Judge Responds To Open Records Request By Having Requester Indicted, Arrested

from the FOIA-TO-JAIL.-FOIA-DIRECTLY-TO-JAIL.-DO-NOT-PASS-GO. dept

We've seen government officials do some pretty questionable things to avoid turning over documents to FOIA requesters. The most common method is just to stick requesters with a bill they can't pay. Stonewalling is popular, too -- so much so that the federal government sends out "Still interested?" notices to people whose requests have been backburnered for years.

More rarely, officials will race requesters to the courthouse, hoping to secure a judgment in their favor stating that they've already fully complied with a FOIA request -- even when they've done nothing but withhold and redact. Stripped of all the legal wrangling, this is basically the government suing individuals for asking for documents, forcing taxpayers to go out-of-pocket if they hope to counter the officials' assertions.

But one thing we haven't seen is a government official securing a grand jury indictment against open records requesters… for making open records requests.

A North Georgia newspaper publisher was indicted on a felony charge and jailed overnight last week – for filing an open-records request. Fannin Focus publisher Mark Thomason, along with his attorney Russell Stookey, were arrested on Friday and charged with attempted identity fraud and identity fraud. Thomason was also accused of making a false statement in his records request.

The pair had been going after local judge Brenda Weaver and other court staff for some time, tracing back to her predecessor's (former judge Roger Bradley) use of a racial slur in the courtroom. The slur was attached to a defendant's name, and this slur was repeated by the district attorney and court deputies. Thomason acquired a copy of a transcript only to find the repeated use of the slur by court deputies had been removed. He asked for the audio recording of the hearing and was rejected.

This led to an article by Thomason in which he noted the missing slurs and presumably questioned the court stenographer's skills/honesty. The court stenographer sued Thomason for defamation, seeking $1.6 million in damages. The suit was dropped when it became clear Thomason, like many journalists, is judgment-proof -- i.e., there's no way he had anything close to $1.6 million laying around. The case was closed by a judge who determined Thomason had no proof that the transcript was inaccurate.

The court stenographer then filed a motion to recover legal fees, despite the fact that then-Judge Bradley had already cut her a check for $16,000 to reimburse her for her legal costs. That led to the current run of subpoenas and records requests in which Thomason hoped to show a judge that the stenographer had already recovered her legal fees.

Judge Weaver's response to this lawful dig for pertinent records was to work in concert with the district attorney to bring charges against the pair -- claiming ridiculously that "Thomason would use the banking information on those checks for himself."

Weaver's accusations -- pushed past a grand jury by District Attorney Alison Sosebee -- are exactly that: she's accusing Thomason of seeking to take funds from Weaver's bank account. According to Count One of the indictment [PDF], Thomason's subpoena -- which sought front/back copies of checks issued from the account -- was nothing more than a failed attempt at identity fraud.

...with intent to unlawfully appropriate resources of said victim, contrary to the laws of this State…

The next count is just charge stacking: attempt to commit identity fraud. The third, however, seeks to make the filing of a public records request a criminal act.

…[w]hen the accused requested documents pursuant to the Open Records Act… to Robert P. Jones [Chairman of the Pickens County Board of Commissioners] and specifically requested "the actual cleared checks (front/back) that Pickens County had written to Judge Brenda Weaver and Judge Roger Bradley for Pickens County's portion of the quarterly operating account expenses for the judges from the years 2013, 2014, and 2015" and further stated "after reviewing only the checks written on behalf of Fannin County for the 2015 year and finding that, according to several banks, some of these checks appear to have not been deposited but cashed illegally," knowing the same to contain a false and fictitious representation…

In short, Judge Weaver claims the requesters lied on their request... which is apparently against the law... somehow. While the statute does forbid the use of false statements in documents submitted to officials, there's no indication it was meant to cover allegedly inaccurate assertions made in open records requests. On top of that, the quoted request makes it clear the assertion of illegality was made by "several banks," not the requesters themselves.

It could be that Judge Weaver is simply trying to shield courtroom employees from what she apparently views as harassing behavior. But the decision to handle the situation with a grand jury indictment, rather than litigating the open records request itself, definitely gives the situation the appearance of a concerted coverup. The subpoenas may be more legally questionable, but the application of this statute to an open records request looks like someone with a keen interest in keeping requested documents out of the hands of the journalist seeking them.

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Filed Under: brenda weaver, foia, identity fraud, mark thomason, open records, press freedom, punishment, russell stookey

Companies: fannin focus