Whipped Cream Difficulties

There’s an interesting article in today’s NYT about Jenna Garland, the former press secretary for Atlanta mayor Kasim Reed.

Ms. Garland is currently under indictment. She’s charged with two misdemeanors. But, unlike the usual run of tax-fattened hyenas, the charges against Ms. Garland involve…

…violations of the Georgia open records law.

One of the charges against Ms. Garland accuses her of attempting to frustrate a reporter’s 2017 request for billing documents from the city water department by telling a subordinate, in text messages, to “drag this out as long as possible” and “provide information in the most confusing format available.”

…

In one text message that later came to light, Ms. Garland advised a water department spokesperson to be “as unhelpful as possible.” In another, she told the spokesperson to “hold all” requested documents pertaining to certain members of the City Council until the reporter “asks for an update.”

There are two interesting things about this.

1. Criminal charges against public officials for open records act violations are “extremely uncommon”, as the paper of record describes it.

Open-records or “sunshine” laws in a number of other states include no criminal sanctions for noncompliance, although a number of them call for civil penalties or the payment of attorneys’ fees and court costs if a news organization or a member of the public successfully sues a government agency for documents.
In Colorado, lawmakers removed criminal penalties for violating the state’s open-records law two years ago because almost no one was ever charged.

2. “The case is perhaps the most notable fallout from an epic, extended public battle between Mr. Reed, a forceful personality and one of the most important African-American politicians in the South, and two titans of the Atlanta media scene: The Atlanta Journal-Constitution and WSB-TV, the local ABC affiliate. The paper and TV station are owned by the same parent company and often team up for coverage.”

And something that’s feeding into this: even though Kasim Reed left office last year, his administration is still under federal investigation.

Federal agents have been scrutinizing construction contracts issued during Mr. Reed’s tenure, the use of city-issued credit cards, and concessions at the city’s international airport, among other matters. The federal investigation has resulted in numerous indictments.

It kind of sounds like the charges against Ms. Garland are more fallout from the ongoing investigation of Mr. Reed. I’d be tempted to suggest that they’re trying to flip her: but that seems unlikely with misdemeanor charges.

Scott R. Grubman, an Atlanta-based lawyer experienced in white-collar crime matters who is not involved in the Garland case, read Ms. Garland’s text messages the same way. He said he thought the government’s case against her was “flimsy” and an overreaction, given that civil penalties could be levied instead.
In Georgia, both state agencies and local governments “regularly engage in delay tactics” in response to open-records requests, Mr. Grubman said in an email. “By bringing a criminal prosecution against Ms. Garland without having ever criminally prosecuted any other violation in the past, the A.G.’s office appears to be unfairly targeting Ms. Garland and opening up a can of worms that will be difficult to close.”

I actually kind of agree with Mr. Grubman’s position, at least in part. This does seem like selective prosecution. But: I only agree with him in part because I think more public officials should face criminal charges for open records act violations. The heck with “civil penalties”, which are probably going to be paid by the taxpayers anyway: let’s hold these people personally responsible for violating the law. And if that means some of them wind up in jail…fiat justitia ruat caelum.