A lawyer for the first person ever criminally charged with violating Georgia's public records law asked a judge Monday to throw out the law's criminal statute.
Jenna Garland’s attorney, Scott Grubman, told Fulton County State Court Judge Jane Morrison the statute is unconstitutionally vague and worded in such a way the average person would not know what actions constitute criminal behavior.
Garland, a former press secretary to former Atlanta Mayor Kasim Reed, was charged in February with two misdemeanor counts of violating the Georgia Open Records Act. She’s accused of ordering a subordinate in 2017 to delay producing water billing records to Channel 2 Action News. The records contained information damaging to Reed, his family and several city councilmembers.
State law requires public agencies to respond to records requests within three days and provide records as soon as they are available. A criminal statute was added in 2012.
At issue is a portion of the law that makes it a crime “to knowingly and willingly frustrat(e) or attempting to frustrate the access to records by intentionally making records difficult to obtain or review.”
“We don’t believe this gives fair warning to (potential defendants) like Ms. Garland,” Grubman said.
He went on to argue that in the context of providing documents to media or public, “I do not know what it means to frustrate something.”
Senior Assistant Attorney General Blair McGowan said the language of the statute is clear.
To frustrate means “to impede or obstruct,” she said, and the broader statute defines a violation as “intentionally making records difficult to obtain or review.”
In March 2017, Channel 2 sought water bills from properties belonging to senior city officials. The city failed to produce the billing records for weeks and did so only after Channel 2 threatened a lawsuit.
Channel 2 and The Atlanta Journal-Constitution published text messages a year later that showed Garland told a subordinate to "drag this out as long as possible," "be as unhelpful as possible" and "provide the information in the most confusing format available."
The stories triggered a GBI investigation. Garland has pleaded not guilty.
The Garland case is being closely watched by government transparency advocates. The right of access to government records is a tenet of democracy and is guaranteed by federal law and codes in all 50 states.
In a separate motion, Grubman sought to prevent the state from calling two journalism professors as expert witnesses to testify on the importance of transparency laws and how journalists use these laws to dig for stories.
Grubman said such testimony would prejudice the jury against Garland.
Senior Assistant Attorney General Laura Pfister said the experts will explain how the state’s records law works, something the jurors likely do not understand.
During a two-hour interview with the GBI, she said, Garland told agents of her frustration with how journalists made open records requests for “fishing expeditions.”
Pfister said she expects defense witnesses to testify about journalists being “annoying and obnoxious and having it out for the city.”
The state intends to call its experts to explain to jurors how journalists gather information, how important the records law is and what would happen to government transparency without it. The law journalists use is also critical for regular people to obtain information from government.
“It is working in the background and it is especially working hard in the background for journalists,” Pfister said of the law.
Grubman said one expert should be dropped because he serves on the board of the Georgia First Amendment Foundation. The AJC and Channel 2 won $80,000 in legal fees from the city through a settlement over records abuses, and the media outlets donated the funds to the foundation, which Grubman said presents a conflict.
Morrison said she would rule before trial begins on Monday on the constitutionality question and Grubman’s request to strike the state’s expert witnesses.
She shot down a separate motion from Grubman arguing the state’s case was filed in the wrong court.
The AJC and Channel 2 Action News reported in March 2018 on texts by Jenna Garland, a press secretary for former Mayor Kasim Reed, that showed she counseled a subordinate a year earlier to delay a Channel 2 request for water billing records. State Attorney General Chris Carr opened a criminal investigation of the city’s open records practices following the reports, leading to two misdemeanor counts, the first-ever criminal complaint filed for alleged violations of the Georgia Open Records Act.