The administration of Atlanta Mayor Kasim Reed has put a lock on public documents that could shed light on the bribery scandal enveloping City Hall — a move that First Amendment experts say stonewalls the public’s right to know about city operations, and could violate the state’s sunshine laws.
The Atlanta Journal-Constitution and Channel 2 Action News have been denied numerous requests for information about Elvin “E.R.” Mitchell Jr., a prominent Atlanta construction contractor who federal prosecutors say is the central figure in the million-dollar corruption scheme.
The city’s law department has cited the on-going federal investigation as its reason for withholding the records, which include emails between city officials that mention Mitchell or his companies, and contracts awarded to his companies. Experts say the city’s position seems to conflict with the state’s sunshine law, which does not allow governments to withhold records from the public just because they may be related to an investigation. Many of the records being requested were generated long before there was any investigation into Mitchell.
The city’s posture also contradicts actions taken by Reed’s predecessor. During the administration of former Atlanta Mayor Shirley Franklin, the city released records related to airport contracting and other city business during an ongoing federal investigation of former Mayor Bill Campbell and other officials.
Reporters questioned the mayor about the city’s position at an event Thursday, the day after Mitchell pleaded guilty in federal court to one count of conspiracy to commit bribery and launder money. Mitchell admitted to providing more than $1 million in bribes to an unnamed individual from 2010-15 , under the belief that portions of the money would be given to one or more city officials who could deliver construction contracts to his company.
When asked why his administration has not released public records created years before the investigation, Reed said: “You don’t know how long the investigation has been taking place. So you don’t know the facts.”
Reed later acknowledged to reporters that his administration has been cooperating with federal authorities on the investigation for only “several months.” The mayor wouldn’t say if any of his current or former staff members have been interviewed.
Two days earlier and the day before Mitchell appeared in court, the city told the AJC it would provide some of the requested records for a payment of $1,135. When the AJC sought to narrow the request to reduce the cost and expedite their release, the city rescinded its approval and issued blanket denials for all subsequent requests, saying the on-going federal investigation allowed them an exemption under Georgia’s open records law.
Asked why the city reversed itself, City Attorney Cathy Hampton wrote that the city’s position was evolving.
“The City’s top priority is full cooperation with the ongoing investigation,” Hampton wrote in an email. “As such, our response to records requests must evolve as the investigation evolves.”
Neither Mayor Reed nor a spokesman for the U.S. Attorney’s Office would comment when asked if federal officials requested that the city withhold documents from the public.
Records ‘of keen public interest’
David E. Hudson, an attorney with the Hull Barrett law firm in Augusta and general counsel for the Georgia Press Association, said the city has no basis to withhold the documents because they were created during the normal course of business.
“There’s nothing here generated by the investigation itself,” said Hudson, who added that the state’s sunshine laws were drafted with the presumption that documents must be produced, and that exemptions be narrowly construed. City records belong to the public, he said, and citizens are entitled to know how their government officials have conducted themselves on the public’s behalf.
“They are servants of the people and they ought to let the people know what they’ve done,” Hudson said.
Hollie Manheimer, executive director of the Georgia First Amendment Foundation, agreed saying the investigation exemption “is not applicable in this case.”
“The kind of information sought in this instance is a subject of keen public interest and it is unfortunate that the city seeks to hide this information as opposed to share its operations with the public,” she said.
Hampton said the city is “confident that our responses comply with all relevant law and look forward to disseminating all non-exempt records at the appropriate time.”
The AJC and Channel 2 have retained lawyers to rebut the city’s position.
The city’s denials to AJC requests were all worded the same.
“As you are aware, the Department of Justice is currently conducting an investigation into alleged attempts to bribe individuals to obtain City of Atlanta contract opportunities,” say the emails from senior assistant city attorney Kristen Denius. “The integrity of the city’s procurement processes is of utmost concern and complete cooperation with this investigation is the topmost priority of the City of Atlanta.
“At this time, the city has determined that all records related to the ongoing investigation are currently exempt from production under the Georgia Open Records Act. Accordingly, no records will be released until the Department of Justice investigation and/or prosecution of this matter is concluded.”
City claims exemptions
There are two exemptions cited by the city.
The first allows records to be withheld when they have been “compiled for law enforcement or prosecution purposes to the extent that (their) production … is reasonably likely to disclose the identity of a confidential source, disclose confidential investigative or prosecution material which would endanger the life or physical safety of any person … or disclose the existence of a confidential surveillance or investigation.”
The city does not say how contracting and procurement records would disclose the identity of a confidential source or meet the other conditions of the exemption.
The second exemption cited is for records “of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity.”
But that exemption also says it “shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.”
For example, the Atlanta Public School system provided records to the AJC during the Georgia Bureau of Investigation’s probe into the district’s test-score cheating scandal. The AJC’s reporting sparked that investigation.
State Sen. Josh McKoon, R-Columbus, called the city’s denial of records “wildly improper,” because the documents requested by the AJC originated before the federal investigation, and because city investigators have no role in the federal probe. He said such denials erode the public’s confidence in government.
“You can’t use Open Records Act exemptions as a shield because you’re being investigated by another entity,” said McKoon, who is an attorney. “The idea that because an investigator has requested a record that it somehow shields the record from disclosure is absurd.”