Unprecedented criminal complaint filed for violations of the Georgia Open Records Act

The Georgia state attorney general filed the first-ever criminal complaint in connection with the Georgia Open Records Act on Feb. 11, 2019. Jenna Garland, press secretary for former Atlanta Mayor Kasim Reed, was cited with two violations of the act and is accused of ordering a subordinate in the city’s Department of Watershed Management to delay handing over public records containing information damaging to Reed and other city officials in March 2017.

On March 7, 2017, WSB-TV Channel 2 Action News filed a records request for “billing, payment and usage records,” according to the citation. It alleges that Garland “knowingly and willingly attempt[ed] to frustrate the access to records not subject to exemption” by instructing then-watershed spokeswoman Lillian Govus via text message to “[d]rag this out as long as possible [a]nd provide information in the most confusing format available.”

The second citation alleges that Garland similarly obstructed a second records request from Channel 2, filed on March 21, 2017, when Garland instructed Govus to “‘[h]old all’ documents responsive to the request until the requestor asked for an update” via text message on April 7, 2017.

The texts were obtained and reported on by Channel 2 and The Atlanta Journal-Constitution in May 2018.

It is exceedingly rare for a public official to face consequences for obstructing public records requests, Jonathan Peters, media law professor at the University of Georgia, told the U.S. Press Freedom Tracker. “It’s not uncommon for state records laws to have those penalties built in to them,” he said. “What is really uncommon is to see a prosecutor actually use them.”

Peters said public records law violations aren’t often worthwhile for prosecutors to pursue given the challenge of securing a conviction under one of the criminal provisions of the law. “Good faith” is a defense built into many open records laws, including Georgia’s ORA.

“A good faith defense is so elastic and subjective that it’s not a terribly difficult defense for a public official to make,” Peters said.

When cases are pursued, he said, it is when the violations are so flagrant that they can’t be ignored.

“I think it’s the particularly bad facts of this case, where screenshots of the actual text messages are so clearly evidence of an effort to frustrate the public records law, that it is reasonably impossible to look at the behavior of Jenna Garland and see anything resembling good faith,” Peters said.

Violations of the ORA are misdemeanors, and if convicted Garland faces up to a $1,000 fine. She could also face up to a $2,500 fine for the second citation, depending on how the judge decides to hear the allegations.

“Openness and transparency in government are vital to upholding the public trust,” Georgia Attorney General Chris Carr said in a news release on the citations on Feb. 11, 2019. “I am confident that this action sends a clear message that the Georgia Open Records Act will be enforced.”

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.