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 After inspiring a minor controversy in media-law circles, the motion was withdrawn on Tuesday—presumably because it was absurd, had no basis in law, and might as well have been written in crayon, given the quality and seriousness of the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writer for the Student Press Law Center that Olens was unaware of the motion before this week, and that he ordered it withdrawn when he learned of it, adding, “it speaks for itself that we withdrew it as soon as we learned of it.”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Oh, and speaking of that ongoing litigation: Though the motion was withdrawn, Olens is still fighting the student over access to records related to university finances in Georgia.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” …
Because these four pages are in no way relevant to [Schick’s] investigation, any First Amendment right he has relating to these documents is substantially outweighed by the First Amendment privacy rights of the individuals identified in the documents …
A state may enact … a reasonable prior restraint upon speech so long as the law is narrowly tailored to address an important governmental purpose. … [This] exemption is narrowly tailored to protect the privacy rights of candidates at the initial stages of the hiring process while requiring the institution to disclose the information of up to three finalists …
In closing, the motion asked the judge to inspect the four pages at issue, to designate them as exempt, to order Schick to remove them from his blog, and to include in his order a directive that neither Schick nor any of his agents “may publish, post, or otherwise publicly disclose any of the four pages that have been designated as exempt.”
Again, the AG’s office withdrew the motion Tuesday, but without explaining why. “It would be great if the AG’s office is withdrawing … because they realize it was legally unsupportable in the first place,” Schick said in an emailed statement. “However, if they are just withdrawing it because they now realize that—in the age of the Internet—it would be impossible to track down everyone who might already have republished this material, that is less encouraging.”
You can’t un-ring that bell
Giving credit where it’s due, we’re glad the motion died an early death. But it never should have taken its first breath. To begin, it simply misstated the relevant exemption under the Georgia Open Records Act. The law does not say as a general matter, as the motion argued, that certain records “shall be exempt from disclosure.” Rather, it says that “an agency shall not be required to release” certain records. The difference is significant because the actual language endows the Board of Regents with discretion.
Second, the motion failed to acknowledge that no First Amendment right is more secure than the right to publish free from government control. In the 1931 case Near v. Minnesota, the US Supreme Court ruled that speech may be prevented only in “exceptional cases” (e.g., to protect the troops in a time of war). In the 1971 Pentagon Papers case, the Court held that there is a “heavy presumption against” prior restraints, and Justice Potter Stewart, in what became the most important concurring opinion in that case, wrote that prior restraints are permitted only when speech “will surely result in direct, immediate, and irreparable damage to our Nation or its people.” Clearly, publishing the names of candidates for a Georgia college presidency would not satisfy those requirements.
Moreover, the 1978 case Smith v. Daily Mail Publishing Co and the 2001 case Bartnicki v. Vopper stand today for the principle that the press may not be held liable for publishing truthful information about matters of public concern (1) absent a government interest of the highest order, and (2) where the press didn’t unlawfully acquire the information. Here, Schick did not unlawfully acquire the records—the state admitted in its motion that it inadvertently gave them to him. And, again, the privacy of candidates for a Georgia college presidency is hardly a government interest of the highest order.
Also, it doesn’t matter whether the information contained in the supposedly exempt records is relevant to the issues Schick was investigating. That’s immaterial, and even though the motion referred multiple times to the importance of not releasing information that would violate privacy rights, that burden is not Schick’s. No less than the AG’s office said so, in its own motion: “The state should not produce any public records that would invade an individual’s privacy” (emphasis added). In other words, the state may or must refuse in certain circumstances to disclose records—but once the state discloses, inadvertently or not, it can’t un-ring that bell.
It’s true that many courts have found that protections from prior restraints don’t immunize a speaker from post-publication penalties, either criminal or civil. In the Pentagon Papers case, a few of the justices encouraged the government to charge the newspapers criminally after publication, and in the privacy context, it’s plausible an injured party could sue the Board of Regents or Schick on a traditional invasion of privacy claim, or some other civil claim. But a court would be extremely reluctant to issue a prior restraint order for the same injury. Decisions to publish or not publish are generally left to the discretion of speakers, publishers, news organizations, and so on.
Lawsuit goes forward
Back to that ongoing litigation: Schick, now a student at the University of Georgia, is still fighting with the AG’s office for access to Board of Regents documents. His suit, filed in June 2013, alleges that the University System of Georgia violated the state open records law by failing to provide certain records in the required time frame and by failing to cite exemptions when withholding records. At the time he filed the requests, he wanted to learn how and when the college made decisions to lay off faculty and what oversight had been like in the run-up to a budget crisis.
According to Levitas, the board claimed at trial it has additional documents that are exempt from disclosure because they are related to ongoing investigations. Records of pending law enforcement and regulatory investigations are exempt under the state law, and, “the University System of Georgia said, ‘We are a law enforcement agency,’” the attorney explained.
Levitas added he’s unsure why Olens has allowed his office to trample something he built a reputation on: open government in Georgia.
“This case highlights the unfortunate contradiction when state officials are accused of violating the Open Records Act,” he said. “There seems to be an obvious contradiction between Olens’ promises on the campaign and his duty to defend state agencies.”
Susannah Nesmith and Jonathan Peters are correspondents for CJR’s United States Project. Follow them on Twitter at @susannahnesmith and @jonathanwpeters.