UGA pulls plug on government transparency work

By Amber Perry/Appen Media

Journalists across Georgia are mourning the loss of a crucial service in a new direction taken by the University of Georgia School of Law’s First Amendment Clinic.

Going forward, its staff will no longer provide direct advocacy for open records or open meetings, sources of information that journalists and citizens use to find out what’s going on behind the facades of government.

The First Amendment Clinic was formally launched in August 2020 to “defend and advance the rights of free speech, press, assembly, and petition via regional litigation and advocacy” and to provide law students with real-world experience on First Amendment issues, according to a UGA news release.

n early 2023, the Clinic began reaching out to news organizations around Georgia, ramping up direct advocacy work related to open records after receiving more funding.

The service was free.

“‘Okay, what’s the catch?’” Dan Whisenhunt, publisher and editor of Decaturish, recalled. “I was told, ‘No catch. There’s just money going around. People really care about this sort of thing. So, we’re doing the work.’”

The resource saved Whisenhunt thousands of dollars in legal fees, a big deal for a small business that saw its first full-time employee after seven years of serving residents in Decatur and surrounding areas in Metro Atlanta.

Since Appen Media filed its lawsuit last May against the City of Sandy Springs over access to information on police incident reports, the newspaper has spent more than $35,000 in legal fees.

That figure continues to increase, as Appen Media seeks an appeal to a Fulton County Superior Court judge ruling in December that said it failed to prove it is unlawful for the Sandy Springs Police Department to withhold supplemental information about a crime that police file in a subsequent report, often on the same day and gleaned from the same initial visit to the scene.

The lawyer on the case charges $285 an hour.

Free counsel

Now, Decaturish has three full-time employees, and the business is profitable, punching above its weight, but Whisenhunt said money is sent toward general expenses and personnel.

“Every spare dollar I have I spend on news,” Whisenhunt said. “News costs money, and it ain’t cheap to produce, especially in this market where we’re in an arms race, where we’re trying to keep people paid well enough so that they can actually live near the communities where they're covering.”

Whisenhunt said the Clinic had its eyes on two to three Decaturish stories. The Clinic has and continues to offer pre-publication review, giving legal guidance to journalists on stories before they go to press.

He also said the Clinic became involved in his request for open records regarding a fire that targeted a gender-affirming medical clinic in downtown Decatur.

“Decatur has been withholding those records for forever under an exemption in the [Georgia Open Records Act],” Whisenhunt said. “That exemption is pretty broad … that probably should be revisited.”

Ultimately, the City of Decatur did not provide the records to Whisenhunt. But, he said the Clinic continued to fight and advocate on his behalf.

He also said the group had been more accessible than other national organizations that provide the same service and went further than the Office of the Attorney General’s Open Government Mediation Program.

“I don’t know what having an attorney on staff is like, but that’s what it’s felt like to me,” Whisenhunt said.

UGA transfers lawsuit

Remaining an educational resource, University Spokesperson Greg Trevor said the Clinic will “refer open records/open meetings matters that need direct advocacy and representation to qualified legal professionals or agencies.”

The timing of the refocus coincides with UGA’s decision to transfer the lawsuit filed on behalf of nonprofit Atlanta Community Press Collective and Lucy Parsons Labs against the Atlanta Police Foundation.

The Atlanta Police Foundation, a nonprofit that supports the Atlanta Police Department and works closely with the City of Atlanta, is largely responsible for funding the $90 million Atlanta Public Safety Training Center set for 85 acres of the South River region in DeKalb County.

The suit, now under the wings of a new pro bono attorney, alleges that the foundation failed to respond to open records requests related to the project, dubbed “Cop City” by critics who say it will fuel police brutality and contribute to climate change by destroying a vital forest.

Sam Barnes, researcher with the Atlanta Community Press Collective, said plaintiffs were told about the transfer and that the Clinic would “refine its purview” in an early April meeting, and it was at the request of Bo Rutledge, dean of the UGA School of Law.

“I personally have some of my own suspicions on the matter,” Barnes said.

Barnes first requested assistance from the Clinic in fall 2022 after the collective received a “nonparty request” for documents from former Blackhall Studios CEO Ryan Millsap’s attorney, regarding a lawsuit filed by environmental groups that challenged DeKalb County’s swap of parkland with the developer.

With the Clinic’s legal representation, the collective prevailed in the free-press battle.

Necessary step

Barnes continued to seek support from the Clinic in 2023, with calls at least once a week for assistance on open records and open meetings.

It provided guidance to Barnes on entrance to the Capitol when SB63 was being weighed, which has since been signed into law by Gov. Brian Kemp to broaden the scope of offenses requiring cash bail and to prohibit individuals and organizations from posting cash bail more than three times a year, with an exception for bail bondsmen.

Barnes, who uses they/them pronouns, said officials would not grant them a one-day media pass, though it was an open meeting.

“The clinic was very helpful in making sure that happened, and helping me understand what my rights were,” Barnes said.

While the collective is in a better financial position now, Barnes said there was no way for the news organization to afford the level of support the Clinic provided early on, which enabled its work to be what it is today.

Barnes said they have become a better reporter, learning how to negotiate, asserting new knowledge. They began to lean on the group less.

But, Barnes described the unfortunate and often necessary step of leveraging a lawyer’s letterhead on a document to government agencies that provides details of the law they already know.

“And, then it’s like, ‘Oh, shucks, I guess we have to comply with the law now,’” Barnes said.

Appen settles lawsuit with Roswell over Open Records violations

The Clinic’s decision to move away from direct advocacy has affected Atlanta Community Press’ publishing schedule. Barnes is sitting on a story that has been ready to go for months, but an open records request dating to November has not been filled after back-and-forth with a government agency.

Now, Barnes is figuring out how much it will cost to get legal support, scheduling meetings with attorneys.

“I’m more than happy to pay an open records lawyer an equitable rate, the rate they deserve for the work,” Barnes said. “But, it’s basically going to come down to can we afford to publish this story that is a story that absolutely deserves to be told.”

Empowering citizens

Without the First Amendment Clinic, the McIntosh County Commission may have continued to hold open meetings in the county courthouse — a location that had become an issue because access is under the discretion of the sheriff.

The Current, a nonprofit news organization that covers counties in Coastal Georgia, sought legal assistance from the Clinic when the sheriff barred the public from taking purses and recording devices into McIntosh County Commission meetings. The meetings concerned rezoning Hogg Hummock on Sapelo Island, the final intact Gullah Geechee community on the Atlantic Coast.

The County Commission would go on to approve larger dwelling sizes up to 3,000 square feet, double previous sizes allowed, posing a threat toward generations-old families who could be taxed off their land.

“You have, you know, about 150 people there representing Sapelo Island, basically saying, ‘We don’t want this to happen,’ … and there was no way to record it except with a pen and paper, and that’s against the law,” said Susan Catron, managing editor for The Current.

Prohibition on recording devices continued through two meetings, lifted on the third, after the Clinic wrote a letter to the county attorney, the County Commission and the Attorney General’s Office.

Commission meetings have been permanently moved to Darien City Hall because of the combined effort of The Current and the Clinic, though the public must be a paid subscriber to the local cable provider to watch meeting recordings.

“We’re working on that part,” Catron said.

Catron said the Clinic had to step into a number of open records situations for the three-and-half-year-old startup, preceding the Sapelo Island zoning case.

“It’s not good for the citizens,” Catron said of the Clinic’s decision to quit direct advocacy. “It’s not good for the journalists, but it’s mostly not good for the citizens.”

The issue is bigger than journalism, she said.

“It’s ensuring everyone’s rights to transparency and documents and the work that their government is doing.”