Georgia attorney general's office seeks judge's order to remove public documents

GEORGIA — Attorneys for the state of Georgia have asked a judge to order a student journalist to remove from his blog documents that the state gave him through a public records request.

The highly unusual request comes as the two parties await a ruling in a case where the Board of Regents of the University System of Georgia is accused of violating the state’s open records law.

Representing the regents, the attorney general’s office filed two motions Thursday concerning the documents, which were provided to and posted online by student journalist David Schick last August. In the motions, attorneys for the state argue that the university system “inadvertently disclosed” four pages that identify people who applied to be president at schools within the system. An exemption in Georgia’s open records act allows, but does not require, the system to withhold the names of presidential candidates except finalists.

“None of the individuals identified in these pages was a finalist for the position for which he/she applied,” Senior Assistant Attorney General Julia Anderson wrote in one of the motions. “Therefore, the documents should not have been disclosed.”

The accidental disclosure was discovered while the attorney general’s office was preparing for last month’s trial. The two motions each request Fulton County Superior Court Judge Robert McBurney order Schick to remove the documents from his blog. In one of the motions, the state moved to file under seal — meaning it will not become part of the court’s public record — the four pages in question, as well as a brief supporting its position.

The motions were filed after Schick declined several requests to remove the documents. The issue was raised at the opening of the trial, which was held last month. During the trial, the state’s attorneys requested the judge issue an order from the bench requiring Schick to remove the records, which he declined. McBurney told attorneys for the state to file a motion if they wished to pursue the matter, said Daniel Levitas, an attorney representing Schick.

Levitas challenged the request at the trial, he said.

“To ask Mr. Schick to remove the documents is fundamentally contrary to core principles of the First Amendment and press freedom, and I urged the court to take a more deliberative course of action and carefully study controlling case law before issuing a ruling from the bench,” he said.

After the trial, attorneys for the state renewed their request. In a letter to Levitas, the attorney general’s office volunteered to provide the non-exempt documents on a new CD that Schick could post upon removing the original documents. The letter gave Schick two options, either to repost the new documents without noting the change or to post the new documents with a disclaimer explaining that he had removed the original post at the regents’ request.

The state’s request has changed slightly over the past several weeks. Originally, Schick was told that of the 713 pages, 13 should not have been released. That number was revised to eight pages and then to four.

It’s not clear which four pages are at issue. Schick and Levitas declined to identify the pages while the government’s motion is pending. Representatives from the attorney general’s office and the university system could not be reached for comment.

A review of the records posted on Schick’s blog show at least 11 pages that appear to include the name of one person who was nominated for the University of Georgia’s presidency. At least four other pages of emails include discussions about people who could potentially fill an interim presidential vacancy at Macon State College (which is now Middle Georgia State College). At least five pages appear to be discussing candidates for one or more positions, although which position is unclear. Several of the pages include handwritten notes, either on the pages themselves or on attached Post-It notes, that say “search exemption.”

Emily Grannis, a legal fellow with the Reporters Committee for Freedom of the Press, said that “only under the most extreme circumstances” can the government order someone to stop and remove speech. While the regents could have lawfully withheld any records that identified candidates for presidential positions, they can’t retroactively retract records, she said.

“That’s not how public information laws work,” Grannis said. “If you release something to the public, you’ve made it public. Here, the government should have been a little bit more careful.”

Grannis said that in some states, publishing certain information about an individual, even if lawfully obtained,could create a civil cause of action. If those instances, Grannis said she could see the government going back to the requestor and pointing out the potential for concern.

“But that’s very different from saying, you have to take it down, and you have to say ‘I took it down because the government asked me to,” she said, adding that she has never heard of a similar request, which would constitute compelled speech.

Journalists negotiate with the government all the time about whether the release of either lawfully obtained or leaked documents would be harmful, Grannis said. But at the end of the day, “the journalist gets to decide.”

Schick said he never expected the attorney general’s office to pursue this request in court. When he learned the state had filed its motions Thursday, he “had a conniption,” Schick said.

“I couldn’t believe it,” he said. “This was something I got legitimately through an open records request, and to basically blame me for their screw-up is highly offensive. They’re the ones we’re paying our tax dollars to to apply the appropriate exemptions. If they don’t, then that’s on them. You can’t, in retrospect, go back and penalize the journalist for being a journalist.”

Both Schick and Grannis questioned the efficacy of the state’s decision to seek the removal of four relatively obscure pages posted on a relatively low-trafficked blog, especially when the documents have been posted online since August. Schick said on average, he gets between 100 and 200 visits to his blog per day.

The attorney general’s motions show how “opaque” the university’s system is, Schick said, which was his original charge in the lawsuit he filed last year. A ruling in the trial, which lasted two-and-a-half days in April, is expected soon, but will likely be delayed now.

In July, it will be two years since Schick made his first records request. Then a student at Georgia Perimeter College, Schick requested records concerning the college’s budget shortfall. He told the Student Press Law Center last year that he made the request because he wanted to learn more about how and when the college made its decision to layoff faculty.

After delays and difficulties getting the records — the university system originally estimated the cost of providing him records at nearly $3,000 — Schick obtained legal representation from Levitas, of Clements & Sweet, LLP of Atlanta, through the Student Press Law Center’s attorney referral network. He filed suit last June.

Now a student a the University of Georgia, Schick said he’s eager for the court to issue a ruling on the central issues he and his attorney raised at trial — whether the regents properly cited open records exemptions when withholding records and whether the delay in providing records violated the records law, which generally requires records be provided within three days.

Schick has 30 days to file a response to the motions and said he plans to fight them vigorously.

“I feel like we’re on really strong ground as far as standing up to it,” he said.

Contact Gregory by email or at (703) 807-1904 ext. 125.