amicus curiae brief of viola davis, founder of a dekalb county taxpayer advocacy organization, in...

8/13/2019 AMICUS CURIAE BRIEF OF VIOLA DAVIS, FOUNDER OF A DEKALB COUNTY TAXPAYER ADVOCACY ORGANIZATION, IN SUPPORT OF SABRINA SMITH

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IN THE SUPERIOR COURT OF GWlNNETT COUNTYSTATE OF GEORGIA

v.

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CIVILACTION FILENO.:SABRINASMITH,

Plaintiff,

12A-09712-4GWINNETI CHAMBER OFCOMMERCE, INC., et al.,

Defendants.

AMICUS CURIAE BRIEFOF VIOLA DAVIS, FOUNDER OF A DEKALB COUNTY TAXPAYER ADVOCACY

ORGANIZATION, IN SUPPORT OF SABRINA SMITHCOMES NOW, Amicus Curiae named above, who hereby makes and files

this Brief in Support of Sabrina Smith's Complaint for Enforcement andApplicability pursuant to O.C.G.A. 50-18-73, and for such shows asfollows:

INTEREST OF AMICUS CURIAEViola Davis, the founder of a Dekalb County taxpayer advocacy organization,

has been a long-time government watchdog and was a plaintiff in the Brown vs. Boardof Education lawsuit filed by the late Charles Scott Sr. Ms. Davis is a taxpayer andeducation advocate who regularly files open records requests with government entitiesto analyze how taxpayer dollars are spent and disseminates the results to the public.Ms. Davis reviewed documents that show Dekalb County gave 10,000.00 toPartnership Gwinnett. Ms. Davis is interested in supporting public access to records toshow what economic development activities the Gwinnett Chamber of Commerce


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conducted on behalf of Gwinnett County. Ms. Davis believes the Open Records Act iscritical to Georgia citizens' ability to be informed about their local government and it is

with this in mind that Viola Davis strongly supports Ms. Smith in her effort to securefull compliance with the Act's mandates, including a determination that the GwinnettChamber of Commerce is declared subject to such Act.

INTRODUCTIONAmicus curiae named above respectfully submits this brief to address the

issue of whether Plaintiff, Sabrina Smith, has been wrongfully denied access topublic records as a result of Gwinnett Chamber of Commerce S contention that it isa private entity not subject to the Georgia Open Records Act (herein Act ) (despitereceiving nearly 3.5 million dollars in public funding over the last five years, aswell as carrying out economic development on behalf of Gwinnett County and itsSchool District).

On February 28, 2012, Sabrina Smith (Plaintiff ) delivered a requestpursuant to provisions of the Georgia Open Records Act (the Act ) to theGwinnett Chamber of Commerce ( Defendant Chamber ). Plaintiff requesteddocuments that identified the public entities which provided funding in 2010,along with the amount of funding provided. Her request was based on DefendantChamber's 2010 Form 990, which indicated that 35 percent of its funding camefrom government grants. Additionally, Ms. Smith contends that the


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Defendant Chamber is subject to the Act by the virtue of said Defendantperforming significant functions for both Gwinnett County and Gwinnett

County School District, namely, economic development. DefendantChamber responded on March 1, 2012, citing that it is a non-profit organizationthat does not receive more than 33 1/3 percent of funds from direct allocation oftax funds and is therefore not subject to the Act (while not addressing the issue ofbeing subject to the Act by way of performing economic development for thosegovernmental entities).

On October 10,2012, Plaintiff renewed her demand for inspection of publicrecords. Defendant Chamber has continued to restate its original position asreasoning for its non-disclosure in the letters dated October 11,2012, and October16, 2012. MOST RECENTLY (September 23, 2013), PLAINTIFF HASREQUESTED ADDITIONAL RECORDS FROM DEFENDANT CHAMBER,

AND HAS BEEN MET WITH THE SAME OBSTRUCTION, HURDLES, ANDREFUSAL TO COMPLY WITH THE ACT. Amicus curiae believes that under abroad reading of the Open Records Act, Defendant Chamber is an agency ofGwinnett County and Gwinnett County School District, and has intentionally andknowingly refused to honor lawful requests, wrongfully denying Plaintiff accessto public records.

Such refusal and non-compliance is a clear and present threat to open


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government and trust in the same. Amicus curiae strongly urge this Court todeclare Defendant Chamber subject to the Act, and ensure that Defendant

Chamber complies to every request thereunder.ARGUMENT

I. The Open Records Act Is Broadly Construed In Favor Of OpennessThe Georgia General Assembly clearly expressed its purpose in enacting the

Open Records Act:

The General Assembly finds and declares that the strong public policyof this state is in favor of open government; that open government isessential to a free, open, and democratic society; and that public accessto public records should be encouraged to foster confidence ingovernment and so that the public can evaluate the expenditure ofpublic funds and the efficient and proper functioning of its institutions.O.C.G.A. 50-18-70(a). The General Assembly further established f strong

presumption that public records should be made available for public inspectionwithout delay. Id.

To effectuate the explicit purpose of the Act, and to ensure that localgovernment is held accountable to the Act, the General Assembly left no doubt as tohow the Act should be interpreted by courts: This article shall be broadly construedto allow the inspection of governmental records. The exceptions set forth in thisarticle, together with any other exception located elsewhere in the Code, shall beinterpreted narrowly to exclude only those portions of records addressed by suchexception. [d. (emphasis added).


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The Georgia Court of Appeals, echoing this clear legislative directive,concluded that [t]he Open Records Act was enacted in the public interest to protect

the public from 'closed door' politics and the potential abuse of individuals andmisuse of power such policies entail, and therefore must be broadly construed toeffect its remedial and protective purpose. Central Atlanta Progress v. Baker, 278Ga.App. 733, 734-735 2006 ; see also Griffin Indus., Inc. v. GeorgiaDept. of Agric.,313 Ga. App. 69 2011 (emphasizing that compliance with the Act is not

discretionary, but mandatory ); City ofAtlanta v. CoreyEntm t, Inc., 278 Ga. 474, 476(2004) (holding that any purported statutory exemption from disclosure under theOpen Records Act must be narrowly construed ).

In sum, because both public policy and the strong language of the OpenRecords Act reveal an indisputable presumption in favor of openness, the disclosurerequirements of the Act are broadly construed and any purported exemptions to thosedisclosure requirements are to be narrowly construed.II. Because Gwinnett County Chamber of Commerce is an Agency of Gwinnett

County, the Records Requested by Plaintiff are 'Records Subject toDisclosure Under the Open Records ActThe first question in an Open Records Act suit is whether the documents are

public records as defined in OCGA 50-18-70(a). United HealthCare of Georgia,Inc.v. Georgia Dept. of Cmty. Health, 293 Ga. App. 84,87 2008 . If answered in theaffirmative, the second question iswhether those records are exempt from disclosure

under OCGA 50-18-72or some other statute. Id. Because the first question is the


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dispositive question in this case, we address it in detail before addressing the secondquestion in brief.

The Open Records Act defines public record as all documents, papers,letters, maps, books, tapes, photographs, computer based or generated information,data, data fields, or similar material prepared and maintained or received by anagency or by a private person or entity in the performance of a service or functionfor or on behalf of an agency. O.C.G.A. 50-18-70(b)(2). In defining agency,

the Act incorporates the definition of agency found in the Open Meetings Act, whichincludes:

(A) Every state department, agency, board, bureau, office, commission, publiccorporation, and authority;(B) Every county, municipal corporation, school district, or other politicalsubdivision of this state; [and](C) Every department, agency, board, bureau, office, commission, authority,or similar body of each such county, municipal corporation, or other politicalsubdivision of the state.

See O.C.G.A. 50-18-70(b)(I)(incorporating by reference O.C.G.A. 50- 14-1).The Open Records Act further stipulates that the definition of agency shalladditionally include any association, corporation, or other similar organization thathas a membership or ownership body composed primarily of counties, municipalcorporations, or school districts of this state, their officers, or any combination thereof


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and derives more than 33 1/3 percent of its general operating budget from paymentsfrom such political subdivisions. O.C.G.A. 50-18-70(b 1 .

Significantly, the Open Records Act requires the disclosure of documentspossessed by a private entity performing a service or function for or on behalf of apublic agency. UnitedHealthCare,293 Ga. App. at 87 (emphasis in original).

Indeed, the Georgia Court ofAppeals has repeatedly required such disclosures.For example, the court held that United HealthCare of Georgia, a private insurer, was

subject to the Open Records Act where the records in question related to theexpenditure of substantial public funds and involved the participation of publicofficials. ld at 88. The court also found it persuasive that United HealthCare was avehicle or management tool through which a public agency (the Department ofCommunity Health) carried out a public function. ld In fact, it is settled law that the

delegation of a public function to a private, nonprofit organization places thatorganization squarely in the purview of the Open Records Act. See Nw. GeorgiaHealth Sys., Inc. v. Times-Journal, Inc., 218 Ga.App. 336 (1995) (holding that theplaintiff nonprofit hospital was subject to the Act because it was a vehicle throughwhich the public hospital authorities carried out their official responsibilities );Jersawitz v. Fortson, 213 Ga.App. 796 (1994) (holding that Olympic Task ForceSelection Committee was a vehicle for the Atlanta Housing Authority and thereforesubject to the Open Meetings Act ; Hackworth v. Bd. O f Ed. e tc., 2 4 G a. App. 19 94(holding that the personnel records of a private transportation com pan y w ere su bje ct


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to disclosure because the company was the management tool through which theschool board carried out its public function of transporting students).

Moreover, the Court of Appeals has held that an organization may still besubject to the provisions of the Act, even if the organization does not receive thestatutory threshold of tax dollars. Nw Georgia Health Sys., 218 Ga App 336, 339(rejecting the argument that only those private, nonprofit corporations which meetthat tax-support test are subject to the Open Records Act).

Here, the Gwinnett County Chamber of Commerce contends, contrary toestablished law, that it is not subject to the Open Records Act because it is anindependent, non-profit, member-funded organization. In fact, the Chamber'smembership is comprised of Gwinnett County, Gwinnett County Public Schools, andother public officials (http://web.gwinnettchamber .org/ Government-Offices).

Additionally, as indicated on 2010 Form 990, the Chamber receives 35 percentof its total operating expenses from government grants, a number that exceeds the 33113 percent statutory threshold for defining an agency. After Ms. Smith submittedthe first of several Open Records Act requests, the Chamber amended its tax return toreflect a lower percent of income from government grants.

Notwithstanding any accounting errors, the Chamber cannot escapecompliance with the Open Records Act merely by falling beneath the 33 1;3 percentthreshold. SeeNw. Georgia Health Sys., 218 Ga. App, at 339.Moreover, the Chamberof Commerce is within the reach of the Act by virtue of Partnership Gwinnett, which


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is used as a vehicle to carry out the Gwinnett County Board of Commissioners' andGwinnett County School District's economic development initiatives.' Partnership

Gwinnett advertises as a public/private economic and community developmentinitiative of the Chamber of Commerce. According to the Partnership Gwinnettwebsite, the program was spearheaded by the Gwinnett Chamber of Commerceand has brought key public ... players to the table to create ... quality localdevelopment. Similar to the nonprofit organizations in United HealthCare,[ersauritz and Hackworth, Partnership Gwinnett, and thus the Chamber ofCommerce, are vehicles and management tools through which the Board ofCommissioners carries out a public function. SeeUnitedHealthCare, 293 Ga.App. at89;]ersawitz, 213Ga.App. 796;Hackworth, 214Ga.App. at 18-19.

Regarding the second question, if the documents are public records it must bedetermined whether they are exempt from disclosure under the Open Records Act.The statute provides a range of records that are not subject to public disclosure. Whilethe exceptions set forth in the statute are plentiful, they shall be interpreted narrowlyto exclude only those portions of records addressed by such exception. O.C.G.A. 50-18-70(a).It shall be the duty of the agency having custody of the record to provide allother portions of arecord for public inspection. O.C.G.A. 50-18-72(b).

Despite previous requests to Defendant Gwinnett County School District regarding a writtenagreement concerning the economic development services being provided to Defendant byGwinnett Chamber of Commerce, which all responses declare d that no such document ex iste dmost recently, subject to.a subpoena se rve d upon Defendant Gwinnett County School District, i;appears that such an wntten agreement for such services does exist.


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The purpose of many of the exemptions created by the General Assembly is toprotect various types of confidential and medical information and prevent harm to

any pending investigation. The information requested by the Plaintiff does not fallinto any of the stated exemptions, as they are records of the use of public funding anddo not seemingly contain any sensitive material. If it is found that the records containconfidential information that portion of the record may be excluded upon disclosure.

CONCLUSION

The failure of Gwinnett Chamber of Commerce to disclose the documentsrequest by Sabrina Smith pursuant to O.C.GA. 50-18-73 (including additionalsubsequent requests) is an intentional and knowing refusal to honor a lawful requesthereby denying Ms. Smith (as well as other concerned citizens) timely anduncomplicated access to public records. For these reasons and those discussedabove, Amicus Curiae respectfully asks this Court to grant appropriate relief toSabrina Smith. ; f 1 ~Thisay of ... UR. ,2013.Respectfully submitted,

Viola Davis, Amicus Curiae909Rays RoadStone Mountain, Georgia 30083Taxpayer and Education AdvocatePhone: 770-256-0034


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ERTIFI TE OF SERVI E

This is to certify that I have this day served a true and correct copy of the of

Amicus Curiae Brief, via First Class mail, proper postage affixed to ensure delivery ofsame, to:Van Stephens, Esq.Attorney for Gwinnett County75 Langley DriveLawrenceville, GA 30046Tom Tate, Esq.Attorney for Gwinnett Chamber Partnership Gwinnett1960 Satellite Blvd., Ste. 4000Duluth, GA 30097Victoria Sweeny, Esq.Attorney for Gwinnett County School DistrictP.O. Drawer 1250Lawrenceville, GA 30046

This5~aYOf

~f ~Viola Davis, Amicus Curiae909 Rays RoadStone Mountain, Georgia 30083Taxpayer and Education AdvocatePhone: 770-256-0034

amicus curiae brief of viola davis, founder of a dekalb county taxpayer advocacy organization, in...

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