Georgia Attorney General Baker wins lawsuits opening records of the bids for a stock-car racing museum and 2009 Super Bowl

By Tom Bennett

Lilburn, Ga., April 17, 2006 – Thurbert Baker, Attorney General of Georgia, has won the first lawsuits of his eight-year-old Open Government Mediation program. Sports-minded Atlanta business leaders have lost another round to him in their quest to spend public money in secret and bring attractions to Atlanta. The bottom line is that, although it surely never was their intent, year by year these leaders are strengthening the Georgia Open Records Act.

In the suits Central Atlanta Progress, Inc. v. Baker et al and Metropolitan Atlanta Chamber of Commerce, Inc. v. Baker et al, a three-judge panel of the Georgia Court of Appeals upheld Fulton County Superior Court, and ruled in favor of the attorney general on April 11, 2006. The opinion was written by Presiding Judge Edward H. Johnson and concurred in by Judges M. Yvette Miller and John J. Ellington.

It marked the first time that any Georgia group or groups had provoked Attorney General Baker enough on the issue of open government for him to take them to court, and it ended in victory. Who will be next?

"I don’t have an answer for that, but we do have a number of cases working that could go to suit," said Stefan Ritter, senior assistant attorney general of Georgia. "We hope that in this clear decision of the Court of Appeals, a number of people who have refused to produce documents will see the need to back down and release them."

Atlanta never got a NASCAR Hall of Fame from the powerful racing organization based in Daytona Beach, nor the 2009 Super Bowl game from the National Football League, which is at 410 Park Avenue in New York and from there issues some very strong demands to cities desiring to host its big annual championship. These two rich sports organizations now have joined the Atlanta business leaders, becoming unwitting partners in adding real teeth to Georgia open records.

In addition to whether public money was used -- and it certainly was -- the twin lawsuits turned on whether or not when you "review" something, you have "received" it. Well, you have indeed, opined these judges. Now another ploy to get around the Open Records Act is ruled out in Georgia law.

"CAP argued that… public officials merely reviewed and returned documents to it. Therefore, the Open Records Act was not implicated," Judge Johnson wrote. "We disagree."

When you see a document with your eyes, then you’ve received it, the court has underscored.

"That’s right," Ritter said. "In this case, they (the business leaders) handed out the various bids for the review of public officials. The NASCAR and Super Bowl bids were not treated exactly the same way. NASCAR was handed out and reviewed, but didn’t get a lot of comment from public officials. The Super Bowl bid was prepared – large parts of it were prepared – by public officials themselves, so they more than reviewed it, they prepared it. If you send something to public officials for them to review it, and they review it and are not allowed to keep it, the private entity is subject to the act."

What about the use of public funds?

"The NASCAR bid… cost about $500,000 to prepare," Judge Johnson wrote. "Of that amount, $300,000 came directly from public entities." Mayor Shirley Franklin pledged tax allocation district proceeds, according to testimony cited by Judge Johnson in his opinion. Mayor Franklin, Gov. Sonny Perdue and other leaders served on an organizing board in Atlanta bidding for this shrine to stock-car racing, which wound up being awarded to Charlotte.

Arguing in the trial phase for openness in these two lawsuits were Ritter of the A.G.’s office and Tom Clyde and Peter Canfield of the Atlanta Journal-Constitution. On the other side were Douglas O. Scribner and Paul J. Kaplan of Atlanta’s Alston & Bird LLP. The latter two represented both alphabet-soup groups seeking sports attractions and with names abbreviated as CAP and MACOC.

To find a justification for just waving bids in front of public officials and then taking them back, purportedly keeping them secret, the Alston & Bird lawyers turned to 2004’s Mercer v. Farahany.

However, Judge Johnson wrote: "This case and the Mercer University case are so different factually that we find it unnecessary to consider whether CAP acted at the express request of a public office or agency. The Open Records Act must be broadly construed to effect its purposes. Given the significant involvement of public officials and resources in the matter, we will not give the Act the narrow interpretation that CAP seeks."

In another suit that went to the Court of Appeals, Atlanta lawyer Amanda Farahany was unable to free up campus crime records at private Mercer University in Macon. That issue now has moved to the legislative arena. A part of Georgia House Bill 1302 of 2006 is a statutory effort to open the Mercer crime reports. It is on Gov. Perdue’s desk

In stock-car races, many vehicles traveling too fast turn left for hours. Often those in the back can’t get ahead, no matter how hard they try. In NFL games, runners often appear to break into the clear, but then they are suddenly tackled by fast-moving linebackers. This is how Atlanta sports promoters likely are beginning to feel regarding their run-ins with A.G. Baker and the Open Records Act. In June 1999, with a letter ruling and not a court case, Baker opened the records of a group called the Georgia Amateur Athletic Foundation, which managed the city’s successful bid for the 1996 Olympic Games.

HUNDREDS OF disputes in state and local government have quietly gone away after Kathryn Allen, who now has retired, and Stefan Ritter have used the machinery of the busy A.G.’s office to courteously write public officials and say some denial of records is unlawful. Now with his victory in court, Baker has proven the program has real teeth. He means business in having the mediation program.

"I think that’s true," Ritter said. "As you may know, our mediation program received no special funding. It’s in the section (of the Law Department) that I head, called Education, Elections and Government Services, and we have plenty of work to do. Mr. Baker has made a point of trying to resolve as much in the open government area as he can. I do this in addition to my other work. It’s too important to let it go. If we didn’t do this, citizens would have no recourse, they would not have anything to do to resolve a dispute except to go to court."

Did winning these cases give him personal satisfaction?

"Absolutely," Ritter replied. "We’d wanted to litigate a case like these for awhile. I will tell you that most of our cases are resolved when agencies see they’ve been told by the AG that what they’re doing is wrong."

Ritter, 45, has a Bachelor’s degree from Washington University of St. Louis and his JD from the Georgia State University School of Law. He was asked, did he form an interest in transparency and accountability in government while studying law?

"I’ve always been interested in transparency and accountability in government," Ritter said. "Obviously, democracies aren’t perfect. One way to improve them is to make it possible for the people who are paying for the governments to see the documents."

Tom Bennett of Lilburn is a GFAF volunteer.