Georgia Open Records Law Shows Its Teeth
But how many people will feel the bite?
December 27, 2019 at 12:30 PM
6 minute read
In 2015, I won a civil open records case against Georgia university officials that started when I was a student journalist. I am still keenly interested in the subject, so I went to Fulton County Superior Court earlier this month to watch the first criminal trial under a statute added to the state's open records law in 2012.
Prosecutors said Jenna Garland, as press secretary to then-Atlanta Mayor Kasim Reed, violated the law, which makes it a misdemeanor to "knowingly or willingly" frustrate or attempt to frustrate access to government records requests. A jury convicted her on two counts, and a judge fined her $1,500. Her lawyer told the Atlanta Journal-Constitution he would appeal.
I came away with more questions about Garland's guilt than I expected, but it was encouraging to see the law enforced. I now wonder how far this prosecution—assuming it is upheld on appeal—will go in supporting rural reporters and other citizens seeking government information.
I won't rehash the whole trial, but the pertinent facts are as follows: A WSB-TV producer made three separate requests for water billing records of Reed, his family and Atlanta City Council members. Garland sent texts to the employee at Watershed Management who handled the request that said to "drag this out as long as possible," to "provide information in the most confusing format available," and to "hold all" documents until the requester asked for an update.
In my experience as a journalist, most records requests are fulfilled without a hitch. While the atmosphere between members of the media and public information officers can sometimes be contentious, it's not often that a disagreement involves the assistance of legal eagles, as occurred here when WSB engaged an attorney to push for the requests to be fulfilled.
Within a month and a half, WSB received everything they were asking for. Most surprising is that the first request was fulfilled despite the requester asking for water bills for an incorrect, nonexistent address. As the defense pointed out in closing arguments, employees for Watershed Management did WSB's job for them by miraculously interpreting the intent of their request for the water records of Reed's brother.
That never happens. Ask any journalist: If your request is not completely accurate, then it's not fulfilled.
Major media outlets from Atlanta covered the trial, and I noticed the excitement of reporters in attendance. While public records are open to the public, the public doesn't deal with open records nearly as much as reporters, and it's understandable why the media wanted a win. It's important to hold the line on the little things, lest the public give up more ground on the battle for open government.
The Georgia Open Records Act can be a source of great turmoil for both the requester and government officials. According to the statute, agencies have three business days to respond to a request. If the records aren't readily available, the agency is required to provide the requester a timeline and produce records as soon as practical. No one disagrees with the intent of government transparency that the law seeks to create, but everyone has their own idea as to how the mechanics involved in producing those records should work.
In 2012, when I was editor of The Collegian at Georgia Perimeter College, I filed a lawsuit against the University System of Georgia for violations of the Open Records Act because I was frustrated in my efforts to see emails and other documents related to a $25 million budget shortfall and staff layoffs.
First, I was quoted an exorbitant cost for the emails I was requesting. After months of negotiating with pro bono legal aid, the record-keepers were still dragging their feet to release records. It took roughly nine months from the time of my initial request before the USG claimed to be finished with production. Days after I filed my complaint, the USG produced 700 pages of documents that it claimed to have inadvertently misplaced.
After three years, including an appeal, I won my case. The USG was assessed a $1,000 civil fine and paid a portion of my attorney's fees. Also, as in the Garland case, the media contact who handled the records request was replaced during the hubbub.
The experience led me to develop a greater appreciation for those in government who are charged with handling public records requests. Especially when those employees get a request for information which relates to exposing their superiors.
At Garland's trial, it was an interesting juxtaposition to see the attorney general's office wearing the prosecutor's hat, since they defended the USG in my case.
I thought I had my mind made up by everything I'd read and experienced prior to the start of the proceedings. As the facts were doled out over the course of three days, however, I began to wonder if Garland actually had the criminal intent to frustrate the open records request. Her texts suggested so, but in a recording with a Georgia Bureau of Investigation agent played at trial, Garland claimed she was "venting" to someone she thought wouldn't take her order seriously.
Ultimately, those text messages made the state's case—although I wondered if Reed's unpopularity in the wake of corruption investigations into officials in his administration contributed to the jury's verdict too.
When her guilty verdict came in, I noticed a subtle fist pump from a journalist in the audience. I'm sure many in the Georgia journalism community are celebrating the conviction in the same way, now that the open records law has shown it has teeth and will bite.
After the trial, Attorney General Chris Carr issued a statement that said the case "sends a strong message across our state and nation about the importance of following the law."
I can't help but wonder: Did the AG's office really send a strong message?
More open records grievances will occur across the state, from ridiculous production fee quotes to significant delays in releasing documents. Given that it took seven years for a trial to occur under this law, will it be another seven years before we see another criminal open records prosecution? Or will it, too, require another high-profile target?
David Schick graduated from the University of Georgia in 2014 and currently works as a freelance writer in Atlanta. He plans to attend law school in the fall of 2020.
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