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AMICUS CURIAE BRIEF OF VIOLA DAVIS, FOUNDER OF A DEKALB COUNTY TAXPAYER ADVOCACY ORGANIZATION, IN SUPPORT OF SABRINA SMITH COMES NOW, Amicus Curiae named above, who hereby makes and files this Brief in Support of Sabrina Smith's Complaint for Enforcement for such shows and as

Applicability follows:


to O.C.G.A.

50-18-73, and

INTEREST OF AMICUS CURIAE Viola Davis, the founder of a Dekalb County taxpayer advocacy organization, has been a long-time government watchdog and was a plaintiff in the Brown vs. Board

of Education lawsuit filed by the late Charles Scott Sr. Ms. Davis is a taxpayer and
education advocate who regularly files open records requests with government entities to analyze how taxpayer dollars are spent and disseminates the results to the public. Ms. Davis reviewed documents that show Dekalb County gave $10,000.00 to

Partnership Gwinnett. Ms. Davis is interested in supporting public access to records to show what economic development activities the Gwinnett Chamber of Commerce

conducted on behalf of Gwinnett County. Ms. Davis believes the Open Records Act is critical to Georgia citizens' ability to be informed about their local government and it is with this in mind that Viola Davis strongly supports Ms. Smith in her effort to secure full compliance with the Act's mandates, including a determination that the Gwinnett Chamber of Commerce is declared subject to such Act. INTRODUCTION Amicus curiae named above respectfully submits this brief to address the denied access to

issue of whether Plaintiff, Sabrina Smith, has been wrongfully public records as a result of Gwinnett Chamber of Commerce

contention that it is

a private entity not subject to the Georgia Open Records Act (herein" Act") (despite

receiving nearly $3.5 million dollars in public funding over the last five years, as well as carrying out "economic development" on behalf of Gwinnett County and its
School District). On February pursuant Gwinnett documents 28, 2012, Sabrina Smith (Plaintiff") delivered a request

to provisions Chamber

of the Georgia Open Records Act (the "Act") to the ("Defendant Chamber"). Plaintiff requested funding in 2010,

of Commerce

that identified the public entities which provided

along with the amount of funding provided.

Her request was based on Defendant

Chamber's 2010 Form 990, which indicated that 35 percent of its funding came from government grants.


Ms. Smith contends



Defendant performing County

Chamber significant

is subject functions

to the Act by the virtue for both Gwinnett


of said Defendant and Gwinnett Defendant







Chamber responded

on March 1, 2012, citing that it is a non-profit organization

that does not receive more than 33 1/3 percent of funds from direct allocation of tax funds and is therefore not subject to the Act (while not addressing the issue of being subject to the Act by way of performing governmental entities). On October 10,2012, Plaintiff renewed her demand for inspection of public records. Defendant Chamber has continued to restate its original position as

economic development"

for those

reasoning for its non-disclosure 16, 2012.


in the letters dated October 11,2012, and October (September 23, 2013), PLAINTIFF








AND HAS BEEN MET WITH THE SAME OBSTRUCTION, REFUSAL TO COMPLY WITH THE ACT. Amicus curiae broad reading of the Open Records Act, Defendant


believes that under a is an agency of


Gwinnett County and Gwinnett County School District, and has intentionally and knowingly refused to honor lawful requests, wrongfully to public records. Such refusal and non-compliance is a clear and present threat to open denying Plaintiff access

government declare

and trust in the same. Amicus curiae strongly Chamber subject to the Act, and

urge this Court to that Defendant



Chamber complies to every request thereunder. ARGUMENT I. The Open Records Act Is Broadly Construed In Favor Of Openness The Georgia General Assembly clearly expressed its purpose in enacting the Open Records Act: The General Assembly finds and declares that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions. O.C.G.A. 50-18-70(a). The General Assembly further established presumption


that public records should be made available for public inspection

without delay." Id. To effectuate the explicit purpose of the Act, and to ensure that local

government is held accountable to the Act, the General Assembly left no doubt as to how the Act should be interpreted by courts: "This article shall be broadly construed to allow the inspection of governmental records. The exceptions set forth in this

article, together with any other exception located elsewhere in the Code, shall be interpreted narrowly to exclude only those portions of records addressed by such

exception." [d. (emphasis added).

The Georgia


of Appeals,


this clear legislative


concluded that "[t]he Open Records Act was enacted in the public interest to protect the public from 'closed door' politics and the potential abuse of individuals and

misuse of power such policies entail," and therefore "must be broadly construed to effect its remedial and protective purpose."

Central Atlanta Progress v. Baker, 278

Ga. App. 733, 734-735 (2006); see also Griffin Indus., Inc. v. Georgia Dept. of Agric.,
313 Ga. App. 69 (2011) (emphasizing that compliance with the Act is "not

discretionary, but mandatory"); City of Atlanta v. Corey Entm't, Inc., 278 Ga. 474, 476 (2004) (holding that "any purported statutory exemption from disclosure under the

Open Records Act must be narrowly construed"). In sum, because both public policy and the strong language of the Open Records Act reveal an indisputable presumption in favor of openness, the disclosure requirements of the Act are broadly construed and any purported exemptions to those disclosure requirements are to be narrowly construed. II. Because Gwinnett County Chamber of Commerce is an Agency of Gwinnett County, the Records Requested by Plaintiff are 'Records" Subject to Disclosure Under the Open Records Act The first question in an Open Records Act suit is whether the documents are public records as defined in OCGA 50-18-70(a). United HealthCare of Georgia, Inc.

v. Georgia Dept. of Cmty. Health, 293 Ga. App. 84,87 (2008). If answered in the
affirmative, the second question is whether those records are exempt from disclosure

under OCGA 50-18-72 or some other statute. Id. Because the first question is the

dispositive question in this case, we address it in detail before addressing the second question in brief. The Open Records Act defines "public record" as "all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an

agency or by a private person or entity in the performance for or on behalf of an agency."

of a service or function

O.C.G.A. 50-18-70(b)(2). In defining "agency,"

the Act incorporates the definition of agency found in the Open Meetings Act, which includes: (A) Every state department, agency, board, bureau, office, commission, public

corporation, and authority; (B) Every county, municipal corporation, school district, or other political

subdivision of this state; [and] (C) Every department, agency, board, bureau, office, commission, authority, corporation, or other political

or similar body of each such county, municipal subdivision of the state."

See O.C.G.A. 50-18-70(b)(I)(incorporating by reference O.C.G.A. 50- 14-1). The Open Records Act further stipulates that the definition of agency "shall

additionally include any association, corporation, or other similar organization that has a membership or ownership body composed primarily of counties, municipal

corporations, or school districts of this state, their officers, or any combination thereof

and derives more than 33 1/3 percent of its general operating budget from payments from such political subdivisions." O.C.G.A. 50-18-70(b)(1).

Significantly, "the Open Records Act requires the disclosure of documents possessed by a private entity performing a service or function for or on behalf of a public agency." United HealthCare, 293 Ga. App. at 87 (emphasis in original). Indeed, the Georgia Court of Appeals has repeatedly required such disclosures. For example, the court held that United HealthCare of Georgia, a private insurer, was subject to the Open Records Act where the records expenditure of substantial in question related to the of public

public funds and involved the participation

officials. ld. at 88. The court also found it persuasive that United HealthCare was a "vehicle" or "management tool" through which a public agency (the Department of

Community Health) carried out a public function. ld. In fact, it is settled law that the delegation of a "public function" to a private, nonprofit organization organization places that See Nw. Georgia

squarely in the purview of the Open Records Act.

Health Sys., Inc. v. Times-Journal, Inc., 218 Ga. App. 336 (1995) (holding that the
plaintiff nonprofit hospital was subject to the Act because it was a "vehicle through which the public hospital authorities carried out their official responsibilities");

Jersawitz v. Fortson, 213 Ga.App. 796 (1994) (holding that Olympic Task Force
Selection Committee was a vehicle for the Atlanta Housing Authority and therefore subject to the Open Meetings Act);

Hackworth v. Bd. Of Ed. etc., 214 Ga. App. (1994) company were subject

(holding that the personnel records of a private transportation

to disclosure because the company was the "management

tool" through which the

school board carried out its public function of transporting students). Moreover, the Court of Appeals has held that an organization may still be subject to the provisions of the Act, even if the organization does not receive the statutory threshold of tax dollars. Nw. Georgia Health Sys., 218 Ga. App. 336, 339

(rejecting the argument that only those private, nonprofit corporations which meet that tax-support test are subject to the Open Records Act). Here, the Gwinnett established independent, County Chamber of Commerce contends, contrary to

law, that it is not subject to the Open Records Act because it is an non-profit, member-funded organization. In fact, the Chamber's

membership is comprised of Gwinnett County, Gwinnett County Public Schools, and other public officials (http://web.gwinnettchamber .org/ Government-Offices).

Additionally, as indicated on 2010 Form 990, the Chamber receives 35 percent of its total operating expenses from government grants, a number that exceeds the 33 113 percent statutory threshold for defining an "agency." After Ms. Smith submitted the first of several Open Records Act requests, the Chamber amended its tax return to reflect a lower percent of income from government grants. Notwithstanding any accounting errors, the Chamber cannot escape

compliance with the Open Records Act merely by falling beneath the 33 1;3 percent threshold. See Nw. Georgia Health Sys., 218 Ga. App, at 339. Moreover, the Chamber of Commerce is within the reach of the Act by virtue of Partnership Gwinnett, which

is used as a vehicle to carry out the Gwinnett County Board of Commissioners' and Gwinnett County School District's economic development Gwinnett advertises as a public/private initiatives.' Partnership development Gwinnett

economic and community

initiative of the Chamber of Commerce. website, the program was "spearheaded and "has brought development." key public

According to the Partnership

by the Gwinnett Chamber of Commerce"

... players to the table to create ... quality local organizations Gwinnett, in United HealthCare, the Chamber of

Similar to the nonprofit Partnership

[ersauritz, and Hackworth,

and thus

Commerce, are "vehicles" and "management

tools" through

which the Board of

Commissioners carries out a public function. See UnitedHealthCare, 293 Ga. App. at

89;]ersawitz, 213 Ga.App. 796;Hackworth, 214 Ga.App. at 18-19.

Regarding the second question, if the documents are public records it must be determined whether they are exempt from disclosure under the Open Records Act. The statute provides a range of records that are not subject to public disclosure. While the exceptions set forth in the statute are plentiful, they shall be interpreted narrowly to exclude only those portions of records addressed by such exception. O.C.G.A. 5018-70(a).It shall be the duty of the agency having custody of the record to provide all other portions of a record for public inspection. O.C.G.A. 50-18-72(b).

1 Despite previous requests to Defendant Gwinnett County School District regarding a written agreement concerning the "economic development" services being provided to Defendant by Gwinnett Chamber of Commerce, which all responses declared that no such document existed most recently, subject to.a subpoena served upon Defendant Gwinnett County School District, i; appears that such an wntten agreement for such services does exist.

The purpose of many of the exemptions created by the General Assembly is to protect various types of confidential and medical information and prevent harm to any pending investigation. The information requested by the Plaintiff does not fall

into any of the stated exemptions, as they are records of the use of public funding and do not seemingly contain any sensitive material. If it is found that the records contain

confidential information that portion of the record may be excluded upon disclosure. CONCLUSION The failure of Gwinnett request Chamber of Commerce to disclose the documents to O.C.GA. 50-18-73 (including additional

by Sabrina Smith pursuant

subsequent requests) is an intentional and knowing refusal to honor a lawful request hereby denying Ms. Smith (as well as other concerned access to public records. citizens) timely and


For these reasons and those discussed relief to

above, Amicus Curiae respectfully Sabrina Smith. This

asks this Court to grant appropriate

day of

--;-( f1 ~
, ..'.UR.

, 2013.

Respectfully submitted,

Viola Davis, Amicus Curiae 909 Rays Road Stone Mountain, Georgia 30083 Taxpayer and Education Advocate Phone: 770-256-0034

CERTIFICATE OF SERVICE This is to certify that I have this day served a true and correct copy of the of

Amicus Curiae Brief, via First Class mail, proper postage affixed to ensure delivery of
same, to: Van Stephens, Esq. Attorney for Gwinnett County 75 Langley Drive Lawrenceville, GA 30046 Tom Tate, Esq. Attorney for Gwinnett Chamber & Partnership Gwinnett 1960 Satellite Blvd., Ste. 4000 Duluth, GA 30097 Victoria Sweeny, Esq. Attorney for Gwinnett County School District P.O. Drawer 1250 Lawrenceville, GA 30046 This5~aYOf

Viola Davis, Amicus Curiae 909 Rays Road Stone Mountain, Georgia 30083 Taxpayer and Education Advocate Phone: 770-256-0034