Judge to Reconsider Warrant for Grady CEO on Open Records

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(APN) ATLANTA — Fulton County Superior Court Judge Constance Russell denied a warrant application for Grady Memorial Hospital Corporation CEO Pete Correll on Monday, November 29, 2010, that had been sought by Petitioner, Jack Jersawitz.
As previously reported by Atlanta Progressive News, Jersawitz had filed a warrant application two years ago regarding Correll’s failure to provide contact information for the individual Members of the privatized Grady Board.  Jersawitz had been seeking a way to communicate with Board Members outside of the Board meetings, where there is little chance for interaction.
Judge Russell denied the petition for a warrant application after attorneys for Correll revealed that in the two year period in which the case had languished, that the Georgia Open Records Act had in fact been amended to exempt email addresses from release.
Since Jersawitz made the request in 2008, Correll’s attorneys had been arguing that the contact information for Board Members–including home addresses, phone numbers, and email addresses–did not need to be disclosed because of an exemption which exists in the law for contact information for public school teachers and other public school employees.
APN previously reported that said exemption did not appear to apply to the GMHC Board Members.
However, that exemption of the law, 13.1, was modified in 2005 by HB 437.  This added the words “public employees or” to where it previously said “teachers and employees of a public school.”  APN had been looking at an out-dated version of the Act on the Georgia Secretary of State’s website which had been published prior to that revision.
In addition, a second revision to exemption 13.1 was made this year, 2010, by the Legislature.  HB 1086 added the words “the email address” after home address, home telephone number.  It also added a new sentence at the end of the exemption related to non-public schools.
Therefore, it appears that Correll did not violate the Act in 2008 by refusing to provide the home addresses or telephone numbers of GMHC Board Members to Jersawitz, because that information had already been made exempt from disclosure in 2005.
However, at the time the request was made, email addresses had still not been exempt.  Thus, Jersawitz tells APN that his argument for a criminal warrant for Correll still stands, at least to the extent that Correll failed to provide email addresses which were not exempt from disclosure at the time of the request.
Correll’s attorneys, with Alston & Bird, further cited the ruling in a case, Evans v. Belth (1989), which stated that in a dispute regarding the disclosure of insurance records, the current version of the law at the time of the court hearing was relevant, rather than the contemporaneous version of the law at the time the records request was made.
Jersawitz has filed a motion to stay Judge Russell’s ruling and for her to reconsider her ruling, according to a copy of the motion obtained by APN.
APN obtained a copy of Correll’s reply, dated December 10, 2010.  The Respondent’s Reponse to Petitioner’s Motion for Stay and Motion for Reconsideration was prepared by attorney Bernard Taylor of Alston & Bird.
Jersawitz argues in his motion for reconsideration: 
“Judge Constance C. Russell of Fulton County Superior Court has issued a FINAL ORDER ON WARRANT APPLICATION in regard to the above case on the basis, as stated in open court, that issue of a warrant for failure to produce public records was inappropriate insofar as the law requiring, on request, production of said records on the part of public officials… was changed no longer requiring public officials, in this case the Corporate Board of Grady Hospital, to produce such records,” Jersawitz wrote.
“This MOTION FOR RECONSIDERATION is necessary because the Court is in error insofar as its FINAL ORDER ON WARRANT APPLICATION is mistakenly based on a change in the law as to what must be produced in specific requested records rather than the violation of criminal law which is separate and apart from any changes to the law of what must be produced,” Jersawitz wrote.
“The warrant application is based on the criminal act of the Respondent in refusing to provide records required to be produced when the law required their production and therefore made himself subject to criminal penalties extant then and now for such refusal, despite any changes written subsequently into the Records Act,” Jersawitz wrote.
“The case Judge Russell based her decision on, EVANS v. BELTH, 193 GA.App. 757, 388 S.E.2d 914, which determined that access to insurance records sought in that case could be denied due to a change in the law not requiring their production, said change occurring after the original request.  That court determined, apparently contrary to hundreds of years of prohibition of ex poste facto law prohibition, that the law applied should be that extant at the time of its hearing on the demand for the records rather than the law at the time of the request,” Jersawitz wrote. 
“In this case the matter before this Court is not the demand for production of records. Nor is the Belth decision, therefore applicable to this case because the subject matter is not the continued demand for public records as in Belth but rather a demand for application of the criminal law and penalties provided for failure to abide by the requirements of the Records Act then, said penalties provided by the Act and not altered or otherwise negated along with later changes in the law,” Jersawitz wrote.
“Belth has to do with adjudication as to production of records. It has nothing to do with adjudication as to criminal penalties arising from failure to provide records then subject to being provided under the law no matter how many times the Legislature can be induced to change the law favoring one or another party in custodial control of the public record,” Jersawitz wrote.
“This Court correctly held that inspection of public records under the Georgia Open Records Act is a privilege,” Taylor replied.
“Thus, because no vested right was adversely affected, Georgia law required this Court to apply statutory law as it existed at the time of the Court’s decision, rather than the statutory law prevailing at the time of the records request,” Taylor wrote.
“Petitioner argues that because this matter is a criminal action, Evans, a civil action, should not be applied.  However, this argument is misplaced.  Petitioner bases his arrest warrant application on Respondent’s supposed failure to comply with the Open Records Act.  This Court correctly used Evans… to interpret the requirements for compliance with the Open Records Act, and ultimately to determine that Respondent complied with its requirements.  Accordingly, this Court explained that because there was no underlying failure to comply with the Open Records Act, an arrest warrant premised on a failure to comply could not be granted,” Taylor wrote.
This is quite a significant argument because this means that any individual could break the law and get away with it simply by lobbying to have the law changed after the fact.
APN previously reported that the warrant application had languished for two years because Correll’s attorneys filed a Motion for Declaratory Judgment in Fulton County Superior Court, and convinced a judge to postpone a decision on the warrant application until the declaratory judgment case could be heard.
Jersawitz had filed a Motion to Dismiss the Motion for Declaratory Judgment, and Judge Russell granted the Motion to Dismiss on November 22, 2010.  APN has obtained a copy of Judge Russell’s order granting the Motion to Dismiss.  After Judge Russell granted Jersawitz’s motion, thus dismissing the Motion for Declaratory Judgment, that cleared the way for Russell to make a decision on the original warrant application.
After APN provided Jersawitz with updated information regarding the legislative history of the Act, Jersawitz said that he will focus specifically on Correll’s failure to provide email addresses in his next reply brief.
APN has also notified that Secretary of State’s Office that their copy of the Act is out of date, but has not received an immediate response.
Next, Jersawitz will file his reply brief, and Judge Russell will issue a ruling on the Motion to Reconsider.  Jersawitz also has the opportunity to appeal as well.

(APN) ATLANTA — Fulton County Superior Court Judge Constance Russell denied a warrant application for Grady Memorial Hospital Corporation CEO Pete Correll on Monday, November 29, 2010, that had been sought by Petitioner, Jack Jersawitz.

As previously reported by Atlanta Progressive News, Jersawitz had filed a warrant application two years ago regarding Correll’s failure to provide contact information for the individual Members of the privatized Grady Board.  Jersawitz had been seeking a way to communicate with Board Members outside of the Board meetings, where there is little chance for interaction.

Judge Russell denied the petition for a warrant application after attorneys for Correll revealed that in the two year period in which the case had languished, that the Georgia Open Records Act had in fact been amended to exempt email addresses from release.

Since Jersawitz made the request in 2008, Correll’s attorneys had been arguing that the contact information for Board Members–including home addresses, phone numbers, and email addresses–did not need to be disclosed because of an exemption which exists in the law for contact information for public school teachers and other public school employees.

APN previously reported that said exemption did not appear to apply to the GMHC Board Members.

However, that exemption of the law, 13.1, was modified in 2005 by HB 437.  This added the words “public employees or” to where it previously said “teachers and employees of a public school.”  APN had been looking at an out-dated version of the Act on the Georgia Secretary of State’s website which had been published prior to that revision.

In addition, a second revision to exemption 13.1 was made this year, 2010, by the Legislature.  HB 1086 added the words “the email address” after home address, home telephone number.  It also added a new sentence at the end of the exemption related to non-public schools.

Therefore, it appears that Correll did not violate the Act in 2008 by refusing to provide the home addresses or telephone numbers of GMHC Board Members to Jersawitz, because that information had already been made exempt from disclosure in 2005.

However, at the time the request was made, email addresses had still not been exempt.  Thus, Jersawitz tells APN that his argument for a criminal warrant for Correll still stands, at least to the extent that Correll failed to provide email addresses which were not exempt from disclosure at the time of the request.

Correll’s attorneys, with Alston & Bird, further cited the ruling in a case, Evans v. Belth (1989), which stated that in a dispute regarding the disclosure of insurance records, the current version of the law at the time of the court hearing was relevant, rather than the contemporaneous version of the law at the time the records request was made.

Jersawitz has filed a motion to stay Judge Russell’s ruling and for her to reconsider her ruling, according to a copy of the motion obtained by APN.

APN obtained a copy of Correll’s reply, dated December 10, 2010.  The Respondent’s Response to Petitioner’s Motion for Stay and Motion for Reconsideration was prepared by attorney Bernard Taylor of Alston & Bird.

Jersawitz argues in his motion for reconsideration: 

“Judge Constance C. Russell of Fulton County Superior Court has issued a FINAL ORDER ON WARRANT APPLICATION in regard to the above case on the basis, as stated in open court, that issue of a warrant for failure to produce public records was inappropriate insofar as the law requiring, on request, production of said records on the part of public officials… was changed no longer requiring public officials, in this case the Corporate Board of Grady Hospital, to produce such records,” Jersawitz wrote.

“This MOTION FOR RECONSIDERATION is necessary because the Court is in error insofar as its FINAL ORDER ON WARRANT APPLICATION is mistakenly based on a change in the law as to what must be produced in specific requested records rather than the violation of criminal law which is separate and apart from any changes to the law of what must be produced,” Jersawitz wrote.

“The warrant application is based on the criminal act of the Respondent in refusing to provide records required to be produced when the law required their production and therefore made himself subject to criminal penalties extant then and now for such refusal, despite any changes written subsequently into the Records Act,” Jersawitz wrote.

“The case Judge Russell based her decision on, EVANS v. BELTH, 193 GA. App. 757, 388 S.E.2d 914, which determined that access to insurance records sought in that case could be denied due to a change in the law not requiring their production, said change occurring after the original request.  That court determined, apparently contrary to hundreds of years of prohibition of ex poste facto law prohibition, that the law applied should be that extant at the time of its hearing on the demand for the records rather than the law at the time of the request,” Jersawitz wrote. 

“In this case the matter before this Court is not the demand for production of records. Nor is the Belth decision, therefore applicable to this case because the subject matter is not the continued demand for public records as in Belth but rather a demand for application of the criminal law and penalties provided for failure to abide by the requirements of the Records Act then, said penalties provided by the Act and not altered or otherwise negated along with later changes in the law,” Jersawitz wrote.

“Belth has to do with adjudication as to production of records. It has nothing to do with adjudication as to criminal penalties arising from failure to provide records then subject to being provided under the law no matter how many times the Legislature can be induced to change the law favoring one or another party in custodial control of the public record,” Jersawitz wrote.

“This Court correctly held that inspection of public records under the Georgia Open Records Act is a privilege,” Taylor replied.

“Thus, because no vested right was adversely affected, Georgia law required this Court to apply statutory law as it existed at the time of the Court’s decision, rather than the statutory law prevailing at the time of the records request,” Taylor wrote.

“Petitioner argues that because this matter is a criminal action, Evans, a civil action, should not be applied.  However, this argument is misplaced.  Petitioner bases his arrest warrant application on Respondent’s supposed failure to comply with the Open Records Act.  This Court correctly used Evans… to interpret the requirements for compliance with the Open Records Act, and ultimately to determine that Respondent complied with its requirements.  Accordingly, this Court explained that because there was no underlying failure to comply with the Open Records Act, an arrest warrant premised on a failure to comply could not be granted,” Taylor wrote.

This is quite a significant argument because this means that any individual could break the law and get away with it simply by lobbying to have the law changed after the fact.

APN previously reported that the warrant application had languished for two years because Correll’s attorneys filed a Motion for Declaratory Judgment in Fulton County Superior Court, and convinced a judge to postpone a decision on the warrant application until the declaratory judgment case could be heard.

Jersawitz had filed a Motion to Dismiss the Motion for Declaratory Judgment, and Judge Russell granted the Motion to Dismiss on November 22, 2010.  APN has obtained a copy of Judge Russell’s order granting the Motion to Dismiss.  After Judge Russell granted Jersawitz’s motion, thus dismissing the Motion for Declaratory Judgment, that cleared the way for Russell to make a decision on the original warrant application.

After APN provided Jersawitz with updated information regarding the legislative history of the Act, Jersawitz said that he will focus specifically on Correll’s failure to provide email addresses in his next reply brief.

APN has also notified that Secretary of State’s Office that their copy of the Act is out of date, but has not received an immediate response.

Next, Jersawitz will file his reply brief, and Judge Russell will issue a ruling on the Motion to Reconsider.  Jersawitz also has the opportunity to appeal as well.

 

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