All levels of government—federal, state, and local—possess records that can be accessed by the public. At the federal level, these requirements are governed by the Freedom of Information Act (FOIA). In Georgia, the Georgia Open Records Act (GORA) covers the state government and all of its subdivisions, such as county and city governments.
Knowing how to use these laws can be an important tool for obtaining the necessary information to protect your neighborhood. In addition, all levels of government are required to allow the public to attend and observe their meetings.
This chapter outlines how to request records and access public meetings at both the federal and state levels. The chapter provides additional resources to aid your efforts.
Federal Records and Meetings
Getting Records: The Freedom of Information Act (FOIA)
If you are seeking documents from a federal agency, such as the United States Environmental Protection Agency (EPA) or the United States Army Corps of Engineers, you should file a Freedom of Information Act (FOIA) request.
FOIA is an extremely powerful tool. In contrast to some of the other tools discussed in the EJ Green Book, environmental groups and concerned citizens frequently file FOIA requests without needing to consult with lawyers.
FOIA is often used by non-lawyers, especially journalists, to get documents from a federal agency. An excellent guide to federal law governing open documents and meetings, the Federal Open Government Guide, published by the Reporters Committee for Freedom of the Press. The Reporters Committee also operates the FOIA wiki, which provides excellent breakdowns of different FOIA topics.
FOIA states that agencies must disclose “records” upon request unless those records fall within one of nine exempt categories. FOIA defines “records” quite broadly, including all types of documentary information such as papers, reports, e-mail, films, and photographs.
Preparing and Submitting a FOIA Request
The first step in preparing a FOIA request is identifying the agency to whom you will be sending the request.
Remember, FOIA only applies to federal agencies. Which agency you will be writing to depends on your individual situation.
For example, if you are looking for records relating to an investigation into a polluting factory by the EPA, you would direct your FOIA request to the EPA. If you are looking for records relating to the licensing of a nuclear power plant, you would direct your FOIA request to the Nuclear Regulatory Commission. If you are looking for records relating to a permit to fill a wetland for construction, you would direct your FOIA request to the Army Corps of Engineers.
Agencies are also divided into offices. While you don’t have to direct your request to a specific office, directing your request to a specific recipient (for example, Region 4 of EPA, which is the region that includes Georgia) can make for faster turnaround time from the agency.
The second step is to figure out what records from the agency you want to request.
In broad terms, FOIA requires disclosure of records, but it does not require an agency to create records, so your request should be targeted at records you think are already in the possession of the agency. You are also more likely to get a useful response to your request if it is targeted as closely as possible to the records you need.
For example, asking for “all records” related to a polluting factory may result in years of reports irrelevant to your problem, but asking for records related to EPA’s investigations of the polluting factory in the last two years or five years may result in more useful records.
The third step is to submit your FOIA request.
A FOIA request needs to be in writing. A sample request for records under FOIA is available in Appendix C-1.
Agencies are allowed to charge fees for looking for and copying the records you request. However, FOIA has a provision for waiving fees if you can demonstrate that disclosure of the records you are seeking is in the public interest.
If you are asking for records to protect your neighborhood from environmental harm, or to document pollution from an industrial facility in order to stop the pollution, your request is likely to be in the public interest. In these circumstances, include a request that the agency waive your fees. You can also ask that the agency notify you ahead of time if it anticipates that responding to your request will cost more than a certain amount, so you’re not surprised by a high fee.
If you are comfortable with computers, you can request that the documents be produced electronically, either by e-mail to you or through a file-sharing service like Dropbox. Getting your documents electronically can eliminate the copying fees the agency may charge if you do not get a fee waiver.
You can submit your FOIA request by mail, but many agencies are now accepting submissions through FOIA’s webpage (select “Start your request”) or on the individual agency’s website. Using an online submission form can be easier than writing a request and can get a quicker response from the agency.
What happens after you submit your FOIA request?
Once your FOIA request has been received by the agency, they will acknowledge that they have received it and give you a tracking number. Agencies receive hundreds of FOIA requests, so if you have not gotten an acknowledgement within a few weeks of mailing in your request, or within a few business days of submitting an online request, you should call or e-mail the agency to check in and ask for your tracking number. When dealing with agency FOIA officers, a polite and collaborative attitude can go a long way towards resolving problems.
Once the agency has acknowledged receipt of your request, the agency must make a “determination” on your request within 20 working days, unless the agency informs you that the request is unusually complex or that the agency needs some more information to be able to decide. A determination must include a statement of what documents the agency will produce or withhold and, if withheld, why the agency will not produce those documents. The determination will also inform you that you can appeal any part of the determination that is not in your favor to the agency.
If the agency fails to respond to your request in time, don’t give up!
Continue to contact the FOIA officer and ask for updates on your request. If you feel like the agency is not cooperating, you can hire a lawyer to file a lawsuit based on the agency’s failure to respond to your request.
If the agency responds to your request but refuses to turn over documents, you can also hire a lawyer to appeal that decision. Keep in mind that you must appeal an adverse determination (the agency’s refusal to turn over documents) within 90 days.
Attending Meetings: The Federal Advisory Committee Act and The Federal Sunshine Act
In the same way that FOIA mandates disclosure of records, federal agencies are also subject to the Federal Sunshine Act and the Federal Advisory Committee Act (FACA), which require open meetings and disclosure of meeting records to the public, with limited exceptions.
The Federal Sunshine Act applies to all meetings of federal agencies and Congressional committees at which official action is taken, considered, or discussed. The definition of agency here is any multimember federal authority not including courts, the military, Congress, or the governments of the District of Columbia or U.S. territories. The Act requires these agencies to:
give notice in the Federal Register of their meetings at least one week prior to the meeting, which are to be open to the public;
keep transcripts of meetings; and
disclose all records (such as minutes, agendas, reports, memos, drafts, etc.) upon request.
There are ten exemptions within the Act that restrict access to information by the public. Courts can be used to gain access to information under the Sunshine Act, or to force the disclosure of transcripts of meetings that were closed to the public in violation of the Sunshine Act, but they cannot stop any agency action based solely on the agency violating the Sunshine Act.
FACA regulates committees that advise the President or any agency or officer of the federal government. The public may obtain information from these committees in many ways. Advisory committee meetings must be open to the public unless exempted through the Federal Sunshine Act, and they must be announced in the Federal Register at least 15 days in advance. Individuals may attend these meetings and may file statements and appear before committees.
All documentation of the committee (records, reports, minutes, agendas, working papers, transcripts, drafts, etc.) must be made available to the public unless a FOIA exemption applies. The committee must also provide copies of transcripts of any proceedings to anyone who requests them and pays duplication costs.
Like the Federal Sunshine Act, FACA provides that courts may be used to force a committee to turn over information, but it cannot by itself prevent or reverse any agency action due to noncompliance with FACA.
State Records and Meetings
Getting Records: The Georgia Open Records Act
Like the federal government, Georgia has a law mandating disclosure of official records upon request by citizens. Georgia’s law is called the Open Records Act, O.C.G.A. § 50-18-70 through 77. Compared to FOIA, the Georgia Open Records Act (GORA) is easier to use and provides for a faster turnaround.
GORA applies to agencies of state or local government in Georgia, or groups of agencies. Georgia law defines “agency” to include all state government organizations, public corporations, counties, municipal corporations, school districts, cities, municipal authorities, or subgroups of those entities like departments, boards, or committees. In addition, nonprofit organizations count as agencies if more than one third of the nonprofit’s funding is provided by a direct allocation of tax funds from the government. However, nonprofit hospitals, nursing homes, or other healthcare services are exempt from GORA.
GORA gives the public access to see, inspect, and copy all “public records,” which are defined as including documents, papers, letters, maps, books, tapes, photographs, computer-based information, and computer data.
Like FOIA, the law entitles requesters only to documents that already exist, and like FOIA, some records are exempt from disclosure, generally because they have to do with medical records, criminal investigations, or personally identifiable information of citizens.
Preparing and Submitting a GORA Request
Making a request for records under GORA is easy.
The request can be made either orally or in writing, and you do not have to state the purpose of your request, only specify what documents you are seeking. Some agencies require that requests under GORA go to a specific records custodian or open records officer, so look at the agency website or call and ask who to direct your open records request to.
It is generally smart to send a request in writing so you can show exactly what you are asking for and prove that the request was sent on a specific date. Also, you are only able to file lawsuits to enforce your request if the request was made in writing.
Once the agency receives your request, they must produce the records you requested within three business days. If the records are stored electronically, you can obtain copies either of the electronic files or printouts. If the agency is not able to produce the records within three business days, then within that three-day period the agency must provide a description of the available records and a timetable for their availability.
Like FOIA, agencies can charge for the copies of records you receive and for the time it takes the agency to search for and find the records. Agencies cannot charge for the first 15 minutes of search time, and they must charge remaining search time at the salary rate of the lowest-paid full-time employee who has the necessary skills to perform the search for your request. Agencies may only charge up to 10¢ per page for copies, or for the cost of electronic media (like a CD) on which copies of records are produced.
Note that if the agency predicts the costs of responding to your request to be more than $25, the agency must notify you within three business days and provide an estimate of the costs. In this case, the agency is allowed to wait and not work on your request until you have agreed to pay the estimated costs. If the agency estimates the costs of your request will exceed $500, they may ask you to pay before beginning work on your request.
If the agency decides an exemption to GORA applies to your request, the agency is required to provide any non-exempt portions of the records you have requested and must notify you of the specific reason for the exemption.
If you think records have been improperly withheld, the Georgia Attorney General’s office has an optional informal mediation process to try to help citizens resolve open records and open meetings complaints without having to file a lawsuit. The mediation process is free, and you do not need an attorney; the Georgia Department of Law will have an attorney look at the situation as a mediator and try to negotiate a resolution between you and the agency. You can file a complaint with the mediation program.
If you are not successful in resolving your problem through the mediation program (or if you do not want to try mediation), you can file a lawsuit against the agency. If you win the lawsuit and the Court finds that the agency’s actions were “without substantial justification,” the Court can make the agency pay your attorney’s fees and costs of filing the lawsuit.
Attending Meetings: The Georgia Open Meetings Act
Georgia’s Open Meetings Act, O.C.G.A. § 50-1-41 to 46, is similar to the federal open meetings laws in that it mandates that all meetings of state and local government bodies be open to the public unless an exemption applies.
Under the Open Meetings Act, Georgia’s governmental bodies must provide reasonable notice of all meetings. The act applies to city councils, county commissions, regional development authorities, library boards, school boards, commissions or authorities established by state or local governments, planning commissions, zoning boards, nonprofit corporations operating public hospitals, and most committees of the University System of Georgia that are not specifically related to education. Note what this list does not cover: the Georgia General Assembly. While the Georgia Constitution requires that state legislative sessions be open to the public, the state legislature’s committees and subcommittees are not covered by the Open Meetings Act.
The Open Meetings Act covers most meetings of governmental bodies: any meeting where official action is taken or the discussion of official business or policy takes place must be open to the public. This applies to meetings held electronically as well: phone calls or online meetings must be open to the public. Meetings must be open if any official business or policy is discussed, even if no action is taken at the meeting.
The only meetings that are exempt are related to law enforcement, lawsuits, purchasing of property, and personnel discussions. For exempt topics, the agency may go into “executive session,” which means that portion of the meeting is closed to the public. However, agencies may not make final decisions on personnel or real estate matters in closed meetings. The final vote must be held in a public meeting.
At public meetings, the public must have full access and you may make video and audio recordings of the meeting. Agencies must inform the public of meetings by providing notice to the local newspaper at least one week in advance, and at least 24 hours in advance of emergency meetings.
If you are not able to attend a meeting, agencies are required to keep minutes of all public meetings (a written log of what happened at the meeting) which must be made available to the public for inspection no later than immediately after the next agency meeting. The agency must also provide a summary of the meeting within two business days after the meeting.
If an agency does not abide by the terms of the Open Meetings Act and passes a resolution, rule, ordinance, or other official action at a meeting that was not open to the public, that action is invalid and not binding.
If you want to challenge an action taken at a meeting that was improperly closed to the public, you must file a lawsuit challenging that action within 90 days of the date the action was taken, or within 90 days from the date you found out about the action, as long as it has not been more than six months. After six months from the action, the window for challenging it under the Open Meetings Act has closed.
Like GORA, if you are successful in your lawsuit and the Court finds that the agency’s actions were “without substantial justification,” the Court can make the agency pay your attorney’s fees and costs of filing the lawsuit.
The Reporters Committee for Freedom of the Press publishes the Federal Open Government Guide, which provides an excellent guide to using FOIA and Federal open meetings laws.
The Reporters Committee also provides the FOIA Wiki, which breaks down the components of the law in a useful wiki format. The FOIA Wiki is a great tool for figuring out how exemptions or other specific portions of the law work.
FOIA.gov provides online tools for filing FOIA requests. Some agencies accept submissions through the site and others do not, preferring to receive online requests through their own website. When you are preparing to file a FOIA request with a federal agency, check the FOIA website and the agency’s website to find the right place to file your request. If you can’t tell, you can always call the agency and ask how to file a FOIA request with them. Remember that FOIA officers and state agency recordkeepers are the ones standing between you and the documents you are seeking, so it’s always good to treat them respectfully.