Fulton County District Attorney Fani Willis looks on during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta (AP Photo/Alex Slitz, Pool).
A court in Georgia has harshly upbraided Fulton County District Attorney Fani Willis and ordered her to pay a substantial sum for repeat violations of Peach State open records laws.
As Law&Crime previously reported, the violation occurred when the prosecutor’s office, in response to an open records request, denied having any documents showing any communications with special counsel Jack Smith or members of the since-defunct House select committee investigating the Jan. 6 attack on the U.S. Capitol.
Late last year, in response to a lawsuit filed by conservative government watchdog group Judicial Watch, Fulton County Superior Court Judge Robert McBurney ordered the district attorney’s office to provide the requested documents and/or offer an explanation for their continued absence — while leaving open possible attorneys fees.
After hearing what Willis and her office had to say, the judge assessed an award of $21,578 in attorneys’ fees and costs for the plaintiffs, according to the court’s latest order, dated Jan. 3 but just released this week.
“Fani Willis flouted the law, and the court is right to slam her and require, at a minimum, the payment of nearly $22,000 to Judicial Watch,” Judicial Watch President Tom Fitton said in a press release. “But in the end, Judicial Watch wants the full truth on what she was hiding — her office’s political collusion with the Pelosi January 6 committee to ‘get Trump.’”
In the underlying lawsuit, Judicial Watch accused Willis of making “likely false” representations about the retention of the documents in question.
In sum and substance, the court agreed with the plaintiffs, finding that Willis had both procedurally lost the case by refusing to respond and violated the law on the merits by repeatedly lying about the existence of at least some of those requested documents.
The court’s order is withering in its appraisal of how Willis and her underlings violated the Peach States Open Records Act (ORA).
“Most basically, by operation of law Defendant acknowledged violating the ORA when she defaulted,” McBurney writes. “But actual evidence proves the same: per her Records Custodian’s own admission, the District Attorney’s Office flatly ignored Plaintiff’s original ORA request, conducting no search and simply (and falsely) informing the County’s Open Records Custodian that no responsive records existed.”
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To date, Willis has since admitted that documents responsive to the Jan. 6 committee do, in fact, exist. Her office continues to maintain there were never any communications with the special counsel’s office. Initially, and for over a year, Willis claimed no such records — in response to either request — were anywhere to be found.
“We know now that that is simply incorrect: once pressed by a Court order, Defendant managed to identify responsive records, but has categorized them as exempt.” McBurney continues. “Even if the records prove to be just that — exempt from disclosure for sound public policy reasons — this late revelation is a patent violation of the ORA. And for none of this is there any justification, substantial or otherwise: no one searched until prodded by civil litigation.”
But, the court explains, Willis’ office, in fact, also had at least one responsive document that was not exempt — a letter Willis wrote to the Jan. 6 committee chair. Notably, this letter was the focus of Judicial Watch’s lawsuit — the nonprofit came into possession of the document after Willis denied the letter even existed.
Finally, after defaulting, Willis provided the letter directly — attached to a memo filed in response to a court order directing her to do so.
The judge glaringly recounted this turn of events:
In this memo, Defendant announced that there still were no records responsive to one set of Plaintiff’s requests (communications with former Special Counsel Jack Smith) but that there were in fact records responsive to Plaintiff’s second set of requests (communications with the United States House January 6th Committee) — but those were exempt from disclosure. Defendant, despite these reservations, did gamely attach to her memo a copy of the letter she wrote to the Chairman of the House Committee that (1) does not appear to be covered by any of the exemptions identified in the memo and (2) had already been identified by Plaintiff as a responsive record that was wrongly withheld.
“Somehow something had changed,” the judge angrily went on. “Despite having previously informed Plaintiff four separate times that her team had carefully searched but found no responsive records, now there suddenly were — but they were not subject to disclosure under the ORA.”
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The district attorney’s office eventually provided some key admissions about how all of this transpired.
“Plaintiff’s deposition of Defendant’s Records Custodian shed some light on this mystery: he admitted that there was no search for records back in August 2023,” the court order goes on. “Just a ‘no, go away.’ He further clarified that, when Plaintiff did not go away but instead sued, there still was no organized, comprehensive examination of the District Attorney’s Office’s records.”
In a footnote, McBurney further criticizes the DA’s office for the sum of their efforts to comply with the law. The judge observes: “Even after litigation began, Defendant’s Records Custodian initially merely asked certain employees if they thought they had any responsive records; there was no rigorous review of e-mails or case files.”
The lawsuit was filed in March 2024; by April of last year, Willis was in default. The legal process has played out slowly since then; the formal default verdict was entered in December.
After the prosecutor was found in default, Judicial Watch filed a separate motion asking for the court to appoint a special master in order to scour the agency’s files for the documents. Willis has until Jan. 16, to respond to that motion.
For now, her office has a bill to pay — due on Jan. 17.
“The ORA is not hortatory; it is mandatory,” McBurney lectured. “Non-compliance has consequences. One of them can be liability for the requesting party’s attorney’s fees and costs of litigation.”
