University System of Georgia’s delay on public records request was justified, judge rules

Editor’s note: This story was updated on 10/2/2014 at 3:30 p.m., to include comments from David Schick, the plaintiff in the suit.

GEORGIA — The Board of Regents of the University System of Georgia’s actions were “substantially justified” when it failed to provide a student journalist a timeline indicating when his public records request would be fulfilled and for delaying the delivery of the records, a county court ruled last week.

However, Fulton County Superior Court Judge Robert McBurney did fine the university system $1,000 because the board did not provide specific exemptions under the state’s open records law when it declined to produce some of the requested documents

David Schick, a former editor-in-chief at The Collegian, the student newspaper at Georgia Perimeter College, filed the suit in June 2013, asking the court to enforce his right to access public records under Georgia’s open records law. Schick also asked for processing fees of the records request to be waived and attorney fees. Daniel Levitas, of Clements-Sweet in Atlanta, represented Schick pro bono as part of the Student Press Law Center’s Attorney Referral Network.

Schick said he plans to appeal the ruling, and he and his attorney are currently “exploring all the nuances of the judge’s ruling.”

Schick said nobody offered a “cohesive explanation” during the trial “as to where the documents were found, how they ended up there and why they weren’t turned over prior to the lawsuit.”

Frank LoMonte, executive director of the Student Press Law Center, said the $1,000 fine will reinforce the idea that a public agency has to “spell out with specificity what exemptions you’re relying on when you withhold records.” However, he said the “substantial justification” issue would “certainly be grounds for an appeal” if Schick wants to pursue it.

Representatives for the Board of Regents University System of Georgia did not respond to requests for comment.

On July 16, 2012, Schick requested all records that related to the firing of 282 college employees from Georgia Perimeter College. At the time, the college was experiencing significant financial and managerial problems and faced a $25 million budget shortfall. Through his requests, Schick said he hoped to determine how college officials decided to terminate faculty members.

On July 18 he filed a follow-up request with the Board of Regents, requesting communications between 20 board members and employees regarding and requested documents from specific meetings.

Georgia’s open records law requires state agencies to provide documents within three business days after the request. If that is not possible, the government agency must provide a timeline for when the requester can expect the records.

The estimate processing cost for the first request was $927.99. The estimate for the second request was $2,500 but was increased to more than $2,500 when the time to sort and redact any protected information was factored in.

In the initial response to Schick’s first request, Reddick did not include a timeline for when Schick would receive the documents. The Collegian had an unpaid bill from a prior request, and the judge ruled that the college could not provide a timeline until the bill and the estimated processing fee for the current request were paid.

On Oct. 24, 2012, the cost of the second request was negotiated down to $291.72. Under the state open records law, when estimated processing costs exceed $500, the requester must pay in advance. Because the estimated cost was below that, the board started retrieving documents.

The ruling said that the Board thought they had fulfilled the whole request when Schick said there were missing documents. The Board realized after the suit was filed that more than 700 documents hadn’t been delivered, and the Board sent Schick the files when they realized their omission, the ruling said.

According to the ruling, there was no evidence that the delayed pages “were singled out for delay or intentionally withheld.” Because the 713 delayed documents from the Board of Regents were out of a total of 12,195 pages provided, McBurney ruled that did not warrant the award of attorney fees to Schick.

Schick requested records that the university would not release because they said the records were part of ongoing investigations. The judge ruled that the investigations were likely closed by now, and all nonexempt records should be provided to Schick.

LoMonte said the ruling could open the door to future concealment of public records.

“To be substantially justified you should be able to explain what happened,” he said. “The law requires a little more justification than ‘oops, we messed up.”

SPLC staff writer Anna Schiffbauer can be reached by email or at (703) 807-1904 ext. 127.