Are Documents in City Ethics Probe Being Properly Opened to Public?
Dunwoody is using two legal standards to shield public documents in ongoing ethics probe.
An Atlanta-area lawyer associated with the Georgia First Amendment Foundation says Dunwoody could be applying the state's open records law unevenly in its ongoing ethics case.
The investigative findings, commissioned by former DeKalb District Attorney Bob Wilson, was publicized and widely released in May to the public through the city's website.
The report named Councilwoman Adrian Bonser and former City Attorney Brian Anderson as leakers of confidential city information gleaned in city executive sessions about "Project Renaissance" a redevelopment deal in Georgetown.
Since then, as the city's formal ethics process has moved forward, officials have turned off the spigot of public information related to the case. The ethics case now involves all council members, as Bonser has filed counter complaints.
The free-flow of ethics documents progressed normally in late May and early June. The city's acting attorney, Cecil McLendon, released a rather tame but required response to the City Council's complaint against Bonser.
Bonser's response to the complaint, due in mid-July, was not released. The City Clerk deemed that a state law that hadn't been invoked by the city before protects investigations and bars associated documents from the public.
McLendon's earlier response in the ethics case was later rescinded as a public document, despite the fact it had already been disseminated. City officials said it was released "inadvertently."
A new legal interpretation
The state law cited by Dunwoody officials says it exempts select documents from public review:
“Records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged."
That use of the law raised the eyebrow of Gerry Weber, a local civil rights attorney, who is a board member with the Georgia First Amendment Foundation.
Weber said as a practical matter, the exception to these type of open records typically has been used in police internal affairs matters. They also are used in separate employee investigations - not necessarily elected officials.
The rationale for this: Involved parties and witnesses are able to speak freely, which can allow for a thorough investigation.
Dunwoody's case appears to be different. Wilson's investigative report was completed by openly talking to people involved in the alleged confidential breach, with no expectation of privacy. The report, released in March, names people interviewed in great detail. Information about Bonser's health matters were even disclosed.
Bob Mullen, city spokesman, had this to say about the decision to stop releasing records related to the ethics review:
"There were several documents released related to the leak of confidential information from a City Council executive session. The first document was the investigation report by Bob Wilson of Wilson, Morton & Downs that the City ordered," he said. "That document was not a product of any investigation and therefore is not subject to the provisions of the ethics code as it related to open records."
Mullen did not address the state law that could exempt investigative documents from public disclosure, instead citing the city ethics code.
Weber said that council members are not necessarily shielded from public speech under the state law the city officials are now invoking.
"My understanding of the (exception) is that it creates a space for information (in an investigation) to flow more freely," Weber said. "And I'm not sure that exemption has been applied to council members, just (public) employees," he said.
A Double Standard?
Up to this point, the city has applied two different sets of legal standards in releasing and withholding documents. When Bonser's response was not released to the public (Bonser personally gave the response first to the Dunwoody Crier) the city applied the state's exception on investigations.
However, in releasing the initial Wilson investigative report, the city's action seems to run counter to that same state exemption, which says "records consisting of material obtained in investigations … against public officers" will be kept confidential until 10 days after the conclusion of the investigation.
Prior to Bonser's response not being released - the first such denial - the city applied its own ethics code in allowing the disclosure of sensitive investigative documents, such as the Wilson report.
From the city's ethics code:
"Upon receipt of such a complaint, and until an investigation of the complaint is concluded, all matters regarding the investigation, facts of the matter giving rise to the complaint and status of the investigation shall not be disclosed and shall be kept in confidence."
That code seems to suggest investigative matters are confidential. However, a critical point is that Wilson's report was released prior to the City Council filing a complaint against Bonser.
Therefore, nothing in that section would seem to preclude Wilson's report from being released, under the city's guidelines.
Weber says the city could have approached the situation differently. Since the Wilson report named Bonser and Anderson directly, couldn't city officials have used the same state exemption that would seem to keep all "investigative" material under wraps?
"The lack of even handedness is suspicious," Weber said. "Especially where there are two differing positions and are not otherwise equal. You would think the government would release both sides of the coin or not at all."