City of Atlanta Attorneys Want Their Memos Back

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(APN) ATLANTA — The City of Atlanta Law Department has requested that Atlanta Progressive News return four memoranda to their offices, after APN obtained the controversial memos and published their contents earlier this week.

One memo, dated April 04, 2011, authored by Kristen Denius, Assistant City Attorney, and sent to all Council Members and Council staff, admits that Council Members have been violating the Georgia Open Meetings Act and explicitly advises the Council to change their practices.

As previously reported by APN, the memo states that it is not acceptable to determine the open or closed status of a Committee Briefing after it begins, because due notice to the public is required.  The memo also advises Council Members to avoid discussing the substance of policy issues at Committee Briefings.

APN obtained the memos from a confidential source and has every intention of upholding the confidentiality granted to this source.

But the Law Department is not happy about the memos having been released to APN and has asked APN to return the memos to their offices.

“I am writing regarding your posting in The Atlanta Progressive News (“APN”) on August 9, 2011,” Denius wrote in an August 10, 2011, letter to APN.

The article is based upon correspondence protected by the attorney-client privilege.
The article admits that, “APN obtained four memos prepared for City Council members by City attorneys
from a source who was granted confidentiality because they were not authorized to release the information.”
Accordingly, I respectfully request that you return the memoranda and any other privileged documents to
the Department of Law immediately.

“The article is based upon correspondence protected by the attorney-client privilege,” Denius wrote.

“The article admits that, ‘APN obtained four memos prepared for City Council members by City attorneys from a source who was granted confidentiality because they were not authorized to release the information,'” Denius wrote.

“Accordingly, I respectfully request that you return the memoranda and any other privileged documents to the Department of Law immediately,” Denius wrote.

Now, when APN wrote that the source of the information was not authorized to release the information, APN was speaking about internal City of Atlanta practices and protocols.  For example, when Councilwoman Felicia Moore wanted to release a memo to APN in 2010 that the Law Department had prepared regarding the secret vote, Moore requested permission in writing to release the memo to APN.

Moreover, attorney-client privilege is legally binding on the attorney, not the client.

In other words, attorneys are prohibited–except in certain circumstances–from disclosing information revealed privately to him or her by a client.

However, the client is not prohibited by any laws relating to attorney-client privilege, from disseminating information or advice obtained from their attorneys.

Clearly, in this situation, one of the clients who received the four memos decided to release them to APN.

Whether this client in question violated any internal City of Atlanta protocols or practices, whether written or unwritten, is not of concern to APN.

However, Atlanta Progressive News does not see any legal obligation–nor does the City of Atlanta provide any legal theory–as to why APN should return the memos to the Law Department.

APN provided the memos to Channel 2 WSB and they were featured yesterday in a segment on the City of Atlanta and the closed-door Committee Briefings.

APN also scanned the memos and distributed them widely, including to other media outlets and interested parties.

Therefore, even if APN was interested in returning the memos to the City of Atlanta, it is not clear what the City’s objective is; the readers of APN are already aware that the City Attorneys advised their clients to change their ways of conducting Committee Briefings in order to bring them into compliance with the Georgia Open Meetings Act.

The release of the memos also puts the City Attorneys in a bit of an ethical quagmire, in that it may be unethical for them to continue to deny allegations that they know are true, and to argue against claims that they know are valid.

Apparently, the Law Department and some Council Members are really flipping out about the release of the memos.

But the memos were released by an individual who felt that the City of Atlanta is engaging in illegal, undemocratic practices, and that the public needed to know that even the City’s own attorneys could see that.

The City currently has until August 25, 2011, to provide responses to seven sets of just under fifty interrogatories filed by APN’s News Editor, as well as requests for document production.

As previously reported by APN, and noted yesterday by Channel 2 WSB news, the Georgia Attorney General’s Office has drafted a lawsuit against the City related to the closed-door Committee Briefings.

Denius and City Attorney Amber Robinson have said they are working on a proposed consent decree to settle out of court.  No word yet on that proposal.

However, Councilman Kwanza Hall further incriminated the City in remarks made yesterday to Channel 2.

Hall admitted that Council Memers and Executive Branch officials discuss the substance of policy issues at these closed-door Committee Briefings.

“You kind of get a report on what’s going on in the next meeting.  People don’t really make decisions. They just kind of deliberate and get into the meetings,” Hall said.  Deliberate, indeed.

Further, senior advocate Ben Howard brought to APN’s attention the existence of a 1998 City resolution, 98-R-1304, “Urging the Mayor to direct Department/Agency heads or their designee to attend meetings or briefings of the appropriate Council Committees.”

So, despite the fact that the City wants to make it seem like the Briefings are just opportunities for the Committee Chairs to speak with the Committee staff, there is legislation on the books creating a practice of executive branch members to attend.

(END / 2011)

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