discussion on February 10.32

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The General Assembly’s preoccupation with the growing civil rights battle was

illustrated by the committee’s discussion of the open records bill. Debate centered not

on how the press would use the act, but on whether the open records bill would make
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28 Honesty-In-Govemment Act, No. 81, 1959 Georgia Laws 86.

29 "Cleanup Just Starting, Vandiver Says," The Atlanta Journal. 17 January 1959,
p. 2(A).

30 "Okay Bill On Access to Records," The Atlanta Constitution. 11 February

1959, 11(A).

31 "Report on the Advancement of Freedom of Information Committee," The

Quill (Dec. 1956): 30-32.

32 Georgia General Assembly, Senate. Senate Journal. 1959 General Assembly,

737.

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 13
it easier for the Federal Civil Rights Commission to investigate voter records.33

Walters, appearing before the committee on behalf of the GPA, convinced the

committee that the act would not expand the Civil Rights Commission’s powers, but
several senators shared concerns about another provision which contained statutory

penalties for failure to disclose records.34

The original bill concluded with a clause outlining penalties for public officials

refusing to give access to records. Offenders would face impeachment or punishment

for a misdemeanor carrying a sentence of up to three months in prison and a $100

fine.35 Sen. Douglas Carlisle of Macon and Sen. Robert Culpepper of Camilla

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expressed reservations about attaching penalties to the act. But before debate on the

issue began, Carlisle asked reporters if the discussion could be "off the record from

now on."36 The reporter present refused, arguing that the committee meeting was
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public business, so Carlisle promptly moved that the committee go into executive

session. When the reporter was invited to rejoin the proceedings, the open records act
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had cleared the committee, but the penalty section had been removed during the

executive session.37

Shipp said that the removal of the enforcement penalties revealed that the
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General Assembly’s real motivation for enacting an open records law was to capitalize

on the political popularity of open government without placing themselves in great

risk should they ignore the act:

33 Ibid., note 42.

34 Ibid.

35 Ibid.

36 Ibid.

37 Ibid.

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