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Fulton County District Attorney Fani Willis arrives during a hearing on the Georgia election interference case, Friday, March, 1, 2024, in Atlanta (AP Photo/Alex Slitz, Pool).
Fulton County District Attorney Fani Willis recently asked a court in Georgia not to appoint a special master in response to her office’s repeat violations of Peach State open records laws.
As Law&Crime previously reported, those violations occurred when the prosecutor’s office, in response to open records requests, denied having any documents showing any communications with special counsel Jack Smith or members of the since-defunct House select committee investigating the Jan. 6 attack on the U.S. Capitol.
Late last year, in response to a lawsuit filed by the conservative government watchdog group Judicial Watch, Fulton County Superior Court Judge Robert McBurney ordered the district attorney’s office to provide the requested documents and/or explain its continued absence, leaving open the possibility of attorney fees.
After the prosecutor was found in default, Judicial Watch filed a separate motion asking for the court to appoint a special master to scour the agency’s files for the documents or, in the alternative to conduct an in camera inspection of the documents in question.
Earlier this month, the judge assessed an award of $21,578 in attorneys’ fees and costs for the plaintiffs — due on Jan. 17. Willis filed her office’s response to the special master request that same day.
Now, the embattled DA says she and her office are in compliance with the court’s December 2024 order and argue that Judicial Watch is simply asking the court for too much, too soon.
“Plaintiff’s request for in camera inspection of records that are attorney-client privileged and attorney work product is premature without the opportunity to first have an evidentiary hearing and there is no provision for in camera review of documents withheld due to a pending investigation or prosecution of criminal or unlawful activity,” the motion argues.
Willis also says the law does not allow the relief being requested.
“[T]he appointment of a Special Master in an open records case is not provided for by statute, unprecedented under the law, and overly intrusive,” the motion continues.
In the court’s order finding Willis in default, Fulton County Superior Court Judge Robert McBurney ordered the DA’s office to provide an explanation for any documents they continued to withhold.
To hear Willis tell it, she and her office did exactly as requested.
In regards to the documents related to the since-resigned special counsel, Willis said she submitted a letter “stating that there are no responsive documents.” In regards to the Jan. 6 committee documents, Willis said they “were being withheld because they are exempt pursuant” to a section of Georgia law.
“Plaintiff’s Motion must be denied,” the motion argues.
Judicial Watch, for their part, has expressed a certain level of doubt about the searches conducted by the Fulton County DA’s employees.
The group’s motion, filed on Dec. 17, 2024, says that Willis’ response to McBurney “makes no showing that the search was diligent.”
“Based on her previous searches in this matter, it probably was not diligent,” the motion reads. “Likewise, she provided no list or even a general description regarding any responsive records she has elected to withhold. Without a list or description, it is impossible to evaluate what, if any, exemptions or exceptions are applicable, as she now contends.”
Judicial Watch also notes that Willis admittedly “conducted at least three searches before finding any responsive records not already supplied by” the watchdog group itself in the litigation — aiming to raise questions about the basic competency of those working in Fulton County District Attorney’s Office.
Such competency issues, the group says, mean a special master is needed.
From the Judicial Watch motion, at length:
The foregoing gives rise to grave suspicion that all responsive records have not been found. The Court should appoint a special master to supervise and monitor the record searches. The special master should have authority to audit searches and conduct searches herself. She also should have authority to hire such consultants and experts as may be needed to execute her commission. The special master should make a recommendation to the Court as to how her fees and expenses should be allocated among the parties, taking into consideration whether she finds responsive records that Willis should have found but did not.
In her response, Willis argues the Open Records Act — the law she violated — does not entertain the possibility of a special master being appointed in order to remedy violations.
“Defendant vigorously objects to the appointment of a Special Master in this open records lawsuit because it is not a form of relief provided under the Open Records Act, it is unprecedented, and it is incredibly intrusive,” the Willis motion continues. “Plaintiff points to no authority that substantiates appointing a Special Master in open records case is a proper form of relief by the Court or under the Open Records Act.”
The district attorney goes on to say the appointment of such a special master would itself violate the law and “would impair the integrity of the pending and open criminal case.”
Read the full Willis filing here.