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No ‘magic shield’ protects agencies targeted by investigators
A blog about public records …
By JIM WALLS
Exactly three years ago today, I requested records of credit card statements for former Clayton County Sheriff Victor Hill. A week or two later, after someone let it slip that the sheriff’s office had a bank account that other county officials didn’t know about, I asked for those records too.
I’m still waiting. Legally, though, there’s no valid reason that I should be.
I ran across some of the relevant emails this week just as news was breaking that Hill might be indicted soon for theft, racketeering and other allegations. He’s been told a grand jury will meet Jan. 18 to consider the charges.
Back in 2009, Clayton County officials were preparing to release the credit card statements and related documents that I requested. Then they decided they weren’t, citing a pending investigation into Hill’s use of public funds.
Georgia law allows “law enforcement, prosecution, or regulatory agencies” to keep case files confidential in investigations of criminal or unlawful conduct. There is no such protection, though, for records that are kept as a matter of routine by agencies doing the public’s business — even if that business becomes the subject of a criminal investigation.
Lawyers who work with the Open Records Act a lot — including media lawyers and the Georgia attorney general’s office — understand this principle. But try telling that to a government official who’s looking for a reason to keep records from becoming public.
In 2009, I tried the Clayton County sheriff’s office, the finance department, the county attorney and the county commission’s chief of staff to see what Hill had been charging to the county. I got squat.
Clayton County’s not the only local jurisdiction abusing the investigative exemption. Atlanta Public Schools tried it recently during the CRCT cheating scandal and, eight years ago, when the feds found the system had squandered millions of dollars in technology money. Fulton County cited the same exemption last year after an internal investigation found $183,000 in credit card charges that benefited a few employees and their event-planning business.
Attorney General Sam Olens’ office takes the position that the law does not protect agencies that are under investigation from producing documents. But, senior assistant attorney general Stefan Ritter told me today, “Some local governments do not always agree with our interpretation.”
The exemption is meant to prevent investigators from being forced to produce files on open cases. Even then, that protection only applies an agency has an investigative duty as part of its mission, Ritter said.
“The target of the investigation is not allowed to use the investigative exception as some sort of magic shield,” he said.
But they do anyway — and they’ll keep doing it — if we let them.