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Just How Open Should Superior Courts Be?

The rules that govern court recordings are up for debate.

(TNS) -- The future of just how open superior courts should be is a topic of debate this week for the state Council of Superior Court Judges at its conference at the King & Prince resort on St. Simons Island, where judges are assessing changes to Uniform Superior Court Rule 22, which governs recording devices in courtrooms.

The rule change came about as some jurists worried the general public, using Rule 22 waivers, would catch conversations that would otherwise be private or record video or audio of jurors. However, judges hold discretion in granting Rule 22 waivers already, usually approving requests on a case-by-case basis.

In the last publicly published version of the Rule 22 amendment, a key paragraph states, “No use of recording devices while the judge is off the bench: A person may use a recording device in a courtroom only when the judge is on the bench, and use of a recording device must terminate when the judge leaves the bench except for celebratory or ceremonial proceedings ….”

A recording device, as defined by the rule amendment, is any “capable of electronically or mechanically storing, accessing, or transmitting sounds or images. The term encompasses, among other things, a computer of any size, including a tablet, a notebook, and a laptop; a smart phone, a cellphone or other wireless phone; a camera and other audio or video recording devices; a personal digital assistant (PDA); or other devices including those that provide internet access; and any similar items.”

The rule as originally adopted specifically regarded recording by reporters in the mid-1980s. Electronic recording devices substantially changed between 1985 and 2017.

But there were worries about the judges moving to limit access. Already, news outlets could have traditional photos and videos of a defendant entering the courtroom knocked out, should the judge not be in their seat at that time.

In a June 6 letter to the Rules Committee of the Council of Superior Court Judges, Peter Canfield — an attorney with the firm Jones Day and on behalf of the Georgia First Amendment Foundation — expressed the foundation’s thoughts after first complimenting the council that rule revision was prudent in light of technological changes.

He wrote that the GFAF “is concerned, however, that the amendments now proposed, as well as the trajectory of these and other Rule 22 amendments that have been considered by the Council over the last few years, are not on the right track. Ideally, court rules should be short, simple and easy to understand and administer. The proposed amendments to Rule 22, however, have become anything but.”

Canfield goes on to state the amendment as proposed in the latest publicly accessible text does not include “the presumption that recording and use is permitted.” As such, it would conflict with state policies regarding open government and public court hearings.

A request for comment from Glynn County Superior Court Judge Stephen Kelley, who takes his spot as president-elect of the council this week, was not returned as of press time Monday.

There was some amount of bad news already for open-government advocates as Cobb County courts, which record legal proceedings through pre-mounted cameras, cut the public’s ability in May to receive audio with that video because it could catch off-hand remarks by judges. If you want to hear the audio, you have to sign a confidentiality agreement. According to a report by the Atlanta Journal-Constitution, recordings came to light of a Cobb County Superior Court judge discussing case matters with prosecutors without defense attorneys present, which could conflict with judicial conduct rules.

When a defense attorney tried to obtain these recordings from February, he was told by a Cobb County attorney that only the video would be available, and the audio was now considered a court record and not subject to the state open records law.

After discussions regarding language of the Rule 22 amendment Monday, a vote on whether to adopt it is expected Wednesday at the conference.

©2017 The Brunswick News (Brunswick, Ga.) Distributed by Tribune Content Agency, LLC.