Part 2: City Misportrayed AG’s Advice on Airport Records
(APN) ATLANTA — The City of Atlanta Department of Law misrepresented to City Council Members the advice provided to them by the office of the Attorney General of Georgia related to airport concessions bidding records and the Georgia Open Records Act.
At issue was whether the scores for the various food and beverage and retail proposals submitted to the City should be kept a secret from the public until after the Mayor signed the legislation approving the contracts. Keeping this secret effectively limited the ability of the citizens to make meaningful public comment on the legislation approving the bids selected for contracts.
During the Transportation Committee Meeting on December 14, 2011, as previously reported by Atlanta Progressive News, Council Members Felicia Moore (District 3) and Michael Julian Bond (Post 1-at-large) objected to the City Law Department’s position of keeping the scores a secret.
Moore noted that in a previous Transportation Committee Meeting, that Peter Andrews of the Law Department had said the scores could be made public.
Andrews at that time had argued that even though he believed the bids themselves should be kept private until the Mayor signed the legislation–a position APN and others do not agree with–that the scores were separate from the bids and thus not exempt under the Georgia Open Records Act (ORA).
During the December 14 meeting, Andrews acknowledged providing that advice and gave the following explanation:
“I believe the position was taken the score sheets would be available under the Open Records Act. As with many things in law, there are different interpretations and the reason why it’s different, Ms. [Cathy] Hampton [City Attorney] instructed us after that meeting to verify whether or not they would be available. So we went to the authority in the State of Georgia, the Attorney General. The Attorney General has given us an opinion that no, they would not be available under the Open Records Act because they were derived from the documents submitted under the RFP process,” Andrews said.
However, when APN met in early January 2012 with Senior Assistant Attorney General Stefan Ritter to discuss matters relating to the City of Atlanta, APN asked about this alleged advice and whether it was true.
Ritter replied that it not was true.
Ritter said that while the AG’s Office believed that the scores were derived from the bids and subject to the same exemption under the ORA as the bids, that they did not believe that exemption applied at any point after the selections were announced.
The reason for the exemption is that there is a proprietary interest in the information contained in the bids, Ritter explained, but that that interest ends when the selections are announced.
The City on the other hand, was taking the position that the interest did not end until the Mayor signed the legislation, weeks later, the result being that the public could not see the information while the legislation was being debated.
However, the City has misrepresented the advice they received from the AG’s Office regarding the legality of keeping the scores a secret at that point.
In addition, Andrews’s statement that records are “not available” under the Act, is somewhat misleading as well. The Act has exemptions that agencies can rely upon to not provide documents if it so chooses to, but that does not mean the Act prevents agencies from the providing the documents. Moreover, an agency can choose to provide documents voluntarily, without requiring a citizen to invoke their rights under the Act.
Of course, as previously reported by APN, the City’s own Charter provides for a completely different bidding process than the one that was followed, where the bids should have all been opened in a public place at one time and thereafter be open for public inspection. It is still not clear why none of the appealing bidders have made legal arguments regarding the City not following its own Charter.
That practice–the one in the City’s own Charter that they did not follow–would be consistent with the interpretation of the ORA exemption argued by others, including open government activist Jack Jersawitz, which is that the exemption would no longer apply once the bids are unsealed, once they are in fact opened.
During the December 14 meeting, the Law Department made the scores available to Council Members, but not the public, and said that they were being provided under Attorney-Client privilege, implying that the Council Members could not divulge them to the public.
This, incidentally, was a gross misrepresentation of the Attorney-Client privilege, which is binding upon the attorney and not the client. In other words, an attorney cannot disclose information to someone else that was provided by the client; however, the client is free to disclose information provided by the Attorney.
Hampton told Moore that she believed it would require a vote by the Council to waive the Attorney-Client privilege.
Olens’s office has not chosen to pursue any Open Meetings or Open Records issues involving the City of Atlanta and the Hartsfield-Jackson International Airport under the enforcement authorities provided to them under the law.