AJC Watchdog: Will rule change make Georgia courts less public?

When it comes to government transparency, Georgia has a spotty track record.

Take, for example, the Georgia General Assembly, which writes the open meetings and open records laws but conveniently exempts itself from both.

But the state’s courts are a different animal. Georgia’s record for openness in its court system is pretty good, especially when it comes to allowing the media in with their cameras and recording devices. Through a combination of state law, legal precedent and a broadly written judicial rule, judges have been trained to accept that their courtrooms are open to that kind of scrutiny.

That’s why a proposed rewrite of a rule governing cameras and recording equipment inside trials is making some sunshine activists nervous.

For years, getting a camera or a recorder placed inside a trial has been a pro forma exercise. When asked, clerks generally respond, “Just fill out a Rule 22,” referring to the Superior Court rule which takes as gospel that cameras and recording devices are allowed in courtrooms with proper restrictions.

The proposed rewrite of that rule, which has gone through several drafts over the past year, is twice as long as the current rule and adds a lot of new qualifiers as it attempts to roll together the desires of the media, lawyers and random observers who have been itching to try out Facebook Live on their smart phones.

“The mainstream media has never been the issue,” Cobb County Superior Court Judge Stephen Schuster told me. “It’s the guy wandering through trying to record the attorney talking to the client, the guy shooting a picture of a witness in a criminal case, the neighbor shooting the lady confessing to adultery.”

Citizen journalist worried

Schuster is one of the judges tasked with drafting the new rule. He said the proliferation of smart phones, which can not only take pictures or record video but also can broadcast them across social media networks, is a real concern among judges.

“I know you won’t shoot jurors. When we are off the bench, you won’t be shooting attorney-client stuff,” he said, referring to the professional press. “It really is the concern about the lay person at this point.”

Schuster said he doesn’t have a problem with “citizen journalists” either, but the proposed changes have folks like Nydia Tisdale on high alert.

Tisdale has made a name for herself in Georgia for pointing her video camera at politicians and government officials from city councils to candidates for the U.S. Senate and uploading them to her website. She’s been tossed out of more meetings than most Americans ever go to, so she understands the stakes.

Tisdale is worried that the new rule will reopen the question about whether people like her — watchdogs without a billion dollar media corporation backing her up — should be able to set up their cameras in a Georgia court.

“I believe it’s a public space that should be open to the public and open to recording,” she said.

Changes to court rules are public, but like so many things in government only a handful of people really know much about it. I’ve filed Rule 22 forms numerous times over the years, but I wouldn’t have known the rule was being revised had Tisdale not given me the tip. And she likely wouldn’t have known about plans to change the rule had her own attorney not brought it up.

I asked the Administrative Office of the Courts for comment on the proposed changes and even they were unaware of it.

‘It’s our courthouse’

The proposed new rule contains a number of conditions where recording is not allowed that are not in the current rule. One that concerns Tisdale is a prohibition against recording when the judge is not seated.

A lot goes on in a courtroom while attorneys, witnesses, plaintiffs and defendants are waiting on the judge. With her camera rolling, Tisdale has caught unguarded discussion between attorneys in a high-profile divorce case joking about their fees and tender moments of witnesses and victims embracing.

Judges and lawyers are trained to ignore that stuff because, by and large, it’s not admissible. But for the rest of us, it is part of the system and Tisdale doesn’t want a new rule obstructing that.

“It’s our courthouse,” she said.

Meanwhile, judges like Schuster are worried about conniving spectators capturing private conversations between attorneys and their clients, or the admissions of underage witnesses in family court and rebroadcasting them to the world.

Those concerns are problematic, since trials generally are open to the public and anyone could overhear a too-loud conversation between an attorney and a client and tell the world about it on Facebook, if they want.

Proposal is open for public comment

Some folks I’ve talked to suggest the reworking of Rule 22 is a solution in search of a problem. Under the current rule, anyone wishing to record, photograph or broadcast has to file a form first, so judges already have the power to shut down unauthorized recording and hold perpetrators in contempt.

The proposed rule also goes beyond both the current rule and state law by listing various ways a judge can approve recording of a trial but “restrict” elements, such as ordering that a defendant not be photographed or a witness’ testimony not be recorded. This is a practice in some courtrooms already, but the new rule gives it the cover of legitimacy by offering a la carte exclusions for judges to pick from.

I believe Schuster when he says this is an effort to balance the desire for open courts with concerns over protecting vulnerable people from intimidation or harassment, but lumping all these concerns into a new rule runs the risk of chilling access more generally.

If the rewrite of Rule 22 results in less open courts, then Georgia is bucking a trend. Technological developments and a grassroots-level push for more transparency have created more coverage, and I’d argue, a greater understanding of the judiciary.

Even the federal system, long the least transparent branch, is changing. When the 9th U.S. Circuit Court of Appeals heard oral arguments over President Donald Trump’s immigrant travel ban, the court streamed the audio of the arguments live from its own website. That West Coast court and the 2nd Circuit in New York regularly allow broadcast coverage of oral arguments, although most federal courts still do not.

The revisions are still very much a work in progress. The proposed rule has been changed a number of times, with substantial input from the AJC’s own lawyers. On Wednesday, Schuster met with a state bar committee to go over more concerns from the legal community.

The Council of Superior Court Judges is responsible for the changes and they won’t vote on them until July at the earliest. The proposed rule is on the web at georgiasuperiorcourts.org and is open to public comment until then.

As AJC Watchdog, I’ll be writing about public officials, good governance and the way your tax dollars are spent. Help me out. What needs exposing in your community? Contact me at cjoyner@ajc.com.

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