City of Griffin reverses decision denying Open Records to The GRIP

SHEILA A. MATHEWS :::

The city of Griffin (CoG) has reversed its previous position of refusing to produce public records pursuant to Open Records requests submitted by The GRIP.

The GRIP Publisher Sheila Mathews had been notified that responses to Open Records requests would not be forthcoming until $523.40 in alleged arrears for prior Open Records requests was paid in full.

According to Griffin Chief of Staff Jessica Whatley-O’Connor, “Therefore, pursuant to OCGA 50-18-71, as well as an opinion of the Attorney General’s office, we will not respond to any further requests until the amount has been paid in full. We will also proceed with a collection action for the costs owed to the City and our taxpayers.”
However, research conducted by The GRIP produced no legal opinion upholding the city’s refusal to release public records, and in fact, that position is contrary to the Open Records Act itself.

Due to the crucial role public records play in reporting, Mathews sought cooperation with this matter, offering to allow the Georgia Attorney General’s Office to mediate the issue if the city officials would agree to produce Open Records responses in the meantime, but Whatley-O’Connor declined.

An Open Records request to the CoG sought the Attorney General’s opinion cited by Whatley-O’Connor, but that request, along with numerous others, was ignored.

After an extended period of time, records are once again being produced and the CoG responded to the request for that legal opinion.

According to Teresa Watson, executive secretary to City Manager Kenny Smith, as well as a designated assistant Open Records officer, no responsive records existed.

“The opinion of Ms. Jennifer Colangelo referenced in your below email occurred during a verbal conversation with Ms. Jessica O’Connor via telephone. Therefore, no document exists and none is provided,” Watson wrote in the city’s official response.

An Open Records request seeking the legal opinion was submitted to the Georgia Attorney General’s Office.

Assistant Attorney General Jennifer Colangelo’s response contradicted the city’s position.

“I don’t know what the city is referring to when they say that our office has issued an opinion We have not issued any opinions on Open Records fees recently, nor would we normally issue an opinion directly to a local government,” Colangelo said.

This is not the first time the CoG has attempted to withhold production of public records.

In response to an April 11, 2018, Open Records request, 18 pages of documents were produced resulting in the assessment of a $1.80 fee.

While the Open Records Act (ORA) allows agencies to charge $0.10 per page for printed copies of records, these records were produced electronically by email. Based on that law, “In the case of electronic records, the agency may charge the actual cost of the media on which the records or data are produced.”

When asked to clarify the basis of this fee, Watson stated, “The charges are to print the pages so that we can scan them to send electronically, for which we incur a cost.”

She later elaborated, “The pages were provided and we scanned them. Our copiers, as I have explained before, charge per scan for emailing just as if it were a copy … thus, $.10 per copy.”

An Open Records request was submitted to review “any single document, contract or billing record that documents the costs incurred by the city of Griffin pertaining to copying and/or scanning documents.”

In response, Watson stated, “…please be advised there are no records responsive to your request…”

Mathews responded that because these records were produced electronically, the $0.10 per page fee is not permitted.

At that point, City Manager Kenny Smith became involved, writing in part, “The response was 18 pages at .10 per page. The $1.80 is due and payable. Future ORR will be held until the payment is received.”

When asked under what legal authority the CoG was denying Mathews access to information under the ORA, Smith claimed access was not being denied, later stating, “What I am saying now is that $1.80 is due for the previous request. It is my understanding that future request may be withheld pending payment of a previous request. I will confirm with legal tomorrow morning.”

The following day, Smith wrote, “The City Attorney has advised: Code Sec. 50-18-72(d): Whenever any person who has requested to inspect or copy a public record has not paid the cost for search, retrieval, redaction, or copying of such records when such charges have been lawfully incurred, an agency may require prepayment for compliance with all future requests for production of records from that person until the costs for the production of records have been paid or the dispute regarding payment resolved.”

Based on this expressed understanding of the Open Records Act, it is unclear why city officials soon after chose to deny all access to records based on the allegation of previous unpaid fees.

The assessment of that $1.80 fee was later the subject of a formal complaint for review by Colangelo, who heads the Attorney General’s division overseeing enforcement of the Open Records Act.

In response to that complaint, City Attorney Drew Whalen presented a different basis for the charge.

“In order to provide these records to Ms. Mathews in PDF format, as she requested, the city had to print a hardcopy, make the required redactions, where necessary, and then scan it into PDF. Our position is the law allows us to charge the cost of making the hardcopy, whether it produces the record in that format or not.”

However, The GRIP has obtained records indicating these same documents had already been produced to another requester prior to the submission of Mathews’ request – the redactions had already been made, and the documents saved as PDFs.

Furthermore, many of the pages produced were not subject to any redactions and had been originally saved in a digital format suitable for immediate dissemination.

This $1.80 fee is among the 11 totaling $523.40 for which the CoG is demanding payment.
Colangelo has not yet responded to that formal complaint.

Of the remaining 10 separate charges, eight are in excess of $25. Mathews contends those eight fees that combined total $491.20 are not owed due to the city’s noncompliance with the Open Records Act which states, “In any instance in which an agency shall seek costs in excess of $25.00 for responding to a request, the agency shall notify the requester within a reasonable amount of time not to exceed three business days and inform the requester of the estimate of the costs…”

The CoG failed to provide estimates pursuant to any of those eight requests, denying Mathews the legal right to approve the fees prior to production of the records as the Open Records Act requires.

Mathews also denies owing the final two fees – one for $9.90 and the second for $20.50.
In the case of the former, Watson has conceded the city does not have a request from Mathews seeking production of those records, yet payment for such is still being demanded.

“I do not find an original request from you, nor a formal response from the City for the 99 pages of documentation and I am unaware of the circumstances,” Watson wrote in part before citing two Post-It notes allegedly left behind by a former CoG employee as the basis of the city’s demand for this payment.

In reference to the latter, despite possessing a receipt on which Watson wrote, “Paid in full,” the city maintains that fee must be paid again.

In addition to the denial of access to public records, the CoG has also threatened to take legal action against Mathews to collect the $523.40 in fees.

However, that action is also contrary to the Open Records Act, which specifies collection actions may only be enforced, “when such charges have been lawfully estimated and agreed to pursuant to this article.”

This standoff remains far from resolved and The GRIP will continue to report developments as they arise.

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