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One issue that has been difficult for Georgia reporters is gaining access to some law enforcement records. But a recent decision is a positive move for reporters. The state recently agreed to release felony conviction data in all jurisdictions. David Milliron, computer-assisted reporting editor for the Atlanta Journal-Constitution, requested the records on the heels of the Connecticut Supreme Court’s decision in The Hartford Courant Co. v. Freedom of Information Comm., and the Delaware Superior Court’s decision in The State of Delaware v. Gannett Co. Inc. Historically, Georgians could obtain a criminal history once they found a cooperating law enforcement agency to run a "Type P" (in-state felony conviction) report. The report cost up to $20 and the requestor had to provide the subject’s name, birth date, Social Security number, gender and race. GBI had cited O.C.G.A 35-3-34(d.2) in previously withholding the information.

A coalition of Georgia media and law enforcement organizations has produced an open records guide for the state’s law enforcement officers. The Georgia First Amendment Foundation and eight other media and law enforcement groups worked together to produce the "Georgia Law Enforcement and the Open Records Act: A Law Enforcement Officer’s Guide to Open Records in Georgia." The 40-page manual purports to help police officers navigate Georgia’s open records laws. In an introduction to the manual, Georgia Attorney General Thurbert Baker said it is critical that law enforcement officers be "as well informed as possible regarding the laws governing the access" that the public has to government information. "Open government is not merely a good way for government to operate, it is the only way for it to operate efficiently," he said.

The law. The Open Records Act was amended in 1992 to include computer records. The law defines public records as "all documents, . . . tapes, photographs, computer based or generated information, or similar material." Ga. Code Ann. § 50-18-70(a).

"Public record" also means items received or maintained by a private person or entity on behalf of a public office or agency that are not otherwise subject to protection from disclosure. Agencies cannot put information in the hands of a private person to avoid disclosure.

Cases & opinions. Before the open records law was amended to specifically include computer-generated information, the state supreme court did not question the application of the statute to computer printouts that were not otherwise exempt from disclosure. Doe v. Sears, 263 S.E.2d 119 (Ga. 1980), cert. denied, 446 U.S. 979 (1979).

The government does not have to create programs to provide access to computerized information by personal computer modems absent legislation requiring the access. Jersawitz v. Hicks, 448 S.E.2d 552 (Ga. 1994). The supreme court unanimously affirmed a trial court’s denial of plaintiff’s request for on-line computer access to the Fulton County real estate deed records: "While we are mindful that the prevalence of computers in homes, offices and schools may make on-line access to computerized public records desirable, requiring that means of access must be addressed by the General Assembly."

A lower court decision implies that an agency must sell a computer tape to any requester if it is already providing that tape to another private entity or business. Price v. Fulton County Commission, 318 S.E.2d 153 (Ga. Ct. App. 1984). An agency must comply with a request for information that can be retrieved by a minimal computer search. However, there is a distinction between compiling computer-stored information and preparing a new program designed to retrieve facts in a substantially different format. An agency must determine on a case-by-case basis whether programming constitutes the creation of new material, which is not required by the open records law. Ga. Att’y Gen. Op. 89-32 (June 30, 1989).

Although not specifically mandated by the Act, government entities often comply with requests for customized searches of computer databases. The Georgia Supreme Court has held, however, that state agencies are not required to create new programs, to provide public access via personal computers, or otherwise to have a computer technician create a computer program to compile data according to criteria conceived by the citizen. Schulten, Ward & Turner, LLP v. Fulton-DeKalb Hosp. Auth., 272 Ga. 725, 535 S.E.2d 243 (2000) (finding that hospital authority had no duty to search for and compile new document from its existing computerized records); Jersawitz v. Hicks, 264 Ga. 553, 448 S.E.2d 352 (1994) (finding Act applied to real estate database but refusing to require accessibility by modem).

Fees. An agency may charge the "actual cost of a computer disk or tape" when requested information is maintained by computer. Ga. Code Ann. § 50- 18-71(f). The custodian may charge for time that the custodian supervises the work. However, 15 minutes of search time is free. § 50- 18-71(d). An agency is required to "utilize the most economical means available for providing copies of public records." § 50-18-71(e). An agency may develop reasonable rules to recover "direct administrative costs for search and retrieval." Ga. Op. Att’y Gen. 89-32 (June 30, 1989); Ga. Op. Att’y Gen. 90-5 (Feb. 8, 1990). The Georgia Crime Information Center may charge a fee for access to its computerized records sufficient to allow it to recover the direct and indirect costs of dissemination. § 35-3-34(a)(3). However, no criminal records fee may exceed $20 per person whose criminal history record is sought and a "grandfather clause" exists allowing those authorized to receive records prior to 1995 to receive records free of charge. § 35-3-34(d.3). The superior court clerk is authorized to sell court records for a profit. § 15-6-96. However, the sale price of records in public databases may only reflect the reasonable cost of retrieval plus the cost of the computer disk or device used to store the record and, after the first quarter hour of work, only the hourly wage of the lowest paid full-time employee capable of overseeing or performing transfer. Powell v. VonCanon, 467 S.E.2d 193 (Ga. Ct. App. 1996).

Software. The statute does not apply to "any computer program or computer software used or maintained in the course of operation of a public office or agency." § 50-18-72(f)(2).

E-mail. E-mail documents are not treated differently than written correspondence. Because the Act by its terms applies to both "computer based or generated information" and to "letters," e-mail correspondence is subject to the Act. Ga. Code Ann. § 50-18-70 (a).

Resources. Georgia First Amendment Foundation