Georgia Attorney General Sam Olens (Alison Church/Freelance)
The state Law Department has made an about-face in an open records fight: first asking a judge to order a blogger to remove four pages of government documents related to Georgia Perimeter College, then on Monday withdrawing the motion.
The May 15 motion to Judge Robert McBurney of Fulton County Superior Court claimed the state’s open records law exempted those four pages from hundreds posted by the blogger because they mentioned candidates passed over in a search for a president at the college. The Law Department said the pages were produced accidentally, with about 12,200 others, in response to a request for records by then-student David Schick.
The state’s motion drew criticism from national journalism organizations. The Society of Professional Journalists urged its 8,000 members to post the documents themselves and then email Attorney General Sam Olens.
Olens led an overhaul of the state’s Open Records and Open Meetings Act, which passed the General Assembly in 2012. It established new exemptions and increased penalties for violations.
Schick’s pro bono lawyer, Daniel Levitas of Clements-Sweet, said, “I’m as pleased as I am perplexed by the withdrawal of the motion.”
He said he received a copy of a letter to McBurney from Olens’ staff attorney Kelly Campanella informing them of their intent to withdraw the motion.
Restricting something that has already been published “is contrary to decades of U.S. Supreme Court jurisprudence on the matter of the press and the First Amendment,” said Levitas. He said he was surprised the Law Department took its original position in light of Olens advocacy on the Open Records Act.
Olens was not aware that the motion was filed last week, said his spokeswoman, Lauren Kane. “Upon notice of the motion having been filed, the attorney general directed that the motion be withdrawn,” she said.
Senior assistant attorneys general Julia B. Anderson and Campanella signed the motion. Olens, Deputy Attorney General Dennis Dunn and Senior Assistant Attorney General Stefan Ritter had their names on the motion but did not sign it. Campanella signed the withdrawal letter to McBurney.
David E. Hudson, who worked with Olens on amending the open records law in 2012, said the motion would have likely failed anyway.
Courts rarely grant requests to restrain publication of government records or pull them back from the public, under the area of law known as the prior restraint doctrine, he said. “It’s only granted for reasons of national security, property damage or bodily harm,” he said. The doctrine “is almost insurmountable.”
In deciding to withdraw the motion, Olens “made a good decision,” said Hudson, a partner at Hull Barrett in Augusta.
The motion stems from a lawsuit Schick filed in July 2012, when he said Georgia Perimeter College and the University System of Georgia were blocking his requests for records. At the time, he was editor-in-chief of the school’s newspaper, The Collegian, and was investigating the college’s reported $25 million shortfall.
The university system, his suit said, told him in August 2012 that the cost of retrieving and providing the documents would be $2,963.39. Georgia Perimeter planned to charge him $927.99. Schick retained Levitas, who took the case at the request of the Student Press Law Center in Arlington, Va.
Levitas said he negotiated the University System’s bill down to $291 and to have it produce documents on a rolling schedule.
The documents include emails among top system officials, including Chancellor Hank Huckaby. They are posted on Schick’s website, ReportSchick.com. In that batch are the offending emails about failed applicants for the job as president of Georgia Perimeter.
Last month McBurney heard arguments over Schick’s request for $40,000 in attorney’ fees and costs, Levitas said.
McBurney has not issued his ruling. The case is Schick v. Board of Regents of the University System of Georgia, No. 2013CV232324.