Two years ago, Georgia Attorney General Sam Olens was widely hailed when he fulfilled his campaign promise to strengthen the state’s open records law, ushering in its first major rewrite in more than a decade.
Well, the hailing has stopped for now: Olens’ fight for transparency simply doesn’t square with his office’s recent aggressive efforts to defend the Board of Regents of the University System of Georgia against an open records lawsuit filed by a college student.
Last week, Olens’ office filed a motion asking the judge in that case to order the student to remove from his blog several records that the Board of Regents had released to him. After inspiring a minor controversy in media-law circles, the motion was withdrawn on Tuesday—presumably because it was absurd, had no basis in law, and might as well have been written in crayon, given the quality and seriousness of the state’s arguments.
The AG’s office declined to comment to CJR, citing the ongoing litigation. But a spokesperson told a staff writer for the Student Press Law Center that Olens was unaware of the motion before this week, and that he ordered it withdrawn when he learned of it, adding, “it speaks for itself that we withdrew it as soon as we learned of it.” (Full disclosure: Susannah is a volunteer on the SPLC’s advisory committee, and Jonathan is a volunteer attorney for the SPLC.)
That’s good news. But it’s worrisome that anyone in the AG’s office thought the arguments made in the motion had any legal grounding in the first place, and a more complete explanation from Olens would be welcome. As Society of Professional Journalists president David Cuillier, who was one of several people to repost the records in question in a show of solidarity with the student, put it: “Did they know they were on legally shaky ground and just did it to intimidate a college student? Or were they just so inept they didn’t know the law?”
Oh, and speaking of that ongoing litigation: Though the motion was withdrawn, Olens is still fighting the student over access to records related to university finances in Georgia.
Inadvertent disclosure and the inapt motion
The case started when David Schick, then a student at Georgia Perimeter College, was named editor of the student newspaper amid a budget crisis at the school. Schick requested documents about the crisis under the Georgia Open Records Act. The Board of Regents gave him various responses and no documents, and at one point claimed that producing the documents would cost nearly $3,000. Schick turned to the Student Press Law Center, whose executive director, Frank LoMonte, negotiated down the price.
Soon after, Atlanta media lawyer Dan Levitas got involved, and the Board of Regents lowered its price yet again, ultimately requiring Schick’s paper to pay $291 for the records. But Schick was convinced the board hadn’t turned over everything—so he filed suit.
And lo and behold, the board found 713 pages of emails and other documents about the budget about finances and presidential searches at the state’s public colleges and universities that it had failed to release. State employees took the unusual step of printing and scanning the documents as JPEGs before releasing them, making the documents impossible to search easily. Schick responded by posting them on his blog to crowdsource the work of culling through the JPEGs.
Included in those documents were a handful of pages that identified people who had applied for a school president position but were not finalists. Under state law, the board could have legally withheld those pages. And so the takedown requests from the AG’s office began—first verbal requests to Schick, then a request for an oral bench order from the judge, culminating last week with the state’s motion “to protect the privacy” of certain people identified in the records.
The motion went on to argue that disclosure of the four pages at issue “could cause serious harm” to job candidates and the public generally, on the theory that disclosure might discourage the most qualified candidates from applying for positions out of fear that their identities would be revealed. The state’s inadvertent release of those pages, along with their publication by Schick, compromised the candidates’ privacy rights, making it “imperative that action be taken,” the motion stated, “to remedy the current situation and to prevent any future disclosure of the documents and their contents.”
The motion made quick work of the First Amendment:
None of the four pages … are in any way relevant to the issues [Schick] was investigating …
[Schick] cannot show how the [state’s] request that he remove these four pages from his blog will in any way infringe upon his First Amendment right to report and comment upon [Georgia Perimeter College], its budgetary shortfall and its layoff of 282 employees, or any other matter of “legitimate public inquiry” …