If evidence supports charges, he wrote, “only individuals would be criminally charged.”
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McLaughlin’s letter removes potential criminal liability for the municipality, but legal experts say the city could still face civil penalties under the Georgia Open Records Act, which calls for fines of up to $2,500 per violation.
“A local government could be held civilly responsible under the open records act, but whether a city could actually be held criminally responsible is an open question under the Georgia open records law,” said Gerry Weber, a lawyer and expert in constitutional law.
The Atlanta probe is the first criminal investigation under the state sunshine law since it was amended in 2012 to include criminal penalties.
Georgia’s sunshine laws were written to ensure that governments remain accountable to citizens. State law requires public agencies to respond to records requests within three days and provide records as soon as they are available.
Frustrating requests is a misdemeanor and punishable by up to a year in jail.
Focused on ‘bad actors’
The letter shows the city sought to understand its legal liability and wanted staff attorneys and ones from law firm Dentons, its outside counsel in the matter, to attend interviews with city officials.
The AG’s office and the Georgia Bureau of Investigation did not believe that was appropriate, McLaughlin wrote.
McLaughlin referenced conversations with Dentons and “concern the city itself might be charged” with a crime.
September 2, 2015 Atlanta: Mayor Kasim Reed (left) with director of communications, Anne Torres (right), in 2015. JOHN SPINK / JSPINK@AJC.COM
Given assurances the city would not be charged, McLaughlin said, he understood lawyers from Dentons and the city would not attend GBI interviews. Employees are, however, allowed to bring their own attorneys.
“I think the attorney general’s office has made it clear they are focused on the individual bad actors,” Weber said. “Now the city should be fully, fully cooperative with the attorney general’s office, because there is no risk under this letter for the city for criminal violations.”
Greg Lisby, a Georgia State University communication professor who teaches communication law, called the AG’s office move a “get-out-of-jail-free card” for the city.
“Normally people cooperate more quickly with the threat of prosecution hanging over their head as to opposed to having the threat of prosecution removed,” he said.
The GBI and the AG’s office declined comment.
In a statement, Bottoms’ office said “The City continues to work with the Attorney General’s office to ensure that we are compliant with the spirit and the letter of the law.”
The letter was addressed to Chicago-based Dentons partner Rachel Cannon and Atlanta partners Sam Olens and Thurbert Baker. Cannon is a former assistant U.S. Attorney, and Olens and Baker, respectively, served as Georgia’s two most recent attorneys general.
Olens and Baker both were known as champions of public access during their respective stints as Georgia’s top law enforcement official.
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The GBI probe started in March after the AJC and Channel Action News 2 reported on efforts by a press secretary for former Mayor Kasim Reed, who instructed another staffer in the city's watershed department to delay production of water billing records for city elected officials to Channel 2.
Subsequent reporting found the law department provided legal invoices to the AJC last year that weren’t genuine records.
This text exchange between then-Atlanta Watershed communications manager Lillian Govus and former Kasim Reed press secretary Jenna Garland shows the two discussing how to handle a Channel 2 open records request for Commissioner Kishia Powell’s travel records. Govus’ texts are in blue.
Text messages by Reed's former top spokeswoman, Anne Torres, showed she pressured the Atlanta Beltline CEO to ignore the agency's attorney and delay the release of the CEO's employment contract.
Other text messages obtained by the AJC and Channel 2 raised questions about whether Reed may have played a role in delaying production of travel records for Watershed Commissioner Kishia Powell.
Reed and others have denied any wrongdoing.
In April, the AJC and Channel 2 Action News filed a complaint with the AG's office alleging "a culture of political interference" with open records requests and seeking mediation to reform city behavior. It also seeks the appointment of an independent public records officer who would be free from political meddling.
Mayor Keisha Lance Bottoms has pledged to reform the city's open records practices. On May 7, three days after McLaughlin's letter was drafted, Bottoms introduced new legislation that would create a "transparency officer" to ensure compliance with state sunshine laws, echoing the AJC/Channel 2 request.
March: Reports by the AJC and Channel 2 show the city of Atlanta's communications and law departments attempted to hinder production of public records.
April: The AJC and Channel 2 file a complaint with Georgia Attorney General Chris Carr's office alleging "a culture of political interference" with open records requests.
Monday: A letter in May from Carr's office states that the AG's office does not intend to bring criminal charges against the city, but could against individuals.