Opinion: Public records belong to public

GBI agents Rocky Bigham, left, and Clinton Thomas interviewed AJC reporters Stephen Deere and Dan Klepal on March 16, 2018 concerning the city of Atlanta’s conduct in responding to open records requests. J. SCOTT TRUBEY / STRUBEY@AJC.COM.
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GBI agents Rocky Bigham, left, and Clinton Thomas interviewed AJC reporters Stephen Deere and Dan Klepal on March 16, 2018 concerning the city of Atlanta’s conduct in responding to open records requests. J. SCOTT TRUBEY / STRUBEY@AJC.COM.

A couple of weeks ago, two agents from the Georgia Bureau of Investigation showed up at the AJC's offices. It was the next step in an important investigation.

They came to interview a pair of our reporters.

But those reporters hadn’t done anything wrong — in fact, I’d argue they’d done some things that you’d see as honorable and important.

Let me explain.

Investigative reporter Dan Klepal has been digging into what’s really going on in the federal corruption investigation at Atlanta City Hall.

The federal investigation has led to guilty pleas from the city’s former top purchasing officer and two well-known city contractors. The U.S. attorney promises there is more to come.

As part of his work, Klepal did something our reporters do a lot: he made a request for documents from city officials, citing the Georgia Open Records Act.

Back in July of 2017, he requested invoices for all the legal work related to the Atlanta City Hall bribery investigation. After three months, city attorney Jeremy Berry got around to turning over what he said were 11 months of legal invoices. Klepal published a story about how much this whole thing was costing the city in legal fees.

In January, new city hall reporter Stephen Deere was familiarizing himself with the city. In a database of legal spending, he noticed an item with the description “Whistleblower Complaint” totaling nearly $1 million. So, of course, he asked for copies of the bills related to that case.

Once Deere received the invoices, he and Klepal noticed something odd. The invoices — one set supposedly for bribery legal work and the other for the whistleblower case —were incredibly similar. They shared many of the same line items, came from the same law firm, and billed for the same meetings and activities conducted by the same lawyers on the same dates.

It was a puzzle. Could the law firm be billing for the same work twice? Our reporters doubted that was the case but there was no apparent explanation.

After they pressed Berry and other city officials for explanations, the city and the law firm acknowledged that only the documents given to Deere were actual invoices.

It turns out that Atlanta officials, months before Klepal’s request, decided to hide legal billing records for the bribery investigation in the account of a different case. When Klepal asked for the records, Berry decided not to disclose the decision — a decision apparently made by a prior city attorney — but instead asked the law firm to create billing “summaries” resembling invoices to satisfy Klepal’s request.

Here’s the problem with that: public officials are required to turn over the documents that are created as a result of government’s work. They aren’t supposed to create “summaries” or new documents that leave out information. Sometimes to satisfy a public records request efficiently, requesters and governments agree on some other form of records than the original — but that’s an agreement between both sides for efficiency. Creating a new set of documents, and keeping the reporter in the dark, is hardly efficient.

Public agencies don’t get to decide what is or isn’t a public record. Whether a reporter or a private citizen requests a document, the law requires it be provided in full or the requester be notified what specific section of legal code allows a denial or redaction of the document.

Experts say the city's actions — both hiding the legal billing in unrelated cases and creating summaries that were presented to Klepal as actual invoices — ranged from unethical to potentially criminal.

State law prohibits forging, altering or falsifying public records, and makes such conduct punishable “by imprisonment and labor in the penitentiary for not less than two years nor more than ten years.”

“I would say these appear to be felonies,” said Clark Cunningham, a Georgia State University professor of law and ethics, who reviewed the billing records for the AJC. “The question is whether the city can adequately come up with justifications.”

The state’s law governing open records was rewritten in 2012, as part of an effort to improve the right of Georgia citizens to know what their government does.

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Kevin Riley

Kevin Riley
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Kevin Riley

That’s an important point. When the AJC makes these kinds of public records requests, we are exercising the same right any citizen has.

Of course, as they say, it’s tough to fight city hall — especially if you are a private citizen. So we see it as our duty to do so on your behalf. We have the time and resources to make government responsive.

We often run into public officials who are less than enthusiastic about providing public records. The state legislature, which wrote the law that Gov. Nathan Deal signed, actually exempts itself from the Open Records Act.

At Atlanta City Hall, the pattern is worse than elsewhere. In fact, the GBI is also looking into the actions of a spokeswoman on former Mayor Kasim Reed's communications staff, who apparently tried to slow down Channel 2 Action News when a producer asked for water bills at the addresses of the city's top elected officials.

Text messages show the mayor’s office instructed staff members “be as unhelpful as possible” and to “drag this out as long as possible” when fulfilling the information request.

The guidance included instructions to “provide the information in the most confusing format possible.”

That sure looks a lot like what the Georgia Open Records Act expressly prohibits, saying that government officials must provide responsive documents within three business days of a request if they are available. Obstructing or “frustrating” the release of documents is explicitly prohibited.

“Any person or entity knowingly and willfully … frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor,” the statute says.

Now the GBI is investigating this behavior as a criminal matter. Attorney General Chris Carr ordered the investigation, and it’s the first time such an investigation has occurred under the Georgia Open Records Act.

GBI agents met for about two hours in separate interviews with Deere and Klepal.

The interviews focused on the conduct of the city’s law and communications departments in relation to the invoices and the city’s overall responsiveness to open records requests.

Our hope is that this investigation reminds politicians and their staffs, all of whom love to talk about transparency and openness in government, just how important those things are to our democracy.

Public records are public because they belong to you — you and other taxpayers paid to create them and, of course, you paid for all the work they record and represent. So no one should be looking for ways to keep them secret from you.

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