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Griffin Police Department Chief Mike Yates – Photo courtesy of the city of Griffin
SHEILA A. MATHEWS :::
The city of Griffin and Griffin Police Department Chief Mike Yates are refusing to release for review certain records pertaining to Tyler Cooper, formerly of the GPD, that were requested by The GRIP under the Georgia Open Records Act. The original request was made Feb. 3, and repeated efforts to obtain these records since that date have been unsuccessful.
The records requested included Cooper’s personnel file; all records pertaining to the hiring process including test information, evaluation information, referrals and/or recommendations and interviews; all field training observation records; all performance reviews; and all disciplinary records.
Under the Open Records Act (ORA), agencies are required to “produce for inspection all records responsive to a request within a reasonable amount of time not to exceed three business days of receipt of request…In some instances where some, but not all, records are available within three business days, an agency shall make available within that period those records that can be located and produced.”
In addition, the ORA states, “In any instance where records are unavailable within three business days of receipt of the request, and responsive records exist, the agency shall, within such time period, provide the requester with a description of such records and a time line for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.”
Billie Preston, then an administrative assistant in City Manager Kenny Smith’s office, responded by email on Feb. 7 – the third business day – stating, “…please be advised that it will likely be Friday, February 10 before all information needed to respond to your request will be available. Furthermore, at this point, we estimate the cost to gather and prepare material in which you’re in need of will exceed $25. Please advise us how you would like to proceed with your request.”
The notice of the cost estimate is a provision of the ORA, which states agencies shall notify requesters if the material sought will cost in excess of $25.
The GRIP responded that yes, the request should be completed, and that the material was only to review, not be duplicated.
Preston acknowledged the initial request was to review the records and further explained that the cost estimate was for “the time spent preparing the information for you to review.”
When asked what the time estimate included and for a cost estimate, Preston stated the estimate then was $49.42 “for time spent by HR and Chief Yates reviewing and providing documents…”
On Feb. 7 – the third business day following receipt of The GRIP’s Open Records request – no records were produced for inspection, nor was a description of those records provided as the ORA requires.
On Feb. 10 – the fifth day – city of Griffin Assistant Open Records Clerk Teresa Watson, who also serves as the executive secretary in the Office of the City Manager, provided by email the city’s response.
Watson stated Cooper’s personnel record; field training records including reviews; performance reviews; and disciplinary records were being provided “with redaction.”
According to the ORA, “In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph…”
Although Watson stated multiple redactions had been made, there were no citations of the legal authority upon which the city was withholding those records.
Additionally, in response to the request for all records pertaining to the hiring process including test information, evaluation information, referrals and/or recommendations and interviews, Watson stated, “Provided with redactions except for the confidential Personnel Evaluation Profile (PEP), for which public disclosure is not required due to federal statute or regulation requiring they be kept confidential, i.e. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Computerized Voice Stress Analysis (CVSA), the disclosure of which is prohibited except in narrowly defined instances (29-U.S. Code §2008 – Disclosure of Information).”
After the delay of two additional days, the final charge totaled $55.20, and upon request, an itemization was provided. Watson reported that $40 was assessed for just over one hour expended by Chief Yates for review of Cooper’s personnel file to review/determine exemption status, and $9 was assessed for time expended by Diane Martin, of the Griffin Police Department, who also serves a city of Griffin assistant Open Records Clerk.
Per the requirement of the ORA, there was no charge for the first quarter-hour of Martin’s time expended. Watson also said she did not charge The GRIP $5.17 that represents a quarter-hour of her time expended compiling documentation, nor did she assess charges for time expended by Human Resources Director Miles Neville, of which she said she was unaware. The remainder of the charges were for the duplicate of records, which the city may not charge for if the request is solely to review information.
Pursuant to the ORA, “…the charge for the search, retrieval or redaction of records shall not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of records, has the necessary skill and training to perform the request…”
Based on that legal requirement for assessing charges, The GRIP requested clarification on the city’s charges for an agency head’s time – Yates – rather than strictly that of Martin, who has not only in excess of a decade of experience, but is also listed on the city’s website as one of two assistant Open Records custodians.
In response, Watson said, “The lowest-paid person who is capable of the activity (review/production of documents/etc.). In this case, Chief Yates is the only one familiar with the Polygraph Protection Act, the scope of all active and ongoing investigations, and the potential for identification of a confidential source, each of which is exempt under the ORA.”
Based on that information, a formal protest was made.
In part, it stated, “Diane Martin, who prepared the information pursuant to my request, has been the Griffin Police Department record custodian for many years, and has tremendous experience identifying information that may be redacted under the ORA. Based on the explanation provided, it would be necessary to identify Chief Yates as the records custodian. If he is the only employee capable of determining to such a great extent what information may be released, it would be virtually impossible for anyone other than him to process an ORA (request).”
Watson responded in part, “Not correct. I quite often have to enlist the assistance of Department Directors or Deputy Directors in fulfilling ORA requests. That certainly does not mean they are to be considered Open Records Officers.”
The request to amend the charges was denied.
The GRIP extensively researched the two federal laws Yates cited as the basis of exempting from release portions of the information sought, as well as the foundation of the protested charges.
The federal Employee Polygraph Protection Act – 29-U.S. Code (section) §2008 – Disclosure of Information – does provide quite limited circumstances under which examinations such as Cooper’s computer voice stress analysis (CVSA) could be released, none of which are applicable to The GRIP’s Open Records request.
However, only two sections prior in the same law, 29-U.S. Code (section) §2006(a) – Exemptions, states, “No application to governmental employers – This chapter shall not apply with respect to the United States Government, any State of local government, or any political subdivision of a State or local government.”
With regard to HIPAA – the original basis of Yates’ refusal to release Cooper’s Personnel Evaluation Profile – the city of Griffin was non-compliant with the Open Records Act in that it failed to provide the specific subsection and paragraph of that lengthy federal law. Despite that, the United States Department of Health and Human Services website at https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html states, “The Privacy Rule (HIPAA) does not protect your employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.”
Based on this information, The GRIP again protested the exemption of information from release and the charges based on Yates’ exclusive knowledge of two federal laws that are non-applicable to this Open Records request.
In response, Yates on April 12 placed a phone call to The GRIP Publisher Sheila Mathews, asking if her concern was the cost cited or the withholding of records. She replied, “Both.”
“With the Polygraph Protection Act, generally, what that thing does is it relieves the prohibition from local and state agencies from utilizing the polygraph at all, but some of the guts relative to disclosure of the information is still basically included in some of the state law and things like that, so, I’ll get an explanation of that for you,” Yates went on to say, later adding, “Any kind of examination utilized for the purposes of employment, the substance of that is excluded from the (Open Records) Act.”
Watson next responded by email on April 21, stating, “Sheila, I am sorry for your confusion. I thought our previous multiple and lengthy replies of February 13, 14 and April 11 (in response to your protest dated March 24) had both clarity and detail, and we stand by the legitimacy and integrity of our original statement of costs for production of the Open Records Act request sent by email from you dated February 3, clarified on February and completed on February 10. However, I am including below comments from Chief Yates (his personal comments in italics) to, again, explain the circumstances of including billing for his time.”
Under (1), Yates again cited HIPAA, but still did not comply with the requirement of the ORA by providing the precise subsection and paragraph relevant to his exemption claim.
For (2), Yates said, “This applies to psychological examinations as well as health related information.”
The GPD Chief alleges the Personnel Evaluation Profile is a psychological evaluation and is therefore a medical record exempt from release.
However, the PEP, or psychological evaluation as it is alleged by Yates to be, was not conducted by a health care provider, but rather was administered by another officer of the Griffin Police Department.
On (7), Yates asserted that the CVSA and PEP were examinations utilized in the Cooper’s hiring process and as such, are exempt from release.
He also elaborated further on his perception of the federal Polygraph Protection Act.
“The PPA does exempt State and local entities from the act by allowing such polygraphs to be conducted by State and local government where the act prohibits other entities from utilizing such instrumentalities. It (the Act) does not exempt these entities from any privacy violations or other remedies should private or confidential information be improperly released or disclosed.”
The PPA itself states the exemptions on state and local governments includes “this chapter,” or the law in its entirety.
Yates also cited “the complexities of this particular case and the manner by which information and documents were co-mingled throughout the files” as another basis requiring his involvement.
“…I believe that I was the only person who was familiar with the examination materials (exempt), the HIPAA materials (psychological examination/s – exempt) and the ongoing nature of an internal investigation which may have disclosed the identity of a confidential source,” Yates wrote. “Given these facts and circumstances it was more efficient for me to review and redact the files than it would have been for the city to have elicited the assistance of Diane Martin, City Staff Attorney Jessica Whatley O’Connor and/or others to review and segregate the files. It is my opinion that it actually cost less for me to review same than it would have cost to complete the task by other means.”
His response disregards the fact that the city of Griffin indeed did utilize and charge at least in part for the services of Diane Martin, Teresa Watson and Miles Neville in the production of the requested records.
The GRIP also noted the addition of information in Yates’ response regarding an internal investigation that had not previously been mentioned. Learning of that allegation, another Open Records request was submitted for “the case numbers of any and all internal investigations that pertained to or involved Tyler Cooper…”
In response, Watson said, “…please be advised there is no internal investigation…therefore, no case number exists.”
Despite the city of Griffin’s repeated refusals to release at an appropriate charge the requested records on Tyler Cooper, The GRIP had knowledge this same evaluations had been previously released on other personnel of the Griffin Police Department. At the times the identical types of information were released, the same government actors were in place.
The GRIP then submitted Open Records requests for duplicates of previous requests that were submitted in August and September 2016.
As a result of those requests, the city of Griffin released to The GRIP the computer voice stress analysis and the Personnel Evaluation Profile examinations of current GPD Officer Matthew Boynton and Josh Howell, a former officer who resigned in the midst of a use of force investigation. Although it was released previously to a citizen and to The GRIP, that is the very information Chief Yates refuses to release on Tyler Cooper, the GPD officer who was in 2017 allowed to resign in lieu of termination.
Not only did the release of those records indicate the city of Griffin and Yates will release the exact information they are now refusing to release, but those released records raised additional questions, resulting in additional Open Records requests submitted to the city of Griffin.
The GRIP on May 16 requested “a disc containing the GBI investigative case file pertaining to a May 2016 investigation of Josh Howell…”
The city responded by saying, “…the city of Griffin is not in possession of a report from the GBI pertaining to any investigative case file resulting from a May 2016 investigation of Josh Howell…”
It was recommended that the GBI be contacted instead.
After following that recommendation, The GRIP on June 6, submitted a new request for that same GBI investigative case file.
In less than three hours, a response was received from Watson.
“In response to the ORA request received from you today, I reiterate the following that was provided to you on May 18, 2017, in response to your ORA of May 16 requesting the same, or similar, information…Our response is still the same in that we do not have, nor have we had, in our possession a GBI investigative case file pertaining to Josh Howell,” Watson wrote. “Again, I double-checked with Police Chief Yates, but, of course, received the same result…”
Once again, Watson suggested contact be made with the GBI, but that had already occurred. Subsequent to an Open Records request submitted to GBI Special Agent in Charge Lisa Harris, The GRIP had in hand information contradicting the city’s and Chief Yates’ repeated claims to not now have, nor to have ever had, the Josh Howell investigative case file.
According to GBI Special Agent Jared Coleman, the case agent in the Josh Howell investigation, the Griffin Police Department did receive a copy of the complete case file.
Exhibit 16 of that GBI case file lays this out in a summary of Coleman’s actions.
“On Thursday, September 8, 2016, at approximately 10 a.m., Special Agent Jared Coleman was located at the Griffin Police Department located in Griffin, Ga., pursuant to meeting with Griffin Police Department Lt. Darrell Dix in reference to turning over a copy of this case file to the Griffin Police Department,” Coleman stated. “During the course of the contact, Agent Coleman turned over a copy of this case file in digital form copied onto a USB drive. Lt. Dix signed a release of case file form.”
Following the city’s second denial of possession of this requested record, The GRIP made contact with Darrell Dix, formerly of the Griffin Police Department, who now serves as Spalding County Sheriff.
Dix confirmed Coleman’s statement and said he did meet with the agent in September 2016, at which time he took possession of the GBI’s Josh Howell investigative case file.
Sheriff Dix said he recalls signing a release indicting he had received a copy of the record.
Asked if he took that investigative record with him when he retired from the Griffin Police Department, Dix said no, it remained at his former agency.
Although the official GBI record and statement of Sheriff Darrell Dix contradict the claims of the city of Griffin and Chief Mike Yates, The GRIP has not yet received a copy of the full investigative record requested twice through the Open Records Act.
The GRIP will continue to seek these records from the city of Griffin and the Griffin Police Department.
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STAFF REPORT :::
SHEILA A. MATHEWS :::
