Atlanta Seeks to Gut Provisions of Georgia Open Records Act
Photographs of Michael B. Jones, Robbie Ashe, Michael Smith, and Alisha Irene Wyatt-Bullman published pursuant to Fair Use doctrine for public educational purposes.
(APN) ATLANTA — In an effort to stifle transparency and prevent being held accountable for apparent violations of the Georgia Open Records Act, the City of Atlanta has committed to spending endless taxpayer dollars to dismantle key provisions of the Georgia Open Records Act that were added in 2012.
As part of this effort, the City has hired private counsel Robbie Ashe and Michael B. Jones of the law firm, Bondurant Elmore & Mixson; and is paying them at least 450 dollars and four hundred dollars an hour, respectively, to attack the Georgia Open Records Act.
First, in a motion filed in Fulton County Superior Court by Mr. Jones on behalf of the City on September 01, 2020, the City argues that its own “records coordinators”–who by city ordinance are tasked with responding to records requests–cannot be held accountable for violating the Act because they are not “records custodians.”
Second, the City argues that the civil penalty provisions that allow members of the public to seek civil penalties against government officials who violate the Act, are unenforceable as written.
Third, the City argues that the “In-Camera Inspection” provisions of the Act that allow citizens to seek for the Court to review the minutes of closed-door Executive Sessions to see whether government officials closed a meeting for a permitted reason, are also unenforceable as written.
In 2012, the Georgia Legislature, at the urging of then-Attorney General Sam Olens, added the open records officer provisions, civil penalty provisions, and In-Camera Inspection provisions to make it easier for ordinary citizens to obtain public records; and to give ordinary citizens a way to hold governments accountable, by way of HB 397.
The City is currently defending itself against a lawsuit brought by APN’s News Editor: Matthew Charles Cardinale v. City of Atlanta, Michael Smith, and Alisha Irene Wyatt-Bullman, 2020-CV-332834, which is pending before Fulton County Superior Court Judge Kelly Lee Ellerbe.
As reported by Richard Belcher of WSBTV Channel 2 television news, in August 2020, the Court ruled that Michael Smith, Mayor Keisha Lance Bottoms’s spokesman; and Alisha Irene Wyatt-Bullman, then Supervisory Senior Assistant City Attorney could be added as individual defendants due to their alleged violations of the Act.
Michael Smith, who received a Feb. 08, 2020 records request from APN’s News Editor for a copy of the City’s 2009 signed franchise agreement with Comcast, failed to respond, despite having attended open records training and being aware of the three business day deadline to respond.
Wyatt-Bullman, who has since left the City for a position with Atlanta Gas Light, responded on behalf of the City, but insisted the records could not be located after a diligent search.
Subsequent records requests by APN have determined that the records, were, in fact, available in both the City Auditor’s Office and Wyatt-Bullman’s own Law Department. Therefore, Wyatt-Bullman’s response was deceptive.
In addition to civil penalties of one thousand dollars each, APN’s Editor seeks for the City to be ordered into a Consent Decree on open records and open meetings issues.
OPEN RECORDS COORDINATORS AND CUSTODIANS
As part of its October 02, 2018 settlement agreement with the Atlanta Journal-Constitution and WSBTV Channel 2, the City agreed to adopt a transparency ordinance.
The ordinance, 18-O-1266, was adopted by the City Council contemporaneously, on September 25, 2018, creating a new Chapter 3 of the City Code, “Transparency.”
The new Transparency chapter of the City’s Code of Ordinances set forth new provisions, including the designation of the head of each department as the open records custodian for the department; and allowing the open records custodian of each department to designate one or more open records coordinators to respond to records requests.
In the Mayor’s Office of Communications, Peter Kadushin was the Records Custodian. Kadushin apparently designated Michael Smith as his records coordinator.
[Kadushin left the City in June, just days after an APN article regarding his failure to respond to the Feb. 08, 2020 records request.]
In its September 01, 2020 motion, the City is arguing that Michael Smith cannot be held accountable because he is a records coordinator, not a records custodian – even though he was an appointed agent of a records custodian.
If the City is successful in its argument, the consequences for Georgia citizens and media could be devastating. It would mean that Georgia agencies can make sure that the custodians of open records are never the person designated to respond to records requests; and thereby never be held accountable for their actions.
The City also plainly argues that the Georgia Open Records Act does not allow for civil penalties. They’re wrong.
The Supreme Court of Georgia ruled in March 2020, in Ed Williams v. DeKalb County, that the Georgia Open Meetings Act civil penalty provisions do indeed allow citizens to seek civil penalties against government officials or employees in their personal capacities; and that, if successful, the employee would have to pay the thousand dollars to the citizen who complained.
The City argues that the Records Act is so different from the Meetings Act that the Williams ruling does not apply. However, this argument reveals a lack of reading comprehension.
The Act states: “a civil penalty may be imposed by the court in any civil action brought pursuant to this article against any person who negligently violates the terms of this article in an amount not to exceed $1,000.00 for the first violation.” The City claims this language does not exist in the Act.
APN’s News Editor replied yesterday to the City’s September 01, 2020 Motion; and the motion is still pending.
(END / Copyright Atlanta Progressive News / 2020)
EDITOR’S NOTE: Thank you to the readers of Atlanta Progressive News for your patience with our frequency of publication over the last few weeks, which has been unusually low.
APN’s News Editor is currently managing three lawsuits against the City of Atlanta; recently studied for and passed the MPRE (attorney ethics exam); and is currently studying for the October 2020 Georgia Bar Exam. In November 2020, we will celebrate our fifteenth year of publication; and by then, we will have returned to our normal publication schedule. Thank you again!