A law firm with close ties to former Mayor Kasim Reed presented a defense to the GBI that current and former city officials of his administration did not break the law last year in response to public records requests from The Atlanta Journal-Constitution and Channel 2 Action News.
Holland & Knight delivered its legal defense to the GBI, which is investigating the city's compliance with open records laws, in a 24-page PowerPoint on March 22. The firm concluded its work for the city March 28, billing $57,000.
Earlier reporting from the AJC and Channel 2 raised questions about Holland & Knight's involvement because partner Robert Highsmith has represented Reed personally and politically, and because the city paid the firm $88,000 last year for advice on open records issues. The firm was hired for the open records case by City Attorney Jeremy Berry, whose actions responding to an open records request are under GBI investigation.
The firm argued that Berry, whose resignation Mayor Keisha Lance Bottoms accepted last week, did nothing wrong. It also contended there was no wrongdoing by former press secretary Jenna Garland, who had texted a Watershed official to delay providing records to a Channel 2 request for water billing records, and to present the information in the âmost confusing format available.â
The PowerPoint called the text exchanges âtongue in cheek.â
News organizations rely on Georgiaâs sunshine laws to hold government officials accountable and report how they spend taxpayer money. The water billing records being sought revealed that Reed, his brother Tracy and some City Council members, including Bottoms, were delinquent.
The records involving Berry pertained to Baker Donelson legal invoices showing how much taxpayers were spending for outside legal advice to respond to the federal bribery investigation at City Hall. An AJC investigation found Berry produced what he claimed to be legal invoices, but the documents weren't the actual legal invoices.
âThe city provided the records requested by the AJC with regard to the Baker Donelson billing records and there has been no violation of the Open Records Act, or any other law, or any attempt to deceive the public,â the presentation says. âThe city did not violate the Open Records Act when it produced certain water billing and usage records that were timely produced and were not required to be produced under the Open Records Act exemptions.â
Greg Lisby, a Georgia State University communication law professor, said Holland & Knight's PowerPoint takes "the broadest possible brush to basically exonerate the entire city of Atlanta."
âMy first question is: What was the city paying for?â Lisby said. âBecause if the city was paying for analysis, they didnât get an analysis. If the city was paying for a defense, they got a defense.â
It is unclear how much the city will rely on the PowerPoint since it has replaced Holland & Knight with two attorneys with strong records on government transparency, former attorneys general Thurbert Baker and Sam Olens with the Dentons law firm, to represent it in the GBI investigation and the mediation request filed by the AJC and Channel 2.
A city spokesman said Baker and Olens âwill continue to represent the City with the pending inquiries and (in) advising on new reforms the City may adopt to strengthen the Cityâs compliance with the Open Records Act.â
City Council President Felicia Moore said sheâs glad Holland & Knightâs work is over, so the city can âstop bleeding money.â
âIf we hired them to make determinations about what was right under the law, we could have waited for the GBI to make their determinations and it wouldnât have cost us anything,â Moore said.
Water billing records
In March, the AJC and Channel 2 obtained text messages from the personal cell phones of press secretary Garland and Lillian Govus, who worked as a communications officer in the city's Watershed Department.
Govus alerted Garland to a Channel 2 open records request for water billing records for Kasim and Tracy Reed. Days later, Channel 2 requested water bills for City Council members.
Garland instructed Govus through the messages to âbe as unhelpful as possibleâ and to âdrag this out as long as possibleâ when fulfilling the requests. Garland ended the exchange by telling Govus to âprovide the information in the most confusing format available.â
At another point, Garland instructed Govus to not release the records until the Channel 2 asks for an update. The city only turned over the records after Channel 2 hired an outside law firm and threatened to sue.
The Holland & Knight PowerPoint says the open records act exempts records that reveal a home address or utility account number â an assertion that Michael Caplan, the attorney handling the case for AJC and Channel 2, strongly disputes.
Caplan said that water bills are public records, and the city failed to cite this exemption after the request was made.
âAlthough we will not comment on the pending GBI investigation, we disagree with the Cityâs legal argument that the water billing records of Atlanta city officials are not public records subject to the Open Records Act,â Caplan said. âWater bills, like tax assessments, are public records. Moreover, these water bills did not include the names or other personally identifying information of any city officials.
âEven when public records include such private information, the City is still required to produce the records with the private information redacted.â
The PowerPoint, which misspelled Govusâ name twice, also says the law does not ârequire the production of records by any specific deadline when they are not immediately available,â and that the city was âoverwhelmedâ by records requests at the time.
âThere is no evidence that anyone altered or otherwise attempted to make the requested water billing records more confusing,â the report says. âRequested records were provided in a timely manner.â
Contrary to Garlandâs directive to make the records âconfusing,â the PowerPoint says that Garland suggested to Govus that the documents be changed to make them easier for the media to understand. A city spokesman says that assertion was made during Garlandâs interview with Holland & Knight attorneys.
Since the PowerPoint was produced on March 22, the AJC has reported on another incident in which Reedâs communication staff tried to compel a senior city official to delay production of public records through text messages sent to and from private cell phones.
Communications Director Anne Torres told Atlanta Beltline CEO Brian McGowan to ignore Beltline General Counsel Nina Hickson's advice to comply with an open records request for McGowan's contract, with Torres suggesting that he should talk to Reed "about how to deal with her."
âIf she wants to work for the media, then she should leave her position,â Torres said of Hickson in a Sept. 27 text to McGowan. âWe can hold whatever we want for as long as we want.â
Beltline officials resisted Torresâ pressure, which she later called âbanter,â and provided the records in compliance with the law.
Legal bills
In July of 2017, the AJC requested all invoices submitted by the law firm Baker Donelson for its work in relation to the federal corruption investigation at City Hall.
Months later, Berry produced 11 months of documents that he called invoices and that resembled authentic legal bills. The AJC published a story saying the firm had billed city taxpayers $1.4 million for the work.
But the AJC and Channel 2 reported in March that Atlanta officials hid legal billing records for the bribery investigation in the account of a different case and directed the creation of new documents resembling invoices to satisfy the AJCâs records request. Experts say the actions ranged from unethical to potentially criminal.
Berry defended his handling of the AJCâs request by saying that the documents he produced were permissible âsummariesâ and that he acted in good faith, citing a section of the Georgia Bar Rules of Professional Conduct.
Holland & Knight reiterated that defense: the âstatute does not dictate the manner in which the information must be produced. Mr. Berryâs description of the information as invoices is irrelevant to the analysis.â
The AJC/Channel 2 complaint to the attorney generalâs office says Berryâs actions were a violation of the open records act because he failed to inform the media companies that information on the requested invoices was being withheld.
âThe cityâs failure to disclose that it withheld responsive records is a violation of the Open Records Act,â the complaint says.
When asked if it is the cityâs position is that no laws were broken, a mayoral spokesman said the âultimateâ decision on that will be made by the GBI and attorney general.
The Holland & Knight team:
John Brownlee: Former U.S. Attorney who is chairman of Holland & Knight's National White Collar Defense and Investigations Team, and a member of the firm's Directors Committee. $950 an hour. 43.8 hours. $33,943.50 after 10-percent discount.
Robert Highsmith: Partner in Holland & Knight's Atlanta office who has represented former Mayor Kasim Reed in personal and political matters, is the city's lobbyist, and has represented the city on numerous legal issues. $855 an hour. 18.1 hours. $8,232.75 after 10-percent discount.
Latoya Brisbane: Associate in the Atlanta office and a member of the firm's Litigation and Dispute Resolution Practice, focused on civil and commercial litigation. $498 an hour. 27.5 hours. $12,325.50 after discount.
Stewart Gordon: Strategic Communications Adviser on the firm's High-Stakes Communications and Risk and Crisis Management Teams in Washington, D.C. $540 an hour. 4.6 hours. $2,235.60 after discount.
Paralegals: Two worked on the case, each at $275 an hour. 1.7 hours. $420.75 after discount.
Totals: 95.7 hours. $623.60 average hourly rate. $57,158.10 after discount.
Source: Holland & Knight invoice submitted to city of Atlanta.
Being transparent with readers
Staff writers Dan Klepal and J. Scott Trubey are named in the AJC and Channel 2âs complaint to Attorney General Chris Carr detailing examples of the cityâs failure to comply with the Georgia Open Records Act. Separately, Klepal was interviewed by GBI agents in March about his experiences dealing with City Hall on open records matters as part of the stateâs criminal investigation.
The story so far
On March 8, the AJC and Channel 2 Action News broke the story that Mayor Kasim Reedâs former press secretary intervened with a Watershed department official to delay release of billing records associated with City Council members and the mayor.
On March 13, the GBI opened a criminal investigation into the press secretaryâs text messages. On March 16, the AJC and Channel 2 reported that the investigation also included questions about City Attorney Jeremy Berryâs handling of an unrelated records request for legal billing records.
On April 12, the AJC and Channel 2 reported that Berry had retained the Holland & Knight law firm on March 13 to represent the city in the GBI investigation. The media outlets requested a copy of the report Holland & Knight prepared for the city and presented to the GBI on March 22, along with the firmâs bill.
Todayâs story reveals the contents of the law firmâs report and the $57,000 charged to the city to produce it.