A law firm with close ties to former Mayor Kasim Reed presented a defense to the GBI that current and former city officials of his administration did not break the law last year in response to public records requests from The Atlanta Journal-Constitution and Channel 2 Action News.
Holland & Knight delivered its legal defense to the GBI, which is investigating the city’s compliance with open records laws, in a 24-page PowerPoint on March 22. The firm concluded its work for the city March 28, billing $57,000.
Earlier reporting from the AJC and Channel 2 raised questions about Holland & Knight’s involvement because partner Robert Highsmith has represented Reed personally and politically, and because the city paid the firm $88,000 last year for advice on open records issues. The firm was hired for the open records case by City Attorney Jeremy Berry, whose actions responding to an open records request are under GBI investigation.
The firm argued that Berry, whose resignation Mayor Keisha Lance Bottoms accepted last week, did nothing wrong. It also contended there was no wrongdoing by former press secretary Jenna Garland, who had texted a Watershed official to delay providing records to a Channel 2 request for water billing records, and to present the information in the “most confusing format available.”
The PowerPoint called the text exchanges “tongue in cheek.”
News organizations rely on Georgia’s sunshine laws to hold government officials accountable and report how they spend taxpayer money. The water billing records being sought revealed that Reed, his brother Tracy and some City Council members, including Bottoms, were delinquent.
The records involving Berry pertained to Baker Donelson legal invoices showing how much taxpayers were spending for outside legal advice to respond to the federal bribery investigation at City Hall. An AJC investigation found Berry produced what he claimed to be legal invoices, but the documents weren’t the actual legal invoices.
“The city provided the records requested by the AJC with regard to the Baker Donelson billing records and there has been no violation of the Open Records Act, or any other law, or any attempt to deceive the public,” the presentation says. “The city did not violate the Open Records Act when it produced certain water billing and usage records that were timely produced and were not required to be produced under the Open Records Act exemptions.”
Greg Lisby, a Georgia State University communication law professor, said Holland & Knight’s PowerPoint takes “the broadest possible brush to basically exonerate the entire city of Atlanta.”
“My first question is: What was the city paying for?” Lisby said. “Because if the city was paying for analysis, they didn’t get an analysis. If the city was paying for a defense, they got a defense.”
It is unclear how much the city will rely on the PowerPoint since it has replaced Holland & Knight with two attorneys with strong records on government transparency, former attorneys general Thurbert Baker and Sam Olens with the Dentons law firm, to represent it in the GBI investigation and the mediation request filed by the AJC and Channel 2.
A city spokesman said Baker and Olens “will continue to represent the City with the pending inquiries and (in) advising on new reforms the City may adopt to strengthen the City’s compliance with the Open Records Act.”
City Council President Felicia Moore said she’s glad Holland & Knight’s work is over, so the city can “stop bleeding money.”
“If we hired them to make determinations about what was right under the law, we could have waited for the GBI to make their determinations and it wouldn’t have cost us anything,” Moore said.
Water billing records
In March, the AJC and Channel 2 obtained text messages from the personal cell phones of press secretary Garland and Lillian Govus, who worked as a communications officer in the city’s Watershed Department.
Govus alerted Garland to a Channel 2 open records request for water billing records for Kasim and Tracy Reed. Days later, Channel 2 requested water bills for City Council members.
Garland instructed Govus through the messages to “be as unhelpful as possible” and to “drag this out as long as possible” when fulfilling the requests. Garland ended the exchange by telling Govus to “provide the information in the most confusing format available.”
At another point, Garland instructed Govus to not release the records until the Channel 2 asks for an update. The city only turned over the records after Channel 2 hired an outside law firm and threatened to sue.
The Holland & Knight PowerPoint says the open records act exempts records that reveal a home address or utility account number — an assertion that Michael Caplan, the attorney handling the case for AJC and Channel 2, strongly disputes.
Caplan said that water bills are public records, and the city failed to cite this exemption after the request was made.
“Although we will not comment on the pending GBI investigation, we disagree with the City’s legal argument that the water billing records of Atlanta city officials are not public records subject to the Open Records Act,” Caplan said. “Water bills, like tax assessments, are public records. Moreover, these water bills did not include the names or other personally identifying information of any city officials.
“Even when public records include such private information, the City is still required to produce the records with the private information redacted.”
The PowerPoint, which misspelled Govus’ name twice, also says the law does not “require the production of records by any specific deadline when they are not immediately available,” and that the city was “overwhelmed” by records requests at the time.
“There is no evidence that anyone altered or otherwise attempted to make the requested water billing records more confusing,” the report says. “Requested records were provided in a timely manner.”
Contrary to Garland’s directive to make the records “confusing,” the PowerPoint says that Garland suggested to Govus that the documents be changed to make them easier for the media to understand. A city spokesman says that assertion was made during Garland’s interview with Holland & Knight attorneys.
Since the PowerPoint was produced on March 22, the AJC has reported on another incident in which Reed’s communication staff tried to compel a senior city official to delay production of public records through text messages sent to and from private cell phones.
Communications Director Anne Torres told Atlanta Beltline CEO Brian McGowan to ignore Beltline General Counsel Nina Hickson’s advice to comply with an open records request for McGowan’s contract, with Torres suggesting that he should talk to Reed “about how to deal with her.”
“If she wants to work for the media, then she should leave her position,” Torres said of Hickson in a Sept. 27 text to McGowan. “We can hold whatever we want for as long as we want.”
Beltline officials resisted Torres’ pressure, which she later called “banter,” and provided the records in compliance with the law.
In July of 2017, the AJC requested all invoices submitted by the law firm Baker Donelson for its work in relation to the federal corruption investigation at City Hall.
Months later, Berry produced 11 months of documents that he called invoices and that resembled authentic legal bills. The AJC published a story saying the firm had billed city taxpayers $1.4 million for the work.
But the AJC and Channel 2 reported in March that Atlanta officials hid legal billing records for the bribery investigation in the account of a different case and directed the creation of new documents resembling invoices to satisfy the AJC’s records request. Experts say the actions ranged from unethical to potentially criminal.
Berry defended his handling of the AJC’s request by saying that the documents he produced were permissible “summaries” and that he acted in good faith, citing a section of the Georgia Bar Rules of Professional Conduct.
Holland & Knight reiterated that defense: the “statute does not dictate the manner in which the information must be produced. Mr. Berry’s description of the information as invoices is irrelevant to the analysis.”
The AJC/Channel 2 complaint to the attorney general’s office says Berry’s actions were a violation of the open records act because he failed to inform the media companies that information on the requested invoices was being withheld.
“The city’s failure to disclose that it withheld responsive records is a violation of the Open Records Act,” the complaint says.
When asked if it is the city’s position is that no laws were broken, a mayoral spokesman said the “ultimate” decision on that will be made by the GBI and attorney general.