Toe-to-toe with the Georgia Attorney General
First day on the job at my summer freedom of information internship at the Society of Professional Journalists’ headquarters and I’m thrown smack dab in the middle of a First Amendment fight against the Georgia Attorney General’s office. There’s nothing quite like becoming a (small) Internet sensation among journalistic circles on your first day of work at SPJ. I’m sure my bosses were impressed (even SPJ President David Cuillier wrote about me).
Last Thursday a motion was filed — via state Attorney General Sam Olens — that was seeking to have me remove four pages of public documents I had posted to my blog last August. The documents, which related to a presidential search at one of the colleges, were “inadvertently produced” to me as part of an open records request. The records could have been withheld under an exemption in Georgia Open Records Law, which hides the process of choosing college presidents from public view, but there is no affirmative right of non-disclosure.
SPJ’s Region 3 Director Michael Koretzky campaigned to have other people post the pages to their blog. And some journalists rallied to the cause.
As Susannah Nesmith and Jonathan Peters put it in an article for the Columbia Journalism Review:
After inspiring a minor controversy in media-law circles, the motion was withdrawn on Tuesday—presumably because it was absurd, had no basis in law, and might as well have been written in crayon, given the quality and seriousness of the state’s arguments.
What’s more, a spokeswoman for the AG told the Student Press Law Center that Olens didn’t know about the motion until after it was filed:
Lauren Kane, a spokeswoman for the Attorney General Sam Olens’ office, said Olens was not personally aware of the motion filed by attorneys in his office until this week, when media reports publicized it.
“Once the attorney general learned about it, he ordered it withdrawn,” Kane said. She declined to elaborate on the reasons for the change of course, saying “it speaks for itself that we withdrew it as soon as we learned of it.”
If the AG didn’t know about the contents of the motion, I wonder if he is even aware that his lawyers argued at trial that the Board of Regents (BOR) of the University System of Georgia is a “law enforcement agency” and can therefore invoke the exemption to keep records related to “open investigations” a secret from the public (more on that below)?
All this comes in part of my larger lawsuit against the BOR for violating the Georgia Open Records Act.
The (short) back story
I was investigating a $16 million — later turned $25 million — budget deficit at Georgia Perimeter College, where I was editor-in-chief of the student newspaper. This budgetary shortfall led to 282 layoffs, and there was no valid explanation for why it happened. Also, there seemed to be no fiscal oversight at the university system office, and this is what prompted me to start filing open records requests in July 2012.
The BOR first stonewalled the request by charging an exorbitant cost of $3,000 for the emails I was requesting from top university system officials. I sought help from Frank LoMonte, executive director of the Student Press Law Center, who referred me to my pro-bono attorney, Daniel Levitas. After months of negotiating, the BOR reduced the cost to $300.
Then, after I thought the difficult part was behind me, the BOR began dragging their feet to actually produce the records. It was another six months before the BOR claimed they had “produced everything” to me, excluding records they said were “part of an open investigation” and exempt from disclosure (more on that below). After exploring every amicable option possible to get the remaining records and waiting for the BOR to comply with the law, I filed lawsuit against them in June 2013.
The lawsuit and trial
In August 2013, the BOR’s lawyers at the AG office responded to my lawsuit and produced an additional 713 pages of documents that were responsive to my July 2012 open records request. They claimed that the documents were overlooked and had been sitting in the office of a top university system official waiting to be reviewed. Four of the 713 pages were the ones “inadvertently produced,” which the AG’s office tried to get me to remove.
The essential issues in this case brought up in trial were:
The BOR’s failure to cite the specific exemption under which material could be withheld following an open records request.
The Georgia Open Records Act mandates that any public entity inform the requestor what exemptions are being invoked by citing the specific code section, subsection and paragraph. I think it’s clear that the trial record is devoid of any evidence that the state complied with this statute.
Imagine that you make an open records request. The public agency answers and tells you, “We have responsive documents for you, but some of the documents we’re not going to give you.” Then you ask them why and they don’t explain.
Anyone should be able to figure out why that is wrong. If a public entity doesn’t properly cite the specific exemption they are using under the law, you have no way of challenging that.
The BOR’s late production of 713 pages
It’s undisputed that these pages were produced to me only after I filed lawsuit. This was not a single piece of paper stuck in a copy machine. This was 713 pages, which were never turned over to me until I took legal action. Would they ever have been turned over to me had I not filed suit?
The BOR’s improper use of O.C.G.A. § 50-18-72 (a)(4)
It was not until one week before the lawsuit that I ever learned what specific exemptions the BOR invoked. On the first day of trial, the AG’s office brought another stack of documents. They claimed that some were withheld pursuant to the “open investigations” exemption, for in-camera review by the court.
Take a look at the actual statute:
(4) Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution (emphasis added)
To me, that clearly states that if you’re not a law enforcement, prosecution, or regulatory agency, you can’t invoke this exemption.
Since the AG was unaware of the egregious motion his lawyer’s filed, I wonder if he’s aware that they made the argument that because the BOR sometimes works with law enforcement agencies on investigations that in turn makes them a de facto law enforcement agency.
More damning is the last section of the paragraph that says it shouldn’t apply to the records of an agency that is the subject of said investigation. Simply put, if the Georgia Bureau of Investigation (a law enforcement agency) is investigating the University System of Georgia, then the GBI’s records are closed, the university system’s are not.
David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ, reporting and researching public records and FOI issues. Contact him at email@example.com or interact on Twitter: @davidcschick