The Liberty County Development Authority went into an unwarranted executive session Jan. 6, during a meeting and workshop, according to Georgia Press Association attorney David Hudson.
The Coastal Courier initially contacted Hudson over concerns about whether the subject matter that prompted the development authority to enter into closed session qualifies as being exempt from public disclosure under Georgia’s open-meetings/open-records act, also known as the Sunshine Law.
Hudson asserts the LCDA should not have closed the meeting to the public. The GPA legal advisor said the study cited as reason for the executive session does not qualify as being exempt from public view.
The development authority maintains its board members legally entered into a closed session to discuss an incentives study commissioned by Industrial Developments International. LCDA officials consider the study exempt from public disclosure, because they claim the document contains proprietary information.
“Prior to the meeting, (development authority attorney Kelly Davis) advised us verbally that going into executive session was the best way to handle board discussions of the incentives study commissioned by IDI (Industrial Developments International) and shared with us,” said Danielle Hipps, LCDA director of marketing and communications, in a Jan. 7 email. “The company regarded the study results as proprietary and has legal documentation declaring such, which therefore renders them exempt from public inspection.”
Hudson and Davis offered different interpretations of the Georgia open-meetings/open-records act, citing different sections of the code in several emails.
“The 2012 revisions to the Georgia Open Meetings Act expressly permit executive sessions when necessary to discuss a record — or portions thereof — exempt from public inspection under the Georgia Open Records Act (e.g. records containing trade secrets, proprietary information, etc.),” Davis said in a Jan. 7 email, citing O.C.G.A. § 50-14-3(b)(4). “While most public agencies regarded this exception as implied under prior law, the new revisions make this exception explicit.”
“It is correct that an agency may vote to meet in a closed session to discuss a document that would be exempt from public inspection,” Hudson said in a Jan. 7 email. “However, there is no exception that makes a study commissioned for the development authority by an outside consultant closed to the public. Even if the outside consultant declared the document proprietary, that would not defeat the right of the public to inspect documents that have been provided to a public agency concerning the business of the agency.”
Hudson said proprietary documents — or trade secrets — can only be kept from the public when these trade secrets are required by law to be submitted to the agency, along with an affidavit.
“A study bought and paid for by the development authority and submitted to the authority would not qualify as an exempt document, and thus a closed meeting to discuss a non-exempt document would not be in compliance with the law,” he concluded.
In a succeeding email dated Jan. 22, Davis referred to another section of the open records act, O.C.G.A. 50-18-72(a)(35), stating that the following is not required to be open to the public: “data, records or information of a proprietary nature, produced or collected by or for faculty or staff of state institutions of higher learning, or other governmental agencies, in the conduct of, or as a result of, study or research on commercial, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where such data, records or information has not been publicly released, published, copyrighted, or patented.”
Hudson countered the development authority attorney’s position in a Jan. 23 email, stating that this section of the code was “put in the law to protect academic research performed by or with a government education institution or other government agencies, on research projects of various types.”
“It is designed to prevent others from pirating the research work that is being conducted before that research is published or used by the owner,” he explained.
Hudson said the study commissioned by the development authority was “undertaken specifically for the benefit of that public agency and to advise it on how it will conduct its affairs.”
“It is not anything that has commercial use that could be marketed to others,” he added. “Thus, the exception relied upon by the authority, in my view, is not applicable.”
Davis said the development authority strives for transparency, yet has a responsibility to protect its industrial clients.
“Like other government agencies devoted to economic development, the authority occasionally struggles with such matters, as it is sometimes difficult to weigh the paramount right of the public to access public records against the occasionally competing and legitimate interests of the authority and its industrial clients and development partners to safeguard valuable proprietary information,” he said. “At all times, however, the authority endeavors to fully comply with applicable law, including Georgia’s Sunshine Laws.”
Davis and development authority officials commented they were open to further discuss the issue with the Courier.