Judge criticizes Fani Willis for breaching open records laws

On Friday, March 1, 2024, Fani Willis attended a hearing about the Georgia election interference case in Atlanta. In the image on the left, you can see her arrival. The picture was taken by Alex Slitz and was published by AP Photo. Jack Smith, on the other hand, spoke about an indictment of former President Donald Trump on August 1, 2023. The picture capturing this moment was taken by Jacquelyn Martin and is stored as a file in the AP Photo archives.

A court in Georgia this week found Fulton County District Attorney Fani Willis in violation of Peach State law open records laws yet again.

This time, the violation occurred within the context of a lawsuit aimed at prying away information about the Democratic Party prosecutor’s communications with special counsel Jack Smith and members of the since-defunct House select committee investigating the Jan. 6 attack.

In a 6-page order granting the plaintiff’s motion for default judgment, Fulton County Superior Court Judge Robert McBurney ordered the district attorney’s office to provide the requested documents and left open the possibility of forcing the state to pay attorneys fees.

In the underlying lawsuit, conservative government watchdog group Judicial Watch accused Willis, and Fulton County broadly, of making “likely false” representations about the retention of such documents.

“Fani Willis and Fulton County seem to have provided false information about having no records of communications with Jack Smith and the Pelosi January 6 committee,” Judicial Watch President Tom Fitton said in a March press release announcing the lawsuit.

On Aug. 22, 2023, the watchdog group filed an open records request for all “documents and communication sent to, received from, or relating to” Smith, any employees in his office, and the House committee investigating the pro-Donald Trump riots.

After the request was acknowledged, Fulton County sent a reply stating they “do not have the responsive records,” the lawsuit says.

On March 5, the accountability group filed the lawsuit in Fulton County Superior Court, alleging later-in-time information shows such records, at least to a limited extent, are in the government’s possession. Later, Fulton County was removed from the lawsuit while Willis remained.

But since then, very little has occurred — at least in terms of what Willis, her office, or her underlings have done in the case.

In the court’s order, the judge noted that the district attorney has been in default since April 11 — but only moved to appear in the lawsuit well after that date, on May 15. In that first appearance, Willis opposed the plaintiff’s request for a default judgment filed on April 30.

The order muses about why the prosecutor might have been extremely tardy in responding to Judicial Watch.

“It is undisputed that Defendant was properly and sufficiently served,” the order explains. “Plaintiff filed the return of service two days later … For reasons unknown to the Court, the return did not appear on the Court’s electronic docket when it was filed and processed and so on [April 15], the Court, believing that Defendant had not yet been served, entered an Order directing Plaintiff to serve Defendant. Plaintiff responded to the Court’s directive the same day by re-filing the return showing Defendant was served on [March 11].”

Willis essentially argued that the mystified court’s order, in turn, mystified her and/or her office as well.

The judge had some, but not much, sympathy for that argument.

That’s because the tardiness from Willis and her team was coupled with indifference and deficient filings.

Under Georgia law, several statutes allow for a party to “open default” — defend the case on the merits — after they have been found in violation of not responding to a lawsuit. In some cases, a party can open default well after being found in default — so long as they use certain procedures enumerated by the state’s supreme court.

In no uncertain terms, the court notes that Willis did not avail herself of any of those procedural safeguards for defendants.

“Defendant did none of that: she never moved to open default on any basis (not even during the period when she could have opened default as a matter of right), she never paid costs, and she never offered up a meritorious defense,” McBurney’s order explains.

The upshot here is that Judicial Watch legally proved all of its claims — including the claim that Willis violated the law.

“Plaintiff is thus entitled to judgment by default as if every item and paragraph of the complaint were supported by proper and sufficient evidence,” the court’s order goes on. “Here, this means Plaintiff has established that Defendant violated the ORA by failing to either turn over responsive records or else notify Plaintiff of her decision to withhold some or all such records.”

Willis must produce the responsive records within five business days — except for those “legally exempted or excepted from disclosure.” And, if such records are exempt, Willis must follow certain statutory procedures.

McBurney, for his part, says he believes Willis does, in fact, have at least some documents relevant to the original request.

“The Court expects that such production will include the correspondence identified by Plaintiff in its complaint,” the order continues. “If it does not, Defendant is further ORDERED to provide an explanation why such correspondence does not exist in Defendant’s records (or why it is being withheld).”

The right-wing group cheered the decision in a press release.

“Fani Willis is something else. We’ve been doing this work for 30 years, and this is the first time in our experience a government official has been found in default for not showing up in court to answer an open records lawsuit,” Judicial Watch President Tom Fitton said in a statement. “Judicial Watch looks forward to getting any documents from the Fani Willis operation about collusion with the Biden administration and Nancy Pelosi’s Congress on her unprecedented and compromised ‘get-Trump’ prosecution.”

Judicial Watch has also requested attorney fees. That matter is up for discussion in light of the default judgment. A hearing on the fee issue is currently slated for the morning of Dec. 20.