GeorGIA DEPARTMENT OF Law 40 CAPITOL SQUARE SW SAMUEL S. OLENS ATLANTA, GA 30334-1300 wondanga.gov [ATTORNEY GENERAL (404) 656-3300 Writer's Direct Dial: 404-656-4168 Fax 404-657-9932 July 20, 2015 jcolangelo@law.ga.g0v Christopher D. Balch, Esq. Balch Law Group 1270 Caroline Street Suite D120-315 Atlanta, Georgia 30307 RE: Open Records Act Complaint regarding the City of Brookhaven Dear Mr. Balch: am writing to you in your capacity as the attomey for the City of Brookhaven, Our office received a complaint from Trey Benton, the editor of the Brookhaven Post, alleging that the city violated the Georgia Open Records Act (ORA) when it failed to produce an email responsive to his open records request, and later produced an improperly redacted document. Mr. Benton also questioned the legality of the City Council discussing the release (or non-telease) of the email in executive session, and asked whether the City’s actions could be considered a violation of OCGA. § 45-111. Under Georgia law the Attorney General, as an independent constitutional officer, has the discretionary authority to enforce the Open Records and Open Meetings Acts. 0.C.G.A. §§ 50- 18-73(a), 50-14-5(a). The Attorney General has chosen to exercise that discretion by establishing a mediation program where citizens may raise issues and concerns with us regarding the Acts and we will attempt to resolve disputes, if possible. This office also reserves the right to civilly and criminally prosecute such matters where it deems doing so is appropriate. In this case, we have determined that the City violated the Open Records Act in the following manner: (1) The April 17, 2015 request from Trey Benton On April 17, 2015, Trey Benton sent a request to Susan Hiott, the City Clerk, asking for “copies of any correspondence between City Manager Marie Garrett and HR Director Rick Stone concerning an incident involving former employee Susan Cannon and Mayor J. Max Davis ‘where Cannon was sprayed with a household product.” At that time, the City had documents that were responsive to this request - specifically, an email that was sent from Garrett to Stone on March 18, 2015. On April 28, 2015, Susan Hiott emailed Trey Benton and responded: “Please be advised that any such records are privileged and not subject to disclosure at this time pursuant to Section 50-18-72(a)(8) of the Official Code of Georgia Annotated.” That paragraph of the Open RecordsChristopher D. Balch, Esq. July 20, 2015 Page 3 Act exempts “records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees...” However, that email was not created as part of attomey Thompson Kurrie’s investigation. It was sent by Garrett to the HR Director because that was part of the normal city procedure for filing a complaint. The fact that the email was later used in an investigation did not make it “material obtained in investigations...” because the City did not obtain it through the investigation. As noted by the Supreme Court in Fincher v, State, 213 Ga. App. 49, 51 (1998), the email did not become an exempted record of the investigation simply because it was placed in an investigative file, The City already had the email in its possession, and would have had the email even if no investigation occurred. ‘Therefore, that exception did not apply, and the email should have been released in response to Mr. Benton’s request. (2) Mr. Kurrie’s May 14 response to media requests On May 14, 2015, Mr. Kurrie sent an email to various media outlets, in response to Open Records requests that had been received by the city. In that email, he stated that a redacted version of the email would be released. He cited the following reasons for redacting the email: federal law required an EEOC complaint to be kept confidential; the privacy interest of certain individuals outweighed the public need for disclosure of the email; and the email was confidential attorney work product, exempted under O.C.G.A. § 50-18-72(41) and (42). These redactions were improper, and the entire email should have been released at that point. First, the email could not be considered part of the record of the EEOC complaint. The email itself was not an EEOC complaint, and it was sent at least a month before any EEOC complaint ‘was filed. The letter does not mention any EEOC complaint, and there is no basis under federal law to withhold it, ‘Second, one of the cases cited in Mr. Kurrie’s email, Fincher v. State, does discuss the issue of privacy as it relates to the release of public documents under the Open Records Act. However, that case concluded that “the public interest in obtaining the information outweighed Fincher’s privacy interest,” and the court found that the records of Fincher’s “improper activities in the workplace” should be released. Given the similarity of the facts of that case, the City should have concluded that Garrett’s email should be released. Any concerns for the privacy of the witnesses to the incident could have been dealt with by redacting their names, which was done when the full email was later released. Finally, the email from Garrett to Stone was not attomey work product, and was not privileged attorney-client communications. As noted above, the email was not sent to the city attorney, Mr. Kurrie, and when written was not intended to be part of any investigation conducted by him. ‘The work-product doctrine only protects documents prepared by attorneys in anticipation of litigation for the purpose of analyzing and preparing a client’s case. And the fact that the un- redacted part of the email is the part that actually discusses the incident being investigatedChristopher D. Balch, Esq. July 20, 2015 Page 3 contradicts the claim that the email was part of the investigation. Therefore, the email should not have been redacted on that basis. (3) Discussion of the letter in executive session During the time that multiple requests for the email were being received by the City, the City Council discussed the issue of the release of the email in executive session during their public meetings, O.C.G.A. § 50-14-3(b)(4) does allow executive sessions to be used to discuss the contents of records that are exempted from disclosure under the Open Records Act. However, as noted above, the email was not exempted from disclosure, and therefore should not have been discussed in executive session. Given that the letter was not exempted from disclosure, I am requesting that the City release that portion of the executive session minutes, in the interest of openness. (4) Conduct falling outside the Open Records Act When the March 18, 2015, email was released on May 14, Mr. Kurrie did state that the email had been redacted, and cited the code sections he was relying on as the basis for that redaction. However, the method of redaction that was used — physically rearranging the paragraphs of the email, and only blacking out a few of the redacted parts ~ prevented the public from knowing how much of the email had been redacted. Mr. Kurrie then apparently made misleading public statements about the contents of the redacted portions of the email, statements that only appeared true due to the improper redactions of portions of the email that would have materially contradicted Kurrie’s public statements. The statements apparently made by Mr. Kurrie do not constitute violations of the Open Records Act. Our office is not charged with deciding whether his statements and conduct may have violated other provisions of state law. In conclusion, I request that the City release any other documents in its possession that are related to this issue, Keeping in mind the above discussion about the inapplicability of the previous justifications for failing to release the March 18, 2015, email. Sincerely, Demnder Covangeto JENNIFER COLANGELO ‘Assistant Attorney General ce: Trey Benton, Editor, The Brookhaven Post