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Appeals court hears arguments in Times lawsuit
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Judges for the Court of Appeals of Georgia heard arguments Tuesday from both the city of Gainesville and The Times regarding a dispute over the protections and exemptions of the state’s Open Records law.

The city has appealed a decision made in June by Hall County Judge Bonnie Chessher Oliver that the city violated the state’s Open Records Act when it refused to release the full contents of a letter tied to the investigation of Gainesville’s former city manager Bryan Shuler.

The letter, sent anonymously to two city officials in 2008, alleged Shuler sexually harassed two city employees with late-night text messages and phone calls and hinted at a possible affair between Shuler and a city employee.

The letter sparked an investigation into Shuler’s conduct in November 2008. But before the investigation was complete, Shuler resigned, citing a need to take care of his ailing parents in South Carolina. City officials have said there was no reason to believe the allegations were true.

On Tuesday, attorney Phil Hartley, representing the city in the lawsuit, told a panel of three appeals court judges that the city tried to protect the privacy rights of its employees by redacting some of the names in the letter. When it released the letter to The Times in 2008, the city removed the names of at least two female city employees who were Shuler’s alleged victims.

Hartley told the judges Tuesday that allowing The Times to have the unedited version of the letter would be contrary to the city’s policy of encouraging employees to report sexual harassment with confidentiality.

“Nothing is more sacred in terms of privacy rights than information about sexual relations,” Hartley said.

He said that during months of negotiations, the city has offered to give The Times an unedited version of the letter as long as the newspaper would promise not to print the names in question without the permission of those mentioned. Hartley called the city’s offer “an attempt to avoid where we are — right here.”

The Times refused that offer and instead filed suit against the city in March.

On Tuesday, Presiding Judge G. Alan Blackburn asked the newspaper’s attorney, David Hudson, why The Times would not accept the city’s offer. Hudson said accepting such an offer would be “inappropriate” and could suppress the newspaper’s ability to inform local citizens.

“The government ... does not have the right to censor the press,” Hudson said.

When it removed the names, the city originally cited an exemption to the state’s Open Records Act that allows governments to withhold “medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.”

Hudson told the panel that the city waited too late to assert that it was keeping the information in the letter private because of its sexual harassment policy.

State law requires local government officials to state why they are keeping information private when they respond to record requests. The law gives governments five days to change the reason, Hudson said.

Hudson said the city waited until 30 days after the newspaper filed suit against the city to assert that it was protecting its sexual harassment policy by keeping the names in the letter private.

“Your honors, the position taken by the city is completely off the track,” Hudson said.

Over the next couple of months, the appeals panel will decide whether or not to uphold Oliver’s decision. In June, she ruled that even if the allegations against Shuler were untrue, as city officials contend, the complete letter is a public document and that making the names public would allow The Times to investigate how the allegations were handled.

“... the allegations of sexual harassment are unsubstantiated; the fact that the two women have information about how the government dealt with allegations of sexual harassment is not,” Oliver wrote.

The judges also will decide whether to award attorneys’ fees to The Times. In her June decision, Oliver did not do so because she said she felt the city was justified in believing parts of the document should be private.

“For one thing, The City was faced with what they see as a very real conflict between their own sexual harassment policy and the Open Records Act,” Oliver wrote. “For another, The City only redacted the names because it felt that they were inconsequential. While this Court disagrees with that conclusion, there was a substantial basis for it.”

The Times appealed that portion of the decision, and Hudson asked Tuesday that the panel of appeals court judges grant the fees to the newspaper. Without the fees, Hudson said the state’s Open Records law would become a “paper tiger” that could be evaded with costly litigation.

“Governments will take the position of ‘so, sue me,’” Hudson said.
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