IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA CITY OF SANDY SPRINGS, GEORGIA ) ) Plaintiff, ) CIVIL ACTION ) FILE NO.: v. ) ) CITY OF ATLANTA, GEORGIA ) ) Defendant. ) ) COMPLAINT AND PETITION FOR MANDATORY MEDIATION COMES NOW, Plaintiff City of Sandy Springs, Georgia, and files this complaint against Defendant City of Atlanta, alleging as follows: PARTIES, JURISDICTION, AND VENUE 1. City of Sandy Springs, Georgia is a municipality formed and existing under the laws of the State of Georgia and located wholly or partially within the boundaries of Fulton County. 2. City of Atlanta, Georgia is a municipality formed and existing under the laws of the State of Georgia and located wholly or partially within the boundaries of Fulton County. 3. City of Atlanta may be served with process by serving the City Attorney Nina Hickson at City of Atlanta, Department of Law, 55 Trinity Avenue, Suite 5000, Atlanta, Georgia 30303. Jurisdiction is proper in this Court. Venue is proper in Fulton County. 4. 5.
FACTUAL BACKGROUND 6. City of Atlanta provides water services, including distribution and treatment, to City of Sandy Springs. 7. The water fees charged to City of Sandy Springs customers are higher than the water fees charged to customers who are located within City of Atlanta. 8. In an effort to determine the basis for the water fee being charged by City of Atlanta, on or about January 12, 2018, City of Sandy Springs served upon City of Atlanta, a written request pursuant to O.C.G.A. 50-18-71 seeking copies and/or access to certain public records in the possession of and maintained by City of Atlanta. 9. On January 19, 2018, City of Atlanta responded that due to the voluminous nature of the request, the documents would be made available within four (4) weeks. City of Atlanta further stated that portions of the records requested are exempt on the ground of privilege. 10. City of Atlanta first provided City of Sandy Springs with records on July 3, 2018. However, City of Atlanta s production was deficient as it did not fully respond to the request. 11. City of Sandy Spring sent correspondence to City of Atlanta on August 7, 2018 regarding City of Atlanta s outstanding and deficient response to City of Sandy Springs request. P a g e 2 8
12. On August 10, 2018, City of Atlanta responded that due to cyber-attacks, the requested documents would be made available within four (4) weeks subject to all available exemptions including privilege. 13. On August 13, 2018, City of Atlanta provided a duplicate copy of those records produced in July 2018. 14. City of Atlanta continues to withhold records responsive to City of Sandy Springs request and refuses to release same to City of. 15. On or about September 10, 2018, City of Sandy Springs served upon City of Atlanta, a second written request pursuant to O.C.G.A. 50-18-71 seeking copies and/or access to certain public records in the possession of and maintained by City of Atlanta. 16. On September 11, 2018, City of Atlanta Department of Watershed Management responded that due to cyber-attacks, it anticipated being able to provide a response within 7-10 working days. 17. On September 28, 2018, City of Atlanta provided City of Sandy Springs with an incomplete set of records in response to the second request. 18. City of Atlanta continues to withhold records responsive to City of Sandy Springs second request and refuses to release same to City of Sandy Springs. P a g e 3 8
19. On or about September 17, 2018, City of Sandy Springs served upon City of Atlanta, a third written request pursuant to O.C.G.A. 50-18-71 seeking copies and/or access to certain public records in the possession of and maintained by City of Atlanta. 20. On September 18, 2018, City of Atlanta Department of Watershed Management responded that due to cyber-attacks, the requested documents would be made available within 7-10 working days. 21. City of Atlanta has produced no records in response to City of Sandy Springs third request. 22. In addition to the Open Records Act requests, City of Sandy Springs has requested that City of Atlanta address and justify the water rates being charged to Sandy Springs citizens. 23. As part of this request, City of Sandy Springs commissioned the preparation of a rate study by a qualified expert pursuant to O.C.G.A. 36-70-24. 24. City of Sandy Springs has not been able to complete the rate study due to City of Atlanta s refusal to produce the requested public records. 25. City of Atlanta has failed to substantively respond to City of Sandy Springs requests to address and justify the water rates being charged to City of Sandy Springs citizens. P a g e 4 8
26. City of Atlanta has not provided any basis to justify the current water rates being charged to Sandy Springs citizens. 27. Due in part to City of Atlanta s refusal to review the challenged water rates, Fulton County and the affected municipalities, including City of Sandy Springs, have not been able to enter into a service delivery strategy, as required by O.C.G.A. 37-70-20 et seq. (the Service Delivery Strategy Act ). COUNT 1: VIOLATION OF THE OPEN RECORDS ACT 28. City of Sandy Springs incorporates paragraphs 1-27 as if fully set out herein. 29. Through its various failures to timely and adequately respond and produce requested public records, City of Atlanta has stalled, delayed, and obstructed City of Sandy Springs right to access public records in direct contravention of the Open Records Act, O.C.G.A. 50-18-70 et seq. 30. City of Atlanta has intentionally stalled, delayed, and obstructed City of Sandy Springs right to access public records in order to frustrate City of Sandy Springs efforts to challenge City of Atlanta s water fees being charged to City of Sandy Springs citizens. 31. City of Sandy Springs is entitled to enforcement of the Open Records Act as it pertains to City of Atlanta s withholding of responsive public records subject to O.C.G.A. 50-18-73(a). P a g e 5 8
Specifically, City of Sandy Springs is entitled to a court order compelling City of Atlanta to produce all other documents within its possession falling within the scope of the three requests. 32. With respect to the records that City of Atlanta claims are exempt due to privilege, City of Sandy Springs is entitled to a court determination by an in camera examination whether such records were properly withheld subject to O.C.G.A. 50-18-73(a)(41) and (42). 33. City of Sandy Springs is entitled to assessment of the statutory penalties against City of Atlanta pursuant to O.C.G.A. 50-18-74 for negligent violations of the Open Records Act. 34. City of Sandy Springs is entitled to an award of reasonable attorney s fees and other litigation costs pursuant to O.C.G.A. 50-18-73(b) because City of Atlanta has acted without substantial justification in its failure to comply with the Open Records Act. Due to City of Atlanta s non-compliance, City of Sandy Springs has been forced to incur unnecessary attorney s fees and costs in an attempt to gain access to the requested public records. 35. City of Sandy Springs is entitled to recovery of expenses of litigation generally because City of Atlanta has acted in bad faith and caused City of Sandy Springs unnecessary trouble and expense. COUNT II: VIOLATION OF THE SERVICE DELIVERY STRATEGY ACT 36. City of Sandy Springs incorporates paragraphs 1-27 as if fully set out herein. P a g e 6 8
37. City of Atlanta s assessment of excessive and arbitrary water fees to its customers located in Sandy Springs violates the Service Delivery Strategy Act. 38. City of Atlanta s refusal to review and revise its water fees assessed to its customers located in Sandy Springs violates the Service Delivery Strategy Act. 39. Pursuant to O.C.G.A. 36-70-28(c), City of Sandy Springs is entitled to a court order compelling the parties to utilize the alternative dispute resolution procedures to address the water services dispute in accordance with the procedure set forth in O.C.G.A. 36-70-25.1(d). 40. City of Sandy Springs is entitled for this petition for mandatory mediation to be assigned to a judge who is not a judge of the circuit or to a senior judge who resides in another circuit pursuant to O.C.G.A. 36-70-25.1(d)(1)(A). 41. City of Sandy Springs is entitled to a court order from the assigned visiting or senior judge appointing a mediator and mandating that the mediation commence, proceed, and be completed in accordance with O.C.G.A. 36-70-25.1(d)(1)(C). 42. City of Sandy Springs is entitled to recovery of expenses of litigation generally because City of Atlanta has acted in bad faith and caused City of Sandy Springs unnecessary trouble and expense. P a g e 7 8
WHEREFORE, City of Sandy Springs respectfully asks this Court for the following relief: (a) (b) (c) (d) (e) (f) a court order compelling City of Atlanta requiring it to fully respond to City of Sandy Springs three outstanding Open Records Act requests in a specified timeframe; statutory penalties assessed against City of Atlanta for its violations of the Open Records Act pursuant to O.C.G.A. 50-18-74; general expenses of litigation including attorney s fees awarded to City of Sandy Springs; following a reasonable amount of time after receipt of the outstanding records, a court order compelling the parties to utilize the alternative dispute resolution procedures to address the water services dispute in accordance with the procedure set forth in O.C.G.A. 36-70-25.1(d); the assignment of this petition for mandatory mediation to a judge who is not a judge of the circuit or to a senior judge who resides in another circuit pursuant to O.C.G.A. 36-70-25.1(d)(1)(A); and a court order from the assigned visiting or senior judge appointing a mediator and mandating that the mediation commence, proceed, and be completed in accordance with O.C.G.A. 36-70-25.1(d)(1)(C). Respectfully submitted, FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway, Suite 1600 Atlanta, Georgia 30339-5948 (770) 951-7328 Daniel W. Lee Georgia Bar No. 443093 dlee@fmglaw.com Wendell K. Willard Georgia Bar No. 760300 wwillard@fmglaw.com Sara E. Brochstein Georgia Bar No. 446366 sbrochstein@fmglaw.com Attorneys for City of Sandy Springs, GA P a g e 8 8