by Stanley Dunlap, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

May 15, 2024

Georgia’s Supreme Court will rule in the coming months on a claim Athens-Clarke District Attorney Deborah Gonzalez is arguing that top prosecutors are exempt from the state’s open records laws.

Supreme Court justices heard arguments Tuesday pressing the case that the trial court failed last year to address a constitutional provision in denying her motion to dismiss an open records complaint filed by local resident Jarrod Miller. Fulton County District Attorney Fani Willis has made similar immunity arguments regarding an open records complaint related to the 2020 presidential election interference case against Donald Trump and his Republican allies.

In Gonzalez’s appeal, she claims that despite the understaffed district attorney’s office, attorney Kevin Epps has consistently requested public records on Miller’s behalf since she took office in January 2021. Epps’ requests, including more than 50 over a three-month period in 2023, seek two years’ worth of communication on everything from her office’s cases to staff training for University of Georgia football games and Zoom meetings.

Miller argues that the Athens-Clarke DA’s office failed to process a number of records in a timely manner and alleges that Gonzalez ordered a staff member to delete text messages related to an open records request. Miller claims that the Supreme Court of Georgia has never held that the open records act does not apply to judicial branch members or offices.

Gonzalez’s attorney Derek Bauer argued Tuesday that even the General Assembly can’t regulate public access to the DA’s records and that only the state Supreme Court has that authority. Miller does not have the right to sue the district attorney because he did not submit the open records act requests listed in the complaint, and thus cannot demonstrate what type of injury he suffered as a result of DA failing to comply, according to Gonzalez.

Bauer also said that the district attorney’s constitutional immunity also shields them from civil penalties if a private citizen sues to enforce the open records act.

Bauer said in court Tuesday that even if the Supreme Court justices disagree with those first two theories, there still is enough legal grounds to prevent someone like Miller from enforcing public records requests that were submitted by an attorney on his behalf.

“We say no based on settled principles of constitutional standing, and Georgia’s rule that every action must be brought by the real party in interest and not a proxy plaintiff,” Bauer said.

Justices peppered Gonzalez’s attorney with questions about the logical reasoning he used to argue that district attorneys aren’t subject to public records laws.

Presiding Justice Nels S.D. Peterson said that Georgians have had legal standing for nearly two centuries to petition a court to force a government official to fulfill a duty. Peterson asked Bauer why he felt a Georgia resident does not have legal standing to force a public official, such as a district attorney, to provide requested documents to them.

“It seems to me that a lawsuit to compel the production of documents that the open records act requires to be produced is akin to a claim for mandamus,” Peterson said, referring to a petition to force a public official to do their job.

Bauer emphasized the importance of a real party in interest making an open records request. A legally binding open records request must be filed by someone directly affected by the outcome, he argued.

“Before any legal duty can attach in the open records act, there has to be a request,” Bauer said. “And that requires that the request be made by the real party in interest. Not any citizen can enforce that.”

Justice Sarah Hawkins Warren also questioned Bauer’s claim that a lawyer can make an open records request on their own volition but that they are also legally required to disclose to a state official if they are doing so on behalf of a client.

“The lawyer could just file the exact same thing the very next day asking for the exact same documents because he’s permitted to do so under the open records act,” Warren said. “Why does that destroy the ability to do it through this vehicle?”

Bauer said that it makes a huge difference if a public official is not entitled to ask a lawyer who they’re representing in an open records filing.

Bauer said that if anyone was able to enforce someone else’s request, this would lead to a “race to the courthouse” to gain access to government records.

“I typically represent newsrooms, news media who use the open record act as a news gathering tool all the time. This court will be saying hey, if Channel 2 issues an open records act requests for news gathering information. If Channel 11 learns about it then Channel 11 can go race to the courthouse to enforce somebody else’s request first.”

Justice Andrew A. Pinson said this case is about enforcing a public right, which is different from a private rights case in which someone makes a trespassing complaint and “then somebody else says, ‘hey, there was trespassing over there. I want you to enforce whatever judgment.’”

According to Bauer, a DA’s office cannot be sued for violating public records rights due to the separation of powers between state government branches. While most state public agencies and offices must comply with open records laws, DAs are protected as constitutionally elected officials.

“DA’s have always been constitutional officers of this branch, not the executive branch, even though they don’t do judgy things like decide cases, but they do plenty of judgy things like advise grand juries,” Bauer said.

Chief Justice Michael P. Boggs said the court has held that the judicial power belongs exclusively to the court and not with a local prosecutor.

“How do we extrapolate from that that a DA, under any circumstances, is exercising judicial powers,” Boggs said.

Over the past couple of years, Gonzalez and Willis have become targets of GOP lawmakers.

Republican legislators have created a new district attorney oversight commission that will have the power to remove prosecutors who refuse to tackle certain crimes, are negligent, or fail to fulfill their duties.

Gonzalez has come under scrutiny for her publicly stated policy of not prosecuting minor marijuana possession or abortion cases.

Willis has publicly condemned a GOP-led “witch hunt” against her while defending her decision to investigate Trump and several co-defendants for conspiring to overturn the 2020 presidential election in Georgia and other states.

The Fulton DA’s office has become embroiled in an open records battle with the far-right America First Legal, which filed a complaint against Willis for denying records related to communications with the Biden White House and U.S. Justice Department regarding the sweeping investigation that led to felony racketeering charges against Trump and 18 co-defendants in Georgia in August.

Willis has sought to dismiss the complaint from America First Legal, arguing that the Fulton DA’s office cannot be sued. The open records lawsuit filed on behalf of Bentley Media Group against Willis is pending Fulton County Superior Court.

The America First Legal Foundation has filed an amicus, or “friend of the court,” brief with the Georgia Supreme Court in support of Miller’s case against the Athens-Clarke district attorney.

Miller’s court filing argues that the Georgia Supreme Court has never explicitly ruled that all public officials and offices in the judicial branch are exempt from the open records act, and district attorneys are only immune from litigation involving private rights related to their prosecutorial duties. Miller also said that as a community stakeholder, he has the right to enforce the public records law in Athens-Clarke.

“When (Gonzalez) eventually gets around to this central question, she first deflects by noting that the District Attorney herself is not an ‘agency,’” the legal foundation brief states. “Of course not– her office is. The district attorney is the alleged custodian of her office’s public records.”

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