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When we talk about "Kirby's Law", let's be honest

Georgia's new open records provision tailored for collegiate athletic departments is a bad idea. But let's not pretend it's the end of the world. Or even appreciably worse than the status quo.

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Georgia football fans are starved for a national title. Many Georgia football fans can be found in the corridors of the state capital in Atlanta. Ergo, many title-starved football fans are roaming the halls under the golden dome every late winter. Therefore it should come as no surprise that the Georgia legislature provides a friendly environment for the passage of legislation which might, just might, give the Georgia Bulldogs a chance to win a national title.

And so it should not be terribly surprising that the Georgia legislature passed a bill (really an amendment to a bill) which now gives state athletic departments 90 days to acknowledge their receipt of information requests (commonly called Freedom of Information Act or "FOIA" requests) rather than the prior statutory 3 days. Journalists, including journalists with SB Nation, have come out swinging against this. I want to be clear about something right up front: I agree with them. At its heart this new law is designed to keep information hidden from the public for longer. Anyone, whether the bill’s proponents, the Lieutenant Governor, or Kirby Smart who tells you differently is lying right to your face.

There might be a justifiable interest in putting these requests off to another day. One cited right after the passage was that in the days following National Signing Day athletic departments are inundated with requests aimed at finding out a) what they spent on recruiting, b) how they spent it, c) what players it was spent in the general direction of, and d) whether Jim Chaney had the club or the reuben when he stopped for lunch on the way home from Jake Fromm’s house.

I can sympathize to some extent with the Athletic Association employees in charge of running down that minutiae in addition to, you know, actually running a college athletic department. But here’s the crazy thing: there are a half dozen schools this helps along with the University of Georgia. Georgia has the technological and human resources to respond to these type of requests, and a staff which deals with them constantly. Kennesaw State does not. And while the Owls are less likely to get the volume or variety of FOIA requests the Bulldogs do, the law benefits them, too.

But this misses the larger point about why this bill isn’t a new, insidious evil set loose on the landscape. For that you have to look at how FOIA requests are processed in Georgia under the prior law, and the new one. It goes like this. If I want information from a public body I send a request, a very specific request, telling them what I’m looking for. Under the prior law, a University athletic department would have 3 days to politely acknowledge my request, provide any responsive documents which were immediately available, and then tell me how interminably long it would take them to actually get me the rest of the information (or to break the news that they couldn't provide it).

And here’s where opponents of the new law are missing the boat. Under the existing law in Georgia, and almost every other FOIA law in the nation, there was no firm deadline on how long they had to get me all the documents. Courts have awarded penalties (usually attorney’s fees) in cases where the institution is clearly stonewalling. And a court may make the state show what affirmative steps it has taken to gather and provide the information. But at no time has anyone in the UGA Athletic Association been under a duty to get me all  the information which I seek within 3 days. Never. And there is no firm guidance regarding what information is immediately available.

This law, at least as I read it, doesn’t eliminate university officials’ duty to respond to my request in a reasonably timely manner. It gives them 90 days to tell me they a) don’t have the information I requested, b) need additional information to determine whether they have it, c) won’t be turning it over because they don’t have to (for reasons of student privacy, for example), or d) will get it to me sometime before the Big Bang Theory gets cancelled.

This new law does not prevent the UGA Athletic Association from obfuscating and buying time. Nor however does it allow them to do so where they couldn't before. That’s in the nature of public records law. In my experience the people who review/fill these requests (spoiler, I used to be one of "those people") generally feel like they have more important things to do than letting reporters know whether donors popped for Kirby Smart to get an in-flight haircut on a recruiting trip (spoiler, you’ve seen his hair so you know they either didn’t or should ask for a refund).

Should information about what goes on within the athletic departments of public universities be available to the public? Yes. As a general rule, do I feel this information should be more available rather than less? Hell yeah. And I am deeply troubled by the fact that the bill carves out an exception for University athletic officials which is not available to the harried, overworked employees of other state agencies. I’m pleased that the Department of Corrections, for example, still has to let me know something within 3 days (which is good). I don’t like the fact that athletic departments are being treated differently than other state agencies, and I fully recognize what the "optics", to use a public relations term, are.

But this law does not create some new veil of secrecy which forever hides information from Georgia citizens which was otherwise available at the flick of a wrist. Also bear in mind that there’s nothing in this new law that requires athletic associations to wait 90 days before responding. If I make a fairly simple request for readily available information I’d still expect that the folks in Athens will probably get it to me within a few days, as before.

And that’s before we consider the fact that respondents might, just might, now send the documents on some requests along with the acknowledgement. I haven’t made any FOIA requests to the University of Alabama’s athletic department, which under Yellowhammer State law has a  nebulous "reasonable time" to respond. But I'm willing to bet that journalists requesting records from the University of Alabama sometimes also have the experience of asking for something and getting it sooner than they expected because, hey, it wasn't that hard for somebody to find the right file on the computer and send it.

If someone within the UGA athletic association were inclined to do something nefarious this law wouldn't allow them to do it any more than the prior law would prevent it. The content of what is available is completely unchanged. The content which is shielded from discovery is the same.

Don’t blame the Georgia legislature for the ills of your state. I’ve seen more than one commentator note that this law may make it easier for other state legislatures to lengthen the response times under their own sunshine laws. Again, this is erroneous because Georgia’s law doesn’t lengthen the response time. It lengthens the acknowledgement deadline.

Second, while I’m no wild-eyed federalist, I would argue that falls under the category of "you problems." If you’re worried about your state legislature restricting access to public documents in a way which meaningfully impairs the public’s right to know, try to stop them. Lobby. Protest. Vote. But don’t stand there wringing your hands and clutching your pearls. There's plenty to be dismayed about in the greedy, sleazy world of college athletics. If having to wait an extra 87 days for definitive evidence of this phenomenon is terribly high on your personal list, then you haven't been paying proper attention.

And don't tell me that athletic department officials now have time to hide, destroy or sequester damning documents. Believe me, anything that is going to be destroyable in 90 days was already destroyable in 3. In many cases doing so is a criminal offense no matter how long it takes you. At best one could say that this new law allows athletic department officials to "run out the clock" on scandals by holding onto documents until the news cycle is in their favor. Ask officials at the University of North Carolina how effective that is in the event of a truly stubborn scandal. It doesn't work. Believe me, the internet will still be around and open for publishing in 90 days.

Yes, Georgia has amended its open records laws. No those amendments aren't favorable to public access. But neither in reality was the prior law in Georgia, nor are the laws in many states. There's an awful lot of governmental secrecy out there, some of it sports related, some of it related to government finance, and some of it at the ruinous intersection of the two.

In the grand scope of what's wrong with Georgia politics (which is beyond the scope of this post or comments on it, thank you very much) and what's wrong with college athletics (go ahead, we encourage your grousing) this is the proverbial fresh table cloth on the Titanic.