Your Home Your story reservation The justices of the Supreme Court of Georgia appear skeptical about the Athens prosecutor’s claim of open records exemption. • Georgia Recorder

The justices of the Supreme Court of Georgia appear skeptical about the Athens prosecutor’s claim of open records exemption. • Georgia Recorder


The Georgian Supreme Court will rule on a claim in the coming months. Athens-Clarke District Attorney Gonzalez argues that top officials are exempt from the state’s open records laws.

Supreme Court justices heard arguments Tuesday highlighting the case that the court failed to address a constitutional provision last year by denying her request for a public complaint filed by local resident Jarrod Miller. Fulton County District Attorney Fani Willis has made similar immunity arguments regarding a public complaint related to the 2020 presidential election interference case against Donald Trump and his Republican allies.

In Gonzalez’s appeal, she alleges that despite the understaffed district attorney’s office, attorney Kevin Epps has consistently requested public records on Miller’s behalf since she took office in January 2021. Epps’ requests, including more than 50 over a three-month period in 2023, seek two years of communications on everything from her office’s business to staff training for University of Georgia football games and Zoom meetings.

Miller alleges that the Athens-Clarke District Attorney’s office failed to process some documents in a timely manner and claims Gonzalez directed an employee to delete text messages related to a request for outstanding documents. Miller maintains that the Georgia Supreme Court has never ruled that the Open Records Act does not apply to members or offices of the judiciary.

Gonzalez’s attorney, Derek Bauer, argued Tuesday that even the General Assembly cannot regulate public access to district attorney files and that only the state Supreme Court has that authority. Miller has no right to sue the district attorney because he failed to file the Open Records Act requests mentioned in the complaint, and thus cannot demonstrate what type of injury he suffered as a result of the DA’s failure to comply, Gonzalez said.

Bauer also said that prosecutors’ constitutional immunity also protects them from civil penalties if a private citizen files a lawsuit to enforce the Open Records Act.

Bauer said in court Tuesday that even if the Supreme Court justices disagree with those first two theories, there are still plenty of legal grounds that would prevent someone like Miller from enforcing public records requests made on his behalf by a lawyer have been submitted.

“We say no based on established principles of constitutional standing, and the Georgian rule that any action must be brought by the real party in interest and not by a proxy plaintiff,” Bauer said.

The judges peppered Gonzalez’s attorney with questions about the logical reasoning he used to argue that prosecutors are not subject to public records laws.

Presiding Judge Nels SD Peterson said that for nearly two centuries, Georgians have had the legal standing to petition the court to compel a government official to fulfill a duty. Peterson asked Bauer why he felt a Georgia resident has no legal authority to compel a government official, such as a district attorney, to provide them with requested documents.

“It seems to me that a lawsuit to compel the production of documents required to be produced under the Open Records Act is akin to a claim for mandamus,” Peterson said, referring to a petition to compel a government official to quit his job to do.

Bauer emphasized the importance of a genuine interested party making an open records request. A legally binding open records request should be filed by someone directly affected by the outcome, he argued.

“Before any legal duty can be imposed in the Public Records Act, there must be a request,” Bauer said. “And that requires that the request be made by the real interested party. No citizen can enforce that.”

Judge Sarah Hawkins Warren also questioned Bauer’s contention that a lawyer can file an open records request of his own accord, but that he is also legally required to disclose it to a state official if doing so on behalf of a client.

“The attorney could file the exact same thing the next day and ask for the exact same documents because he has permission to do so under the Open Records Act,” Warren said. “Why does that destroy the ability to do this through this vehicle?”

Bauer said it makes a huge difference if an official doesn’t have the right to ask an attorney who he represents in an open records case.

Bauer said if anyone were able to enforce someone else’s request, it would lead to a “race to the courthouse” to gain access to government data.

“I normally represent newsrooms, news outlets that continually use the Open Record Act as a news gathering tool. This court will say, “Hey, if Channel 2 issues issues and requests the Open Records Act for information about news gathering. If Channel 11 finds out, Channel 11 can rush to court to dismiss someone else’s request first.” force.”

Judge Andrew A. Pinson said this case is about enforcing a public right, which is different from a private rights case in which someone files a violation complaint and “then someone else says, ‘Hey, there was a violation.’ I want you to implement whatever judgment you make. ”

According to Bauer, a district attorney’s office cannot be sued for violating public records rights because of the separation of powers between the branches of state government. Although most public government agencies and offices must comply with public records laws, DAs are protected as constitutionally elected officials.

“The district attorneys have always been constitutional officers of this branch, not of the executive branch, even though they do not do judgmental business, such as deciding cases, but they do do a lot of judgmental business, such as advising grand juries,” Bauer said .

Chief Justice Michael P. Boggs said the court ruled that judicial power belongs solely to the court and not to a local prosecutor.

“How do we extrapolate from that that a prosecutor, under any circumstances, is exercising judicial powers,” Boggs said.

In recent years, Gonzalez and Willis have become targets of Republican lawmakers.

Republican lawmakers have created a new committee to oversee district attorneys that will have the power to fire prosecutors who refuse to prosecute certain crimes, are negligent or fail to fulfill their duties.

Gonzalez has come under scrutiny for her publicly stated policy of not prosecuting minor marijuana possession or abortion cases.

Willis has publicly condemned a Republican Party-led “witch hunt” against her while defending her decision to investigate Trump and several co-defendants for conspiring to overturn the 2020 presidential election in Georgia and other states.

The Fulton district attorney’s office has become embroiled in an open battle with the far-right America First Legal, which has filed a complaint against Willis for denying records related to communications with the Biden White House and the U.S. Department of Justice about the far-reaching investigation that led to extortion. charges against Trump and 18 co-defendants in Georgia in August.

Willis has sought to dismiss America First Legal’s complaint, arguing that the Fulton district attorney’s office cannot be sued. The open lawsuit filed against Willis on behalf of Bentley Media Group is pending in Fulton County Superior Court.

The America First Legal Foundation has filed an amicus, or “friend of the court,” brief in the Georgia Supreme Court in support of Miller’s case against the Athens-Clarke district attorney.

Miller’s filing argues that the Georgia Supreme Court has never explicitly ruled that all government officials and offices in the judiciary are exempt from the Open Records Act, and that district attorneys are only immune from lawsuits involving private rights related with their prosecutorial duties. Miller also said that as a community stakeholder, he has the right to enforce the public records law in Athens-Clarke.

“When (Gonzalez) finally gets around to this central question, she first deflects by noting that the public prosecutor itself is not an “agency,” according to the basic legal letter. ‘Of course not, that’s her office. The district attorney is the alleged custodian of the public records of her office.”