NEWS MEDIA UPDATE · GEORGIA · Freedom of Information · July 11, 2006
Grand-jury secrecy not enough to close county meeting
July 11, 2006 · Neither attorney-client privilege nor the secrecy of grand jury proceedings can prevent a newspaper from gaining access to documents related to a closed-door discussion among elected government officials about their alleged wrongdoing, the Georgia Supreme Court ruled last week.
The Post-Searchlight of Bainbridge, Ga., sued under the state’s Open Records and Open Meetings acts, arguing that the Decatur County commissioners had wrongfully closed a meeting in which they discussed a grand jury investigation into potential wrongdoing by the body and had improperly denied the newspaper access to documents related to that discussion.
In a 5-2 decision issued July 6, the state high court ruled that exemptions to the law for attorney-client privilege between a government body and its lawyer can be used only to discuss pending litigation.
“Unless given a limiting construction, an exception to the requirement that an open meeting be conducted would be converted into an expansive rationale for an agency to hold a closed meeting,” Justice George H. Carley wrote for the majority.
He cited a past state high court decision listing factors for determining whether litigation is imminent, including previous litigation between the parties or proof of ongoing litigation with similar claims or proof that a party has retained an attorney and indicated intent to sue. Finding none of these factors, the court found no sign of pending litigation, and thus no privilege.
The decision also determined that a law protecting the secrecy of grand jury proceedings does not apply when the proceedings are shared with a government body.
“The Newspaper did not seek access to secret grand jury communications,” Carley wrote. “It sought access to documents which had been submitted to public officials for the purpose of allowing them the opportunity to discuss and respond to assertions of impropriety in matters of the public trust. The Commissioners cannot evade the obligation to conduct an open meeting by relying upon a veil of secrecy which the grand jury itself disregarded.”
The case stemmed from a civil investigation conducted by a Decatur County grand jury into actions by county commissioners, particularly with regard to vacation and overtime policies involving the former county administrator. The commissioners met in executive session with their attorney to discuss the proceedings, citing an unspecified exemption to the Open Meetings Act in closing the session. The closed meeting produced documents related to the discussion. After the newspaper repeatedly requested the documents and was denied access, it sued in July 2005. A trial court ruled for the newspaper and awarded it attorney fees.
The Georgia Supreme Court ruled that because the grand jury proceedings had been made public in the interim, the case would have been moot had it not been for the award of attorney fees to the newspaper. The high court affirmed the fees award.
David A. Kendrick, attorney for The Post-Searchlight, said the ruling notifies Decatur County that the open meetings and open records laws will be enforced.
“They were clearly not concealing anything that was related to pending litigation,” Kendrick said. “It was a political process that they were involved in.”
Justice Harold D. Melton wrote a dissenting opinion, comparing the information gathering of the grand jury proceeding with the discovery process in a private lawsuit to argue that the threat of litigation was realistic or tangible — and therefore subject to the attorney-client privilege exemption.
“In creating the general provisions of the Acts, the General Assembly recognized the desirability of an open government and informed public; however, the General Assembly also provided that the rights extended to citizens under the Acts could not be absolute,” Justice Melton wrote. “To the contrary, when these rights conflict with longstanding principles of law mandating nondisclosure such as attorney-client privilege and the sanctity of grand jury proceedings, they must abate.”
(Decatur County v. Bainbridge Post Searchlight, Inc., David Kendrick, Kirbo, Kendrick & Bell, Bainbridge, Ga.) — PS