City manager responds to Open Records stand off

Publisher’s note: In response to an article that appeared in the June 8, 2017, print edition of The GRIP – City of Griffin, GPD Chief Yates refuse release of records; Records denied on officer who resigned in lieu of termination – Griffin City Manager Kenny Smith wrote the following letter to the editor, which was printed in the June 22, 2017, print edition. It appears here in its entirety.

Dear Sheila,

In light of the article published in the newest edition of the GRIP, I feel it is important to express the City’s position in regard to the Georgia Open Records Act, and your perception of that act as it pertains to requests you have made under its authority, specifically the February 3, 2017 request discussed at length in your paper.

As a member of the press and an active business owner in this community, you are extremely familiar with the mandates for local governments through numerous legislative actions – only one of which is the Georgia Open Records Act. The Act provides that “the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.” O.C.G.A. § 50-18-70(a).

The City has worked diligently in preparing every single request you have made under the Act, more often than not days before the prescribed three-day deadline. Even when your request has been of documents that are not producible under the Act, either temporarily or permanently, the City has responded quickly and succinctly to your requests with explanations as to why the documents cannot be produced. The February 3 request has been, and continues to be, treated no differently. Information provided to you, either erroneously or otherwise, in prior requests is not a basis for providing information for the February 3 request – only the law can dictate those parameters.

The February 3 request, which we asked you to clarify on February 7, was answered in the most efficient, timely manner within the parameters of the law, on February 10, 2017. Since that date, the response to your request has remained in my office for your review. Instead, there have been multiple challenges, communications, explanations, and opinions exchanged as to why the City should not charge you for the time expended to answer your request.

In standards similar to those held by responsible, ethical journalists, it is the City’s intention to always admit mistakes. It was by reading your recent article that the Griffin Police Department discovered the information you were requesting was given to a former employee on a USB drive, not the more often used hard copy folder and disk. Once we were aware of that information, officials from the police department were able to locate the information requested amidst a myriad of items left in the former employee’s vacated office, which we now have available for your review. We sincerely apologize for this mistake.

Chiefs of GPD, both past and present, Griffin department directors, and I have always worked closely with you to provide you any and all information allowable to assist you with timely reporting. We have never hesitated to take or return your calls and emails promptly – evenings, weekends, and holidays included. Therefore, I am disappointed that you took an opportunity to disparage the City in a lengthy, prominent, and exaggerated article in your publication.

It will remain my belief as a public servant to the citizens of this community that the City has abided by the Open Records Act in regard to every request you have submitted and will continue to uphold the highest standards of a governmental entity – to ensure a free, open, and democratic society, to foster confidence in government, and to provide the efficient and proper functioning of its institutions and the expenditure of its public funds.

Sincerely,

Kenny

Kenny L. Smith

City Manager

The following is The GRIP’s response to City Manager Kenny Smith:

Dear Kenny,

 

Thank you for taking the time to write and offer your thoughts on the Georgia Open Records Act, recent Open Records requests I’ve submitted to the city of Griffin and my recent article detailing a portion of my experiences in attempting to obtain public records from the Griffin Police Department.

While you quoted a portion of OCGA 50-18-70(a), you stopped short of the crucial bit that completes that paragraph, which states, “The General Assembly further finds and declares that there is a strong presumption that public records should be made available for public inspection without delay. This article shall be broadly construed to allow the inspection of governmental records. The exceptions set forth in this article, together with any other exception located elsewhere in the Code, shall be interpreted narrowly to exclude only those portions of records addressed by such exception.”

It would be difficult, if not impossible, to perceive the portion you omitted as unimportant or irrelevant to the issue at hand.

Contrary to your claim that the city has “worked diligently in preparing every single request” I have made, I contend the city and Griffin Police Department Chief Yates have put forth great effort to obstruct the release of certain information, and have been, in some instances, noncompliant with the Open Records Act.

Rather than “explanations as to why the documents cannot be produced,” the Act specifies what information is mandated to be provided. As outlined in OCGA 50-18-71(d), “In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days or in the event the search and retrieval of records is delayed pursuant to this subsection or pursuant to subparagraph (b)(1)(A) of this Code section, then no later than three business days after the records have been retrieved.” (emphasis added

The city of Griffin’s response to my Open Records request of Feb. 3, 2017, contained multiple instances in which that mandated information was not provided, stating only that the requested information would be “provided with redactions.”

In response to my request for “all records pertaining to the hiring process including test information, evaluation information, referrals and/or recommendations and interviews,” the city stated, “Provided with redactions except for the confidential Personnel Evaluation Profile (PEP), for which public disclosure is not required due to federal statute or regulation requiring they be kept confidential, i.e. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Computerized Voice Stress Analysis (CVSA), the disclosure of which is prohibited except in narrowly defined instances (29 – U.S. Code §2008 – Disclosure of Information).

Because the city was noncompliant with the Act and did not disclose the Code section, paragraph and subparagraph of HIPAA upon which its exemption of information was based, it would be impossible for me to respond with any specificity. However, I will once again repeat the basis of my previously-stated argument against that exemption – HIPPA is nonapplicable to my request. According to United States Department of Health and Human Services, HIPPA “does not protect your employment records, even if the information in those records is health-related.” (emphasis added)

If you would like to independently verify my argument, you may do so at https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html.

The second disputed exemption is Tyler Cooper’s CVSA, which the city contends cannot be released due to federal law, specifically the Federal Employee Polygraph Protection Act – U.S. Code Title 29 Chapter 22. Cited in the city’s response was §2008, which states under what limited circumstances polygraph information may be released.

However, I resolutely maintain my oft-repeated position that the city cannot withhold the requested information under this law as it is nonapplicable in its entirety. In support my argument, I refer you to that same federal code section – U.S. Code Title 29 Chapter 22 §2006(a) – which plainly states, “This chapter shall not apply with respect to the United States Government, any State or local government, or any political subdivision of a State or local government.” (emphasis added)

Shall not apply – that’s quite straightforward and clear, and you may independently verify my argument by reading the federal code section at http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter22&edition=prelim.

For further clarification, the United States Department of Labor states, “The Employee Polygraph Protection Act (EPPA) is administered by the Wage and Hour Division (WHD). The EPPA applies to most private employers. The law does not cover federal, state, and local government agencies.” (emphasis added)

If you would like to independently verify this source of information, you may do so at https://www.dol.gov/compliance/guide/eppa.htm#who.

After much delay and discussion, Griffin Police Department Chief Mike Yates personally responded to my dispute and stated, “The PPA does exempt State, and local (sic) government entities from the act by allowing such polygraphs to be conducted by State and Local governments where the act prohibits other entities from utilizing such instrumentalities. It (the Act) does not exempt these entities from any privacy violations or other remedies should private or confidential information be improperly released or disclosed.”

While it may be convenient for Chief Yates to embrace the exemption from this federal law that allows the Griffin Police Department to administer these examinations while simultaneously attempting to skirt the Open Records Act by conversely claiming the GPD is bound by the law and unable to release the information requested, it is nonsensical to straddle that fence. His argument is obviously contrary to what the federal law plainly states.

This law either applies to local governments or it does not, and I have definitively established that the Employee Polygraph Protection Act itself states it does not apply. There is no middle ground on which Chief Yates and the city of Griffin can legally stand to continue playing both sides of that fence.

You were also mistaken when you stated, “Information provided to you, either erroneously or otherwise, in previous requests is not a basis for providing information for the February 3 request – only the law can dictate those parameters.”

The information the city of Griffin and Chief Yates are refusing to disclose – Tyler Cooper’s CVSA and PEP – were released to me after months of dispute regarding the refusal to disclose the identical information on Tyler Cooper. Is the city of Griffin now acknowledging it violated two federal laws on multiple occasions by releasing those records on Matthew Boynton and Josh Howell?

If so, I do not support that position. As you said – only the law can dictate those parameters – and the Act is clear. As stated in OCGA 50-18-72(a) Public disclosure shall not be required for records that are: (7) Records consisting of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee.” (emphasis added)

The Open Records Act is clear – the release of this information is not required, but is certainly not prohibited as Chief Yates has erroneously claimed.

My position on this point is further upheld by “Georgia Law Enforcement and the Open Records Act – A Law Enforcement Officer’s Guide to Open Records in Georgia,” a booklet prepared by Gary Theisen, of the Georgia Bureau of Investigation and Hollie Manheimer, of the Georgia First Amendment Foundation, and approved by the Georgia Association of Chiefs of Police, the Georgia Bureau of Investigation, the Georgia Department of Law, the Georgia First Amendment Foundation, the Georgia Press Association, the Georgia Public Safety Training Center – Georgia Police Academy Division, the Georgia Sheriff’s Association, the Georgia Department of Public Safety and the Prosecuting Attorney’s Council of Georgia.

Under Appendix 7. Information Exempt from Public Disclosure, on page 31, regarding “evaluation or examinations in connection with new appointment or hires (where confidential)” as cited in OCGA 50-18-72(a)(7), this publication states the release of such information is “discretionary.”

The Griffin Police Department and the city of Griffin have, on multiple occasions prior to my Feb. 3, 2017, request, established a precedent by releasing the Personnel Evaluation Profile and Computerized Voice Stress Analysis on more than one applicant and subsequent employee of the GPD.

Following months of repeated refusals to release the same information pursuant to my Feb. 3, 2017, request, the Griffin Police Department and the city of Griffin released to me the Personnel Evaluation Profile and Computerized Voice Stress Analysis on two individuals either previously or currently employed by the GPD.

It is not without notice that the information repeatedly released pertained to officers hired by a previous GPD administration, while the information being withheld relates to an officer hired by the current chief.

Contrary to your allegation, I have never claimed the city of Griffin “should not charge” me for the time expended to answer my request. I do not have a history of disputing or refusing to pay the city’s assessed fees for Open Records requests. My dispute in this case is specifically against the $40 charge for Yates’ time, as I contend the city’s assessment of that charge is improper and represents noncompliance with the Georgia Open Records Act.

According to Griffin Assistant Open Records Clerk Teresa Watson, “In this case, Chief Yates is the only one familiar with the Polygraph Protection Act, the scope of all active and ongoing investigations, and the potential for identification of a confidential source, each of which is exempt under the ORA.”

I have clearly established that HIPPA and the Polygraph Protection Act are nonapplicable to my request, and pursuant to a subsequent Open Records request for the case numbers of all internal investigations that involve or pertain to Tyler Cooper, I was told none exists.

Furthermore, Chief Yates’ has stated, “Given these facts and circumstances it was more efficient for me to review and redact the files than it would have been for the City (sic) to have elicited the assistance of Ms. Diane Martin, City Staff Attorney Jessica Whatley O’Connor and/or others to review and segregate the files.”

That statement contradicts the actual actions taken by the city of Griffin, as I was assessed a fee for Diane Martin’s expended time in addition to Yates’.

I appreciate your apology regarding the city’s responses to two Open Records requests for the GBI investigative case file on Josh Howell. It is unfortunate that due diligence was not put forth to produce that record when requested, but I am thankful it is now being made available.

During the more than 11 years I have worked in local media outlets, I have appreciated the positive working relationships developed with city and other officials. I strive to report factual and pertinent information, and agree that this goal is facilitated by maintaining open lines of communication. That is precisely why this situation has left me disappointed.

It is regrettable that such strides have been taken to prevent the release of information that is releasable under the Open Records Act. It is also quite unfortunate that condescension has been the position assumed by some city officials.

I do take seriously concerns about my work, but rather than a generalized complaint, if you will, please provide me with specific examples of what you have referred to as exaggerations in the article in question, I am most willing to review my work and promptly address your concerns. For ease of comparison, you may refer to the emails from which this article was derived. Teresa Watson included you, along with City Staff Attorney Jessica O’Connor and several others, in those electronic communications, so you have had ongoing and complete access to all the information I have cited. Please let me know which details of my reporting you dispute and I will immediately review my records, as well.

Thank you,

Sheila A. Mathews

The following is the latest development in the working relationship between GPD Chief Mike Yates and The GRIP:

Publisher’s note:

On Tuesday, June 20, The GRIP phoned Griffin Police Department Public Information Officer Lt. Mike Natale. The call was unanswered, but Natale did respond with a text message that stated, “All media has to go thru (sic) Chief Yates. You will have to call him. Thanks.”

For clarification, The GRIP then emailed GPD Chief Yates.

“Chief Yates, Good evening. For clarification, I’m writing to verify that Lt. Mike Natale is no longer serving as the Griffin Police Department public information officer, and that from this point forward, you personally will be handling all those responsibilities.”

In response, Yates stated, “Lt. Natale is still the PIO and his duties have not changed, generally. He has been instructed to refer you to my office should you have questions, require an interview, etc. This decision has been made to avoid any miscommunications with you on our part and/or subsequent misrepresentations of our communications on your part.

Communication with my office will either be in writing or recorded by audio or video means so as to insure (sic) that what is relayed to you is accurately relayed by you in your media endeavors. I trust you agree that accuracy is important…”

The GRIP always encourages readers to fact check its reports, and now that city officials are calling into question its credibility, that is of even greater importance. In the interest of transparency, The GRIP strongly encourages readers to obtain the pertinent public records upon which the article in question was based and determine credibility for themselves. That may be quite easily accomplished by submitting an Open Records request for all information pertaining to Sheila Mathew’s Feb. 3, 2017, Open Records request on Tyler Cooper. Because Mathews has already been assessed charges for the readying of this information, subsequent requests for duplicate information should incur extremely minimal costs, if any, as the majority can be electronically released via email. Anyone wishing to fact check the June 6 article in question may submit an Open Records request to records@cityofgriffin.com.

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Comments

  1. An old adage, that needs to be updated, comes to mind. “Never argue with someone who buys ink by the barrel.” – Congressman Charles Brownson – often attributed to, but not orginated by, Mark Twain. Or, as my hubby would say, “You better back up. That dog bites.”

  2. Larry Stanford says:

    Seems to me, instead of criticizing Ms. Matthews for doing her job correctly, the City Manager should be thanking her. He states in his letter that: “It was by reading your recent article that the Griffin Police Department discovered the information you were requesting was given to a former employee on a USB drive, not the more often used hard copy folder and disk.” In other words, if she had not posted the article, the police would still have no idea where that information was. Maybe a course in better record keeping, along with a course in the Open Records Act, should be required of both the Police Chief and City Manager.

Trackbacks

  1. […] A letter to the editor penned by Griffin City Manager Kenny Smith – which was also emailed to all seven sitting city commissioners – as well as The GRIP’s response and further actions taken against Sheila Mathews can be read here: https://the-grip.net/2017/06/29/city-manager-responds-to-open-records-stand-off/ […]

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