Request by resident of Goshen is mishandled

A Goshen resident's request for a copy of a $50 million stimulus application affecting her neighborhood was mishandled by the Housing and Community Development Department, city officials acknowledged Wednesday.

But that might be putting it mildly.

According to both the Georgia Attorney General's office and Georgia Press Association attorney David Hudson, the department blatantly violated the state open records law.

Mr. Hudson said the department broke the law twice - once when a manager told Becky Shealy she couldn't have the document, and again when she was given an incomplete copy a day later.

Attorney General's spokesman Russ Willard concurs that the law was violated the moment Housing and Economic Recovery Act Manager Shawn Edwards told Mrs. Shealy by e-mail Aug. 10 that he wouldn't give her the application, and that she could ask her questions at a public forum held at the Municipal Building the following day.

"Until the meeting tomorrow at the Commission Chambers," Mr. Edwards wrote, "we have been advised that the information disseminated needs to be limited and that comments need to be restricted."

Mr. Willard said a desire to control the flow of information isn't a valid exception to the open records law.

"It appears that this is a blatant violation," he said. "I don't think there's any question that it is."

A call to City Attorney Chiquita Johnson was returned by staff attorney Kenneth Bray, who said he looked into the situation and doesn't believe the law was broken.

"That was not the right way to respond," he said of the HERA manager, "but he did give her the information."

Mr. Bray said he's not sure Mrs. Shealy made a verbal request Aug. 6, as she said she did and as one of Mr. Edwards' e-mails alludes to. Regardless, she received a copy of the application Aug. 11, which, as the law requires, is within three business days.

She didn't complain about it being incomplete until she addressed the Augusta Commission as a Goshen representative Tuesday, and the full application is being sent to her, he said.

Mr. Bray pointed to a passage in the open records act allowing public agencies five days to correct errors in responses.

But Mr. Hudson said he's misinterpreting the code section. It refers to errors in legal reasons given for withholding exempt records, he said.

"You can change the reason that you didn't give the documents," Mr. Hudson said. "That doesn't forgive the fact that they did not meet the three-day deadline."

Mrs. Shealy is one of hundreds of Goshen residents concerned about how a development funded with $21 million from the U.S. Department of Housing and Urban Development's Neighborhood Stabilization Program II might affect the neighborhood. She said she was only trying to educate herself, that she knows little about Section 8 or HUD housing, and she wanted to see what the city and developers were requesting from Washington.

"I've always been taught that you get the facts before you act," she said. "We want our local government to know that we are educated, that we are on top of things, and we're going to be in their faces."

When she made her first request, Mr. Edwards answered some questions and pointed her to some helpful links on the HUD Web site, Mrs. Shealy said. But he told her Aug. 10 that he was "not in a position to share the NSP2 application with you at this time."

Who might have advised him that "information disseminated needs to be limited" remains a mystery. His supervisor, department director Chester Wheeler, said it wasn't him, and he doesn't know that anyone told Mr. Edwards that. Mr. Edwards didn't return phone messages Tuesday or Wednesday, and an e-mail seeking comment resulted in a response saying The Chronicle could pick up a copy of the stimulus application at his office.

After being denied the document, Mrs. Shealy sought help from Commissioner Don Grantham, who made a call to Housing and Community Development, then told Mrs. Shealy she could pick up the application the following day. The packet she received Aug. 11 contained a PowerPoint presentation, a legal notice, a copy of HUD regulations and a 32-page portion of the application that she knew was incomplete because it was missing signature pages.

The copy obtained by The Chronicle on Wednesday totaled 69 pages. The part Mrs. Shealy received is the narrative, and among the sections left out were the actual application form, signature sheets signed by Mr. Wheeler and Mayor Deke Copenhaver, a disclosure report and letters from Georgia Bank & Trust Co. and Capitol City Bank & Trust Co.

Though Mr. Grantham questioned how pertinent the omitted sections might have been, he said they shouldn't have been withheld.

"She requested it. She should have been given it," he said. "That's the bottom line."

Mr. Grantham said the incident might point to a need for employee training on how to respond to requests for documents.

"It wouldn't hurt to have a workshop on it," he said. "A lot of them probably don't even know."

Other commissioners seemed more dismayed that they didn't find out about the application before it went to Washington, much less get a copy of it, though they agreed it should have been given to a resident who asked for it.

"You know something's wrong with that," Betty Beard said.

"Welcome to what we've been talking about for the past year-and-a-half," Corey Johnson said. "Policies and procedures. There's a lot of things that are supposed to be happening that aren't."

City Administrator Fred Russell said that, per city policy, Mr. Edwards should have referred Mrs. Shealy to the Law Department.

"Not having looked at the e-mails," he said, "that wasn't the correct answer. The correct answer should have been, 'I'll refer you to the attorney.'"

Asked if that policy is set forth in writing, he referred questions to Ms. Johnson, who has had department heads routing records requests through her office since she took over in early 2008.

Both Mr. Hudson and Mr. Willard said readily available records should be provided upon request. Mr. Hudson said documents such as meeting minutes and, say, a controversial pending stimulus application, are clearly open to the public and shouldn't have to go through the city attorney.

"No mystery there," he said. "No rocket science involved."

Mr. Willard said that while the Augusta employee violated the law, he could not say whether a misdemeanor was committed. An open records violation has to be "knowing and willful," meaning ignorance of the law is essentially a defense.

"It may be that whoever was responding to her didn't understand the law," he said.

Reach Johnny Edwards at (706) 823-3225 or johnny.edwards@augustachronicle.com.

Background: Under Georgia law, government agencies have three days to respond to open records requests. Goshen resident Becky Shealy asked for a copy of a stimulus application two weeks ago and has yet to receive the full document from the city. Officials say it's in the mail.

CORRESPONDENCE

Excerpts from Aug. 10 e-mail correspondence between Goshen resident Becky Shealy and Housing and Economic Recovery Act Manager Shawn Edwards:

Mr. Edwards: "Good Morning, Becky, I wanted to make sure that I touched basis (sic) with you before tomorrow's meeting as I am sure you and several members of the community will be there. Although I am not in a position to share the NSP2 application with you at this time, you will be able to ask questions pertaining to any aspect of it that affects you neighborhood an/or Richmond County in general ..."

Mrs. Shealy: "Good Morning Shawn, I hope this email finds you doing well on this Monday morning. I did receive the Notice of Meeting last Thursday and I thank you very much for the email ... I do, however, have a question. Why am I not privy to the NSP2 application? Is this not public record?

Mr. Edwards: "As it was explained to me Mrs. Shealy, although the use of funds noted in the application is public record, the public notice of funds intention was sufficient to meet HUD requirement at this time which took place through the Augusta Chronicle in July. Until the meeting tomorrow in the Commission Chambers we have been advised that the information disseminated needs to be limited and that comments need to be restricted. At that meeting however you will have ample opportunity to discuss the aspects of the application pertinent to your neighborhood ..."

Mrs. Shealy: "Shawn, Will we have the opportunity to review the application tomorrow evening? I have been told there are requirements for these monies that need to be met. For example, there is a transportation clause in the application. If we don't know about these requirements, how do we know what questions to ask? I am not trying to be obstinate, I just need to know I am not being blind-sighted (sic)."

Mr. Edwards: "First, let me say that it is not that the information in the application will not be made available for the citizens in the affected areas as those moving in as future potential buyers and those already living in these communities have a right to fully understand the ramifications of the investment of HUD funding in their neighborhoods. It is however, that some miscommunication has occurred and we have found in the past that it is best to address concerns in person, in such arenas as the Public Hearing scheduled for Tuesday evening, to clarify information going out ... I have copied my assistant director and program administrator on this email so that they may remain abreast to concerns from the community and that we may be better prepared to address all concerns on tomorrow."

TIMELINE

Aug 5: Mrs. Shealy, researching how the $50 million application would affect the Goshen community, calls the city's Housing and Community Development Department and leaves a message for Housing and Economic Recovery Act Manager Shawn Edwards.

Aug. 6: Mr. Edwards returns the call, and they discuss her concerns about the application . Mr. Edwards refers her to links on the U.S. Department of Housing and Urban Development Web site.

Mrs. Shealy asks for a copy of the application. Mr. Edwards says he will have to run the request by his superiors.

Aug. 7: The city's Housing and Community Development office is closed .

Aug. 10: Mr. Edwards e-mails Mrs. Shealy early that morning and denies her request, telling her to save her questions for a public forum on the Goshen issue being held the following night. It is at this point, according to the state Attorney General's Office and Georgia Press Association attorney David Hudson, that the open records law was first violated.

The two also speak by phone, discussing the Aug. 11 meeting at the Municipal Building and another Aug. 13 in Goshen.

Mrs. Shealy, still trying to obtain the application, calls both of her commissioners, Jimmy Smith and Don Grantham.

Mr. Grantham returns her call, and she tells him Housing and Community Development won't let her see the stimulus application.

Mr. Grantham calls the department and talks to Director Chester Wheeler. Within 20 minutes of their first conversation, he calls Mrs. Sheal y again and tells her she can pick up the application the following morning.

Aug. 11: Mrs. Shealy goes to Housing and Community Development on Laney-Walker Boulevard and picks up a brown manila envelope. Inside is a 32-page narrative section from the application, a copy of the department's Power Point presentation, a copy of a notice published in The Chronicle and a copy of HUD regulations on public notice and comment.

Because she did not receive the complete application, this is the second time the law was violated, according to Mr. Hudson. Not included in the packet was the actual application form, signature sheets signed by Mr. Wheeler and Mayor Deke Copenhaver, a disclosure report and letters from two banks.

The entire application, obtained by The Chronicle on Wednesday, is 69 pages.

Tuesday: Mrs. Shealy, speaking as a representative of Goshen, tells the commission she's happy they've voted to table "ratification" of the application until the city finds out whether the funds have been awarded. She then brings up her difficulties in obtaining a complete copy of the application. Mayor Pro Tem Alvin Mason tells City Administrator Fred Russell to accommodate her.

Wednesday: City officials put a copy of the stimulus application in the mail to be delivered to Mrs. Shealy.

Sources: Becky Shealy; copies of e-mails provided by Mrs. Shealy; packet of documents provided to Mrs. Shealy by Housing and Community Development; full stimulus application obtained from Housing and Community Development; Commissioner Don Grantham; City Administrator Fred Russell