HB 397: Attorney General Sam Olens’ Response to ‘Bait & Switch’
by PV
Attorney General Sam Olens responded to our “Part 1” Alert with the following emailed response:
“New sections f, g and h were predominantly written by counsel for the AJC and Georgia Press Association to make computer records more accessible to the public. Fire your researcher.”
PV Responds: The Research Team of Political Vine examined the “new and improved” language AG Olens refers to in his emailed response prior to issuing Alert #1, and discovered that (regardless of who did or did not write it) it does not cover by specific language (which is how a LOT of Georgia law is interpreted by government attorneys up and down this state on the subject of open records requests) all aspects of electronic delivery.
The new Section (f) reads as the following: “As provided in this subsection, an agency’s use of electronic record-keeping systems must not erode the public’s right of access to records under this article. Agencies shall produce electronic copies of or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. An agency shall not refuse to produce such electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency’s computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data. A requester may request that electronic records, data, or data fields be produced in the format in which such data or electronic records are kept by the agency, or in a standard export format such as a flat file electronic American Standard Code for Information Interchange (ASCII) format, if the agency’s existing computer programs support such an export format. In such instance, the data or electronic records shall be downloaded in such format onto suitable electronic media by the agency. No public officer or agency shall be required to prepare new reports, summaries, or compilations not in existence at the time of the request.”
PV’s Comment on the New Section (f): It does not state “how” the information is to be delivered. It only provides that the records being maintained by an agency in electronic format “shall be provided.”
As far as this new section (f) is concerned, an agency is required to extract the data, but they could choose to require that the information be placed on a disk, money charged for that disk, and money charged for mailing that disk and/or requiring anyone to come in and physically sign for the disk…and that would be in accordance with the specific wording of the law…when it may be easier (and much less expensive) to provide the data via emailed attachment.
The original law stated it this way: “…records maintained by computer shall be made available where practicable by electronic means, including Internet access.“
There is a specific meaning to the phrase “shall be made available” that is not present in any language of the new Section (f).
The new Section (g) states the following: “Requests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.”
PV’s Response to Section (g): Again, this covers nothing regarding a specific requirement for how the information requested is to be delivered.
The new Section (h) states the following: “In lieu of providing separate printouts or copies of records or data, an agency may provide access to records through a website accessible by the public. However, if an agency receives a request for data fields, an agency shall not refuse to provide the responsive data on the grounds that the data is available in whole or in its constituent parts through a website if the requester seeks the data in the electronic format in which it is kept. Additionally, if an agency contracts with a private vendor to collect or maintain public records, the agency shall ensure that the arrangement does not limit public access to those records.”
PV’s Response to the new Section (h): The language specifies that “an agency may [emphasis added by PV] provide access to records through a website accessible by the public…”
Ladies & Gentlemen, a “website” is not the same element in the world of the Internet as an “email communication” is.
There is no language specific to addressing the concept of email delivery of information, nor is there specificity on the “shall” aspect of requiring an agency to provide the data via the web or Internet where practicable.
If Senators Hamrick, Cowsert, Crosby, McKoon, Stone, Bethel, Fort, Carter (or anyone else) on the Senate committee reviewing this law wishes to make this law as equal or better to what it once was, you would do the following:
Change #1) Strike the word “may” anywhere it appears and replace it with the word “shall.” Any lawyer will tell you that there is a legal distinction in interpretation of the word “shall” compared to the word “may.” (Any lawyer denying this fact may need their bar license reviewed.)
Change #2) Insert the language of the former Section (g) back into this bill: “…records maintained by computer shall be made available where practicable by electronic means, including Internet access, subject to reasonable security restrictions preventing access to nonrequested or nonavailable records.”
Because, again, “Internet access” covers both “web-based access” and “emailed access” while “web-based” only covers a Website. From experience, PV knows that lawyers for government agencies always look for any way in which to deny access to public records.
No one should have any problem with the aforementioned language revision.
PV Note To AG Olens: Sir, you stated in your response that this new language was “predominantly” written by counsel for the AJC and the Georgia Press Association. Giving you the benefit of the doubt, your office now has an opportunity to re-examine the language of HB 397, and make these two corrections that need to be made.
And, even if counsel for the Press Association were to fight it, you know we’re right, and for the people of Georgia, you should act on that basis because everyone knows there is a difference between “shall” and “may,” and that there is a difference between “Internet access” and “Web-based access.” Even if you were not conscious of the issues with this specific language before, now you have an opportunity to correct this in the law before it is considered by the Senate.
Thank you for your time and attention to this matter of utmost importance.
March 23rd, 2012 at 1:51 pm
“Denise, I’ve known you over 40 years. I’ve known you to be a person of the highest integrity. You stand for truth and would never waste valuable time nor provide information that is anything but truthful. I am saddened to learn about these leaders of our esteemed educational institutions who draw convenient chalk lines they can erase and redraw for their own personal gain. When big money and actions are questioned, people sit up and ponder. Stay with your platform of courage and Truth and that which is wrong shall be made known; that which is Truth shall also.”