The Georgia Gestapo Bill

A last minute amendment to SB 12 would shield your local police from ever having to tell you what they're doing.

Every year, someone in the Georgia Legislature tries to sneak something sinister through on the last day, hoping that if they move fast they can get it done before opposition can rally and kill it.

This time, it’s language added to a bill that would gut the Georgia Open Records Act, so that police departments can blow even more smoke up our asses when we ask them to explain themselves.

Journalists have been navigating police games over initial incident reports for years. The report is supposed to explain why a police officer has responded to a call when a crime occurs, particularly if an arrest is made. It’s basic. It’s what a cop can bang out in the driver’s seat of a patrol car in between calls.

Police agencies are supposed to provide an initial incident report immediately if one is available. But the law gives an agency a “reasonable amount of time, not to exceed three business days,” to provide the report. As a practical matter, every agency I have ever asked for one takes all three days, because they know that most journalists are chasing squirrels all day and will probably forget about the story with sufficient delay.

But Sandy Springs Police Department’s approach to filing those reports has been especially egregious. Officers would write a one-sentence note in the narrative, then file a more detailed narrative as a supplemental report that the city denied the public and the media access to. Often, that one-line would be the first line of the narrative on a different sheet.

The initial incident report is the bedrock of the Georgia Open Records Act. The contents of that report is the product of years of careful negotiation between police agencies, public officials, journalists and lawyers. It is often the difference between having public safety that is accountable to the public and a secret police that can act with impunity. We can’t see patterns and practices without pulling these records.

Appen Media — the Sandy Springs Crier — sued Sandy Springs over these shenanigans. The city won in superior court, but the Georgia Court of Appeals overturned that ruling three weeks ago in Appen’s favor.

“Whether a narrative report prepared at the same time as an incident report actually constitutes part of that initial incident report is a fact specific inquiry. In some cases it may, and in some cases it may not. But we cannot say as a matter of law that a narrative report is not a part of the initial incident report subject to disclosure under OCGA § 50-18-72 (a), based upon the record before us, which was simply not fully developed as to that issue,” the ruling states.

In concurring language, appellate court chief justice Christopher J. McFadden said that he “would hold that this practice is an improper circumvention of the Act and that the responding officer’s full narrative about his or her initial response to the incident also constitutes an ‘initial incident report’ subject to disclosure under the Act.”

The ruling effectively ends the practice of police subverting the law and hiding their narratives from the public. And we can’t have that now, can we.

SB 12 was originally quite brief, meant to address a Georgia court decision which required government contractors to be responsive to open records requests. The bill requires those requests to be directed to state or local agencies and not the companies themselves. Which, honestly, is probably fine.

The language added to the bill would codify the practice of no-data police narratives. Fittingly, the changes landed in the dark, with a last-minute amendment to a bill that has already passed the state Senate, with provisions that no one has held a hearing on, with one day to go before the end of the legislative year.

“This change would let any police department do what Sandy Springs was doing, if they want,” said Sarah Brewerton-Palmer, president of the Georgia First Amendment Foundation … and occasionally my attorney when I need to sue someone over open records or open hearings.

Admirably. State Rep. Rob Leverett, vice chairman of the Rules committee, took questions. The language is a reaction to the Sandy Springs police ruling, he said. “I think that the current law strikes a balance between the public's need to know and the needs of law enforcement to prosecute their cases, and that's what this amendment tries to preserve and clarify,” he said.

The House Rules Committee made the changes in a 7 p.m. meeting yesterday with scant warning. “This is just an opportunity to kind of ride along and try to fix the problem that needs fixing,” Leverett said. “I think the changes in my view — and you're certainly free to disagree — but the changes in my view were not terribly substantive.”

Leverett said the changes came from the Prosecuting Attorney’s Council of Georgia. Pete Skandalakis, executive director of the council, said the legislature approached his office for proposals to amend the open records act. But their intent was to codify what an initial incident report should contain, and that they’re going to work with media attorneys to craft proper language. Both Skandalakis and Leverett said the bill had been sent back to Rules and was unlikely to advance as it is before Sine Die.

Notably, the rest of the bill’s changes create more exemptions to open records for lawmakers. The General Assembly is already immune to the Act. This would shield any communication legislators made with other branches of the government as well. Leverett could not say if, as a practical matter, all your city councilperson or county commissioner or mayor or whoever else would need to do to keep a document out of public view is to CC their state rep on the email under the bill’s current language.

It also shields records of entry or exit of people from government buildings from the Act. Leverett cast this as a physical security issue. But this change would prevent the kind of records requests that led reporters to the security camera footage of Trump partisans entering the Coffee County elections office to play with elections equipment, or this AJC story that noted that Public Service Commission officials weren’t actually showing up for work.

“When we're kept in the dark, or when the comings and goings of lawmakers is opaque and their communications are under protection, it's easier to get away with wrongdoing,” said Nora Benavidez, legislative co-chair for the Georgia First Amendment Foundation.

While legislators at the state level are contemplating these changes, it’s worth considering the national context. Immigration cops have scooped up people and deported them without due process. A Columbia graduate student and foreign national is sitting in a detention cell for protesting the war in Gaza, which is not a crime in America. And Elon Musk has used DOGE to illegally obtain tax records.

“The irony to me is that we're, we're seeing a much broader national climate right now that is riddled with blatant privacy violations,” Benavidez said.

Autocracy is the state in which the government can know everything it wants to about what you’re doing, while you can know nothing you want to about what it is doing. We should not accept this in Georgia, or anywhere.