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Georgia

Open Government Guide

Author

Peter C. Canfield[1]
Jones Day
1420 Peachtree Street, N.E.
Suite 800
Atlanta, GA 30309-3053
Tel: (404) 581-8956
pcanfield@jonesday.com

[1] The views reflected in this compendium are personal to its author and do not necessarily represent those of Jones Day.

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Foreword

Georgia courts have long recognized “the strong public policy of this state in favor of open government.”  Richmond Cnty. Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 20, 311 S.E.2d 806, 808 (1984).  The policy is expressed in the state’s two principal open government statutes—the Georgia Open Meetings Act, O.C.G.A. § 50-14-1, et seq., and the Georgia Open Records Act, O.C.G.A. § 50-18-70, et seq.  As famously noted by former Georgia congressman, chief justice and Profiles in Courage honoree Charles Weltner, the policy is also underpinned by the Georgia Constitution:

Over the past decade, as I see it, our court has breathed life into some old words that have lain dormant within our Constitution for most of their century-old existence. The words are:

Public officers are the trustees and servants of the people and are at all times amenable to them.

We have established that this is no empty phrase, but an obligation that is enforceable in a court of law. Public men and women, above all others, must act in good faith. Neither facile excuse nor clever dissimulation can serve in the stead of duty — faithfully performed. Because public men and women are amenable "at all times" to the people, they must conduct the public's business out in the open.

Excerpt from the final opinion of Hon. Charles L. Weltner, Chief Justice, Georgia Supreme Court, attached to Davis v. City of Macon, 262 Ga. 407 (1992) (citations and footnotes omitted). Chief Justice Weltner was suffering from terminal cancer at the time he wrote the opinion, which began "[t]his is the last appeal in which I will participate as a member of the Supreme Court of Georgia." He passed away shortly thereafter.

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Open Records

Georgia’s Open Records Act was first enacted on Feb. 27, 1959, several years before the passage of the federal Freedom of Information Act.  The Act is now codified at O.C.G.A. § 50-18-70, et seq., and last underwent substantial revision in 2012.

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I. Statute

Consistent with the state’s strong public policy in favor of open government, the Act provides at the outset that it “shall be broadly construed to allow the inspection of governmental records.”  O.C.G.A. § 50-18-70(a).  Echoing prior court decisions, the Georgia legislature expressly found and declared in its 2012 revision to the statute “that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.”  Id.  Further, “there is a strong presumption that public records should be made available for public inspection without delay.”  Id.

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A. Who can request records?

Any person, firm, corporation or other entity may request records under the statute and sue to enforce compliance with its provisions.  O.C.G.A. § 50-18-73(a).

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1. Status of requester

The right to access public records under the Georgia Open Records Act is a “public right of the People as a whole.”  Deal v. Coleman, 294 Ga. 170, 184, 751 S.E.2d 337, 349 (2013).  Accordingly, what is relevant to proceedings under the Act is whether the records are “public” not the identity of the requester.  No person requesting inspection need have, assert or prove any special personal interest in the requested records.  Id.; Northside Realty Ass'n Inc. v. Community Relations Comm'n, 240 Ga. 432, 434, 241 S.E.2d 189 (1978). There is "no reason to distinguish [a death row inmate's] (or any other person's) right of access from news organizations' right of access." Parker v. Lee, 259 Ga. 195, 199, 378 S.E.2d 677 (1989).

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2. Purpose of request

The purpose for which public records are requested is irrelevant.  See, e.g., Atchison v. Hospital Authority, 245 Ga. 494, 495, 265 S.E.2d 801, 802 (1980) (requester not disqualified because he may intend to share requested records with others).  See generally Office of the Attorney General, Georgia’s Sunshine Laws (2014) at 4 (“It is irrelevant what the purpose of a particular request is.”) (available at http://gfaf.org/files/2014/02/GeorgiasSunshineLaws2014WebEdition.pdf).  There are certain kinds of public records for which access is restricted to certain requesters or only for certain purposes but such restrictions are rare and explicitly delineated in the Act, see, e.g., O.C.G.A. § 50-18-72(a)(5) (limiting access to motor vehicle accident reports), § 50-18-72(a)(20) (limiting access to social security numbers, etc.), or elsewhere in the Georgia code, see, e.g., § 35-1-18 (limiting access to booking photographs); § 45-16-27(e) (limiting access to certain crime scene photos, etc.).

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3. Use of records

In 1993, the Georgia General Assembly repealed a former provision of the Act that permitted agencies to deny requests sought for commercial solicitation purposes. Except in the rare case where access is statutorily conditioned upon written acceptance of restrictions on subsequent use, see, e.g., O.C.G.A. § 35-1-18 (limiting access to booking photographs); § 50-18-72(a)(20) (conditioning certain press access to social security numbers), Georgia law places no restrictions on the subsequent use of records obtained under the Act.

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4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

Records of all state and local public agencies—and all private persons or entities operating for or on behalf of such agencies—are subject to the Act.

The act defines agency to include:

  • Every state department, agency, board, bureau, office, commission, public corporation, and authority
  • Every county, municipal corporation, school district, or other political subdivision of this state
  • Every department, agency, board, bureau, office, commission, authority, or similar body of each such county, municipal corporation, or other political subdivision of the state
  • Every city, county, regional, or other authority established pursuant to the laws of this state
  • Any association, corporation, or other similar organization that has a membership or ownership body composed primarily of counties, municipal corporations, or school districts of this state, their officers, or any combination thereof and derives more than 33 1/3 percent of its general operating budget from payments from such political subdivisions; and
  • Certain nonprofit organizations to which there is a direct allocation of tax funds made by the governing body of any agency as defined in this paragraph which constitutes more than 33 1/3 percent of the funds from all sources of such organization.

O.C.G.A. § 50-18-70(b)(1) (incorporating by reference Open Meetings Act definition set forth at § 50-14-1).

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1. Executive branch

The act applies to all executive branch agencies.  Some Georgia governors have taken the position that the governor’s office itself is not legally subject to the Act but have nevertheless complied with its provisions.

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2. Legislative bodies

The Open Records Act specifically exempts from its disclosure requirements records and work product relating to communications between the Office of Legislative Counsel and members of the General Assembly, the Lieutenant Governor and persons acting on their behalf, O.C.G.A. § 50-18-75, as well as certain records related to the provision of staff services to individual members of the General Assembly by the Legislative and Congressional Reapportionment Office, the Senate Research Office and the House Research Office, § 50-18-72(a)(12).

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3. Courts

Records of judicial proceedings are generally not considered subject to the Act but are otherwise available to the public. Fathers Are Parents Too Inc. v. Hunstein, 202 Ga. App. 716, 415 S.E.2d 322 (1992) (Act does not apply to the judicial branch of government); see also Atlanta Journal and Constitution v. Long, 258 Ga. 410, 369 S.E.2d 755 (1988) (civil case) (there is a "presumption that the public will have access to all court records," which may be overridden only "in cases of clear necessity"); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982) (criminal case). However, the Act provides a specific procedure for access to trial exhibits, conditioning inspection of such exhibits on approval of the judge assigned to the case. In the event such inspection is not approved, a photograph, photocopy or other reproduction must be provided. O.C.G.A. § 50-18-72(c).

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4. Nongovernmental bodies

Records of private persons or entities performing a service or function for or on behalf of a state or local public agency are subject to the Act.  O.C.G.A. § 50-18-70(b)(2).  See, e.g., Smith v. Northside Hospital, 807 S.E.2d 909 (Ga. 2017) (records of privately-restructured public hospital authority health systems are subject to the Act); Central Atlanta Progress v. Baker, 278 Ga. App. 733, 737-40, 629 S.E.2d 840, 843-45 (2006) (publicly-supported and publicly-received private bids for NFL Super Bowl and NASCAR Hall of Fame are public records); Northwest Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 340, 461 S.E.2d 297 (1995) (nonprofit hospitals operating as vehicles for public hospital authorities are subject to the Act regardless of the amount of funding they receive from the public); Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994) (requiring private company that transported students under a contract with the city school system to reveal personnel records of school bus drivers); Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 430 S.E.2d 89 (1993) (records of private corporations associated with hospital authority are public records); Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993) (records of the University of Georgia Student Organization Court subject to the Act); Cremins v. Atlanta Journal and Constitution, 261 Ga. 496, 405 S.E.2d 675 (1991) (records reflecting the athletically related "outside" income of public university athletic coaches are public records even if the records are not on file with and have never been reviewed by university officials); Dooley v. Davidson, 260 Ga. 577, 397 S.E.2d 922 (1990) (same); Macon Tele. Publishing Co. v. Board of Regents, 256 Ga. 443 (1986) (records showing the assets, liabilities, income and expenses of the private University of Georgia Athletic Association are public records).

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5. Multi-state or regional bodies

Records of multi-state or regional bodies are not specifically addressed in the Act or its case law but would be subject to the Act’s provisions to the extent prepared, maintained or received by a Georgia agency.  O.C.G.A. § 50-18-70(b)(2).

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6. Advisory boards and commissions, quasi-governmental entities

Records of advisory boards and commissions and quasi-governmental entities that are prepared, maintained or received in the performance of a service or function by or for or on behalf of a Georgia agency are subject to the Act.  O.C.G.A. § 50-18-70(b)(2).  Smith v. Northside Hospital, 807 S.E.2d 909 (Ga. 2017) (records of privately-restructured public hospital authority health systems are subject to the Act); Central Atlanta Progress v. Baker, 278 Ga. App. 733, 737-40, 629 S.E.2d 840, 843-45 (2006) (publicly-supported and publicly-received private bids for NFL Super Bowl and NASCAR Hall of Fame are public records); Northwest Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 340, 461 S.E.2d 297 (1995) (nonprofit hospitals operating as vehicles for public hospital authorities are subject to the Act regardless of the amount of funding they receive from the public); Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994) (requiring private company that transported students under a contract with the city school system to reveal personnel records of school bus drivers); Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 430 S.E.2d 89 (1993) (records of private corporations associated with hospital authority are public records); Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993) (records of the University of Georgia Student Organization Court subject to the Act); Cremins v. Atlanta Journal and Constitution, 261 Ga. 496, 405 S.E.2d 675 (1991) (records reflecting the athletically related "outside" income of public university athletic coaches are public records even if the records are not on file with and have never been reviewed by university officials); Dooley v. Davidson, 260 Ga. 577, 397 S.E.2d 922 (1990) (same); Macon Tele. Publishing Co. v. Board of Regents, 256 Ga. 443 (1986) (records showing the assets, liabilities, income and expenses of the private University of Georgia Athletic Association are public records).  See also 1985 Op. Att'y Gen. No. U85-42 (Advisory Committee on Area Planning and Development subject to Act).

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7. Others

The Act covers records transferred to private persons or entities by an agency for storage or future governmental use.  O.C.G.A. § 50-18-70(b)(1).

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C. What records are and are not subject to the act?

All records of state and local public agencies—and of all private persons and entities operating for or on behalf of such agencies—are subject to the Act unless specifically exempted from disclosure.  The exemptions set forth in the Act, together with any other exemption located elsewhere in the Code, “shall be interpreted narrowly to exclude only those portions of records addressed by such exception.”  O.C.G.A. § 50-18-70(a).  “It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.”  § 50-18-72(b).

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1. What kinds of records are covered?

All records “prepared and maintained or received” by a subject person, agency or entity are covered by the Act.  O.C.G.A. § 50-18-70(b)(2).

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2. What physical form of records are covered

The Act does not distinguish records on the basis of their physical form, but includes "all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material.”  O.C.G.A. § 50-18-70(b)(2).

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3. Are certain records available for inspection but not copying?

The Act requires that all public records be open for “personal inspection and copying.”  O.C.G.A. § 50-18-71(a).  But “an agency may, in its discretion, provide copies of a record in lieu of providing access to the record when portions of the record contain confidential information that must be redacted.”  § 50-18-71(b)(1)(B).  In addition, original trial exhibits “shall not be open to public inspection without approval of the judge assigned to the case.”  § 50-18-72(c)(1).

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4. Telephone call logs

The Act does not exempt telephone call logs.  See generally Dortch v. Atlanta Journal, 261 Ga. 350, 405 S.E.2d 43 (1991) (requiring disclosure of cellular telephone bills).

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5. Electronic records (e.g., databases, metadata)

The Act specifically defines public record to include "computer based or generated information,” “data” and “data fields.”  O.C.G.A. § 50-18-70(b)(2).

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a. Can the requester choose a format for receiving records?

Under the Act, “[a] requester may request that electronic records, data, or data fields be produced in the format in which such data or electronic records are kept by the agency, or in a standard export format such as a flat file electronic American Standard Code for Information Interchange (ASCII) format, if the agency's existing computer programs support such an export format.”  O.C.G.A. § 50-18-71(f).  “In such instance, the data or electronic records shall be downloaded in such format onto suitable electronic media by the agency.”  Id.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

The Act does not require agencies “to prepare new reports, summaries, or compilations not in existence at the time of the request.”  O.C.G.A. § 50-18-71(j).  But an agency is not permitted to refuse to produce “electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency's computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data.”  § 50-18-71(f).

If the request is for e-mail that the custodian no longer maintains on its system but would have to extract from backup tapes using a laborious compilation process, the information sought is not an existing public record, and non-disclosure thereof did not violate the Act.  Griffin Indus., Inc. v. Georgia Dep't of Agric., 313 Ga. App. 69, 74, 720 S.E.2d 212, 216 (2011).

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c. Does the existence of information in electronic format affect its openness?

The Act specifically provides that “an agency's use of electronic record-keeping systems must not erode the public's right of access to records.”  O.C.G.A. § 50-18-71(f).

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d. Online dissemination

The Act requires online dissemination of certain records.  See, e.g., O.C.G.A. § 50-18-72(a)(46) (requiring the posting of certain economic development records online no later than five business days after state funds are committed).  In addition, the Act permits agencies, in lieu of providing separate printouts or copies of records or data, to provide access through a website accessible to the public.  But “if an agency receives a request for data fields, an agency shall not refuse to provide the responsive data on the grounds that the data is available in whole or in its constituent parts through a website if the requester seeks the data in the electronic format in which it is kept.”  § 50-18-71(h).  In addition, “if an agency contracts with a private vendor to collect or maintain public records, the agency shall ensure that the arrangement does not limit public access to those records and that the vendor does not impede public record access and method of delivery.”  Id.

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

Computer programs and computer software are exempted from disclosure under the Act.  O.C.G.A. § 50-18-72(a)(44).

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Act permits an agency to impose “a reasonable charge for the search, retrieval, redaction, and production or copying costs for the production of records,” utilizing “the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents.” O.C.G.A. § 50-18-71(c)(1) (emphasis added).  The Act does not override fees specifically authorized or prescribed by law for access to or copies of certain kinds of records—e.g., certified records—but in all other instances the Act sets parameters for what is reasonable with respect to charges for search, retrieval, redaction and production on the one hand and for copies of the records, if copying is requested, on the other.  Id.

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2. Particular fee specifications or provisions

For the search, retrieval, redaction and production of records requested under the Act, the Act requires that any charge “not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.”  O.C.G.A. § 50-18-71(c)(1).

For the copying of records requested under the Act, the Act allows a requester to avoid agency copying charges altogether by making “photographic copies or other electronic reproductions of the records using suitable portable devices brought to the place of inspection.”  § 50-18-71(b)(1)(b).  For agency provided copies, the Act permits an agency to impose an additional fee “not to exceed 10¢ per page for letter or legal size documents or, in the case of other documents, the actual cost of producing the copy.”  § 50-18-71(c)(2).

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3. Provisions for fee waivers

The Act neither requires nor prohibits waiver of search or copying fees.

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4. Requirements or prohibitions regarding advance payment

In any case in which an agency intends to seek costs in excess of $25 for responding to a request, the agency is required to notify the requester and provide an estimate within a reasonable period of time, not to exceed three business days.  Unless the request made clear that the requester was willing to pay more than the estimated amount, the agency is entitled to defer search and retrieval of the requested records until the requester agrees to pay.  O.C.G.A. § 50-18-71(d).

If a requester agrees to pay the agency’s estimated costs of production and fails to do so, and the agency then incurs the costs, the agency is authorized to “collect such charges in any manner authorized by law for the collection of taxes, fees, or assessments by such agency.”  § 50-18-71(c)(3).  The agency may also “require prepayment for compliance with all future requests for production of records from that person until the costs for the prior production of records have been paid or the dispute regarding payment resolved.”  § 50-18-71(d).

In any case in which the estimated costs of production exceed $500, the agency is entitled to require prepayment.  Id.

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5. Have agencies imposed prohibitive fees to discourage requesters?

When challenged, agency attempts to impose prohibitive fees have been struck down by the courts.  For example, in Trammell v. Martin, 200 Ga. App. 435, 408 S.E.2d 477 (1991), a Georgia county government attempted to bill an individual citizen almost $2,300 for copying fees and $90 an hour for legal review of the documents.  The court held that the requester may not be required to pay for legal review and ordered that the copies be billed at the cost of what would have been the most economical method of copying.  See also McFrugal Rental v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992) (fees permitted only for copies of records or if request requires "action by the custodian that involves an unusual administrative cost or burden").

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6. Fees for electronic records

E. Who enforces the Act?

The superior courts of the state have jurisdiction to entertain actions for enforcement of the Act and to assess civil and criminal penalties for noncompliance. O.C.G.A. § 50-18-73(a).  These actions may be brought by any person, firm, corporation or other entity, id., but only with respect to requests made in writing, § 50-18-71(b)(3).

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1. Attorney General's role

The Attorney General has specific statutory authority to bring actions against persons or agencies having custody of public records “as may be appropriate” to enforce compliance with the Act and to seek either civil or criminal penalties or both.  O.C.G.A. § 50-18-73(a).

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2. Availability of an ombudsman

Although the Act does not specifically provide for an ombudsman, the Office of the Attorney General has established an Open Government Mediation Program “to help citizens with questions or concerns about local government’s decisions to close meetings to the public or governmental responses to Open Records requests.”  Further information, including a contact name and phone number, is available at: http://law.ga.gov/open-government-mediation-program.

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3. Commission or agency enforcement

The Act does not assign enforcement or permit appeals to a specific agency or commission. Actions to enforce the provisions of the Act may be brought in superior court by "any person, firm, corporation, or other entity," or by the Attorney General.  O.C.G.A. § 50-18-73(a).

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F. Are there sanctions for noncompliance?

The Act provides that any person or entity deliberately violating the Act (1) by knowingly and willingly failing or refusing to provide access to records not subject to exemption, (2) by knowingly and willingly failing or refusing to provide access to such records within the Act’s time limits or (3) by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation.  O.C.G.A. § 50-18-74(a).

Alternatively, negligent violations of the Act may result in a civil penalty not to exceed $1,000.00 for the first violation.  Id.

A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed.  Id.

In addition, persons or entities that destroy records for the purpose of preventing their disclosure under the Act may be subject to prosecution under § 45-11-1.  Id.

Further, in any enforcement action in which the court determines that a person or entity acted without substantial justification in not complying with the Act (or in instituting the litigation), the court may assess reasonable attorney’s fees and other litigation costs.  O.C.G.A. § 50-18-74(b).

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G. Record-holder obligations

The Georgia Constitution provides that “[p]ublic officers are the trustees and servants of the people and are at all times amenable to them” a provision now embodied in the Act, particularly at O.C.G.A. § 50-18-71, that Georgia’s chief justice famously called “no empty phrase, but an obligation that is enforceable in a court of law.” Davis v. City of Macon, 262 Ga. 407 (1992) (Weltner, C.J., concurring).

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1. Search obligations

2. Proactive disclosure requirements

The Act has certain proactive disclosure requirements.  For example, the Act requires that any computerized index of county real estate deed records must be printed for purposes of public inspection no less than every 30 days.  O.C.G.A. § 50-18-71(i).  The Act also requires the Department of Economic Development to post on its website notice of certain economic development projects once secured by a binding commitment and the department has committed the use of certain state funds.  § 50-18-72(a)(46).

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3. Records retention requirements

The Act requires that agencies maintain records to the extent and in the manner required by the state’s records retention statute.  O.C.G.A. § 50-18-71(a).  See § 50-18-90, et seq.

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4. Provisions for broad, vague, or burdensome requests

In Georgia, all records prepared and maintained or received in the operation of a public office or agency—or by private persons or entities operating for or on behalf of such agencies—are presumptively open for public inspection and copying.  "The underlying implication" of the Act "is that all records of all state, county and municipal authorities are open to public inspection unless closed by a specific exception." Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119 (1980), cert. denied, 446 U.S. 979 (1980).

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A. Exemptions in the open records statute

The Act’s statutory exemptions, now several score in total, have grown in the number over the years and were codified in 2012 at O.C.G.A. § 50-18-72(a).

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1. Character of exemptions

“The exceptions set forth in [the Act], together with any other exception located elsewhere in the Code, shall be interpreted narrowly to exclude only those portions of records addressed by such exception.”  O.C.G.A. § 50-18-70(a).  See § 50-18-72(b) (same); Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992) ("[A]ny purported statutory exemption from disclosure under the Open Records Act must be narrowly construed"); City of Brunswick v. Atlanta Journal and Constitution, 214 Ga. App. 150, 447 S.E.2d 41 (1994).

As is the case with all exemptions to the Act, the custodian bears the burden of proving the exemption's applicability. Brown v. Minter, 243 Ga. 397, 254 S.E.2d 326 (1979).  Conclusory and speculative allegations are insufficient.  Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984).

In order to effectively claim an exemption under the Act, the agency must provide the requester—generally within three business—“the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph.”  § 50-18-71(d).  “It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.”  § 50-18-72(b).  The claimed applicability of an exception cannot be raised for the first time on appeal.  Dortch v. Atlanta Journal and Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991).

Unless an exemption specifically mandates non-disclosure, see, e.g., Harris v. Cox Enterprises Inc., 256 Ga. 299, 301, 348 S.E.2d 448 (1986) ("The language of the statute mandates the maintenance of confidentiality of records required by the federal government to be kept confidential or to medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy."), the Act does not require official custodians to deny access to the records falling under the enumerated exemptions.  O.C.G.A. § 50-18-72(a); Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 815 S.E.2d 841 (2018) (holding that exemptions to the Open Records Act generally allow disclosure or non-disclosure and do not prohibit disclosure).

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2. Discussion of each exemption

Records specifically required by federal statute or regulation to be kept confidential.

O.C.G.A. § 50-18-72(a)(1) permits compliance with federal government non-disclosure statutes or rules. Non-disclosure is permitted, however, only of federal records in the hands of state agencies that are required by federal law to be kept confidential. See City of Atlanta v. Corey Entertainment Inc., 278 Ga. 474, 604 S.E.2d 140 (2004) (tax returns not exempt from disclosure where they relate to a "legitimate public inquiry" and do not involve an unauthorized invasion of privacy). There is no requirement "that a report generated by or used by the state for state purposes be exempted from disclosure merely because that report would be kept confidential if generated or used by the federal government for federal purposes." Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 479, 396 S.E.2d 488 (1990). Additionally, agencies subject to the Act may not evade its disclosure requirements by contracting with a federal agency unless the contract provision prohibiting disclosure is mandated by federal law or regulation. 2005 Ga. Att'y Gen. LEXIS 2 (2005).

Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.

Provision is made in O.C.G.A. § 50-18-72(a)(2) for the exclusion of private medical records from the Act. The invasion of personal privacy encompassed by this exemption is to be determined in accordance with the tort action of invasion of privacy. Board of Regents v. Atlanta Journal and Constitution, 259 Ga. 214, 378 S.E.2d 305 (1989). The right of privacy, which is protected under tort law, extends only to unnecessary public scrutiny. Therefore, the exemption "is not meant to exclude 'legitimate inquiry into the operation of a government institution and those employed by it.'" Dortch v. Atlanta Journal and Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991); see also City of Atlanta v. Corey Entertainment Inc., 278 Ga. 474, 604 S.E.2d 140 (2004) (financial records submitted to obtain special business certification were legitimate objects of public scrutiny); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (where requested report involved investigation into alleged improper conduct by employee of State Board of Pardons and Paroles, the public had a legitimate interest in the conduct that outweighed the employee's interest in non-disclosure); but cf. Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496 (1966) (elements essential to recovery for invasion of personal privacy include: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (c) the matter made public must be offensive to a reasonable person of ordinary sensibilities under the circumstances).

Applying these principles, Georgia courts have consistently rejected attempts to prevent disclosure of records on privacy grounds. For example, in Dortch, the Georgia Supreme Court held that "[e]ven if we were to hold that publication of unlisted telephone numbers [contained in cellular telephone bills of city employees paid by the city] involved disclosure of secret or private facts, we cannot say . . . that such disclosure would be so offensive or objectionable to a reasonable man as to constitute the tort of invasion of privacy." 261 Ga. at 352.

In Board of Regents, the Georgia Supreme Court, in holding that a public university's presidential search records must be disclosed, noted that "it would make for a strange rule, indeed, to hold that a person who applies for a public position — to serve the public and to be paid by the public — has the right to keep secret from the public the very existence of such an application." 259 Ga. at 217 n.6. See also Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994); City of St. Mary's v. Camden Newspapers, 20 Med. L. Rep. 1131 (Camden County. Super. Ct.), aff'd mem. (Ga. 1991) (complaint filed by city employee alleging harassment by city council member must be publicly disclosed); Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119 (1980) (records containing names and addresses of public housing tenants delinquent on their rent are public records and must be disclosed); Athens Observer v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980) (report commissioned by state university evaluating mathematical sciences program is public record and must be disclosed).

Confidential source, surveillance or investigation law enforcement records.

O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.

Pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies and mug shots.

The Act limits access to certain pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies.  O.C.G.A. § 50-18-72(a)(4).  The exemption, however, specifically provides that "initial police arrest reports and initial incident reports" are public records and must be disclosed. It further provides that “an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated.”   And it clarifies that the exception “shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.”  Finally, it permits the release of booking photographs—mug shots—only in accordance with certain statutory procedures designed to prohibit their use on websites that permit removal or deletion in return for payment of a fee.  See § 35-1-18.

“Under the ‘pending investigation’ exemption, a seemingly inactive investigation which has not yet resulted in a prosecution logically ‘remains undecided,’ and is therefore ‘pending,’ until it ‘is concluded and the file closed.’ Only at that point has an investigation, in the absence of any prosecution, reached a decision with a high level of finality, even though it could possibly be reopened thereafter.”  Evans v. Georgia Bureau of Investigation, 297 Ga. 318, 320, 773 S.E.2d 725, 728 (2015), quoting Unified Gov't v. Athens Newspapers, LLC, 284 Ga. 192, 195(1), 663 S.E.2d 248 (2008).

Motor vehicle accident reports.

In 1999, the General Assembly limited access to individual Uniform Motor Vehicle Accident reports to those parties named in the report or those that otherwise have a "need" for the report as defined by statute. O.C.G.A. § 50-18-72(a)(5). Among the parties with a "need" for accident reports are those "gathering information as a representative of a news media organization." § 50-18-72(a)(5)(I).

Jury list data.

The Act limits access to personal identifying information that is collected and used to create, compile and maintain certain master statewide and county jury lists.  O.C.G.A. § 50-18-72(a)(6).

Confidential evaluations of public officers and employees.

The Act permits non-disclosure of (1) confidential evaluations submitted to a governmental agency, prepared in connection with the appointment or hiring of a public officer or employee; or (2) examinations prepared by a governmental agency in connection with the appointment or hiring of a public officer or employee.  O.C.G.A. § 50-18-72(a)(7).

Material obtained in investigations relating to the suspension, firing or investigation of complaints against public officers or employees.

The Act permits agencies to withhold disclosure of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees but only “until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated.”  O.C.G.A. § 50-18-72(a)(8).  City of St. Mary's v. Camden Newspapers, 20 Med. L. Rep. 1131 (Camden County Super. Ct.), aff'd mem. (Ga. 1991) (city employee's written complaint alleging sexual harassment by city council member must be publicly disclosed under O.C.G.A. § 50-18-72(a)(5) after 10 days have passed); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (investigation into alleged improper conduct by employee of State Board of Pardons and Paroles had to be released after ten days had passed).

Real estate acquisition records.

The Act permits non-disclosure of "[r]eal estate appraisals, engineering or feasibility estimates, or other records made for or by the state or local agency relative to the acquisition of real property until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.”  O.C.G.A. § 50-18-72(a)(9).  Appraisals of property sought to be condemned are exempt from disclosure under the Act until litigation involving the condemnation has been completed. Black v. Georgia Dep't of Transp., 262 Ga. 342, 417 S.E.2d 655 (1992).

Pending, rejected or deferred sealed bids or proposals and cost estimates.

The Act permits non-disclosure of “pending, rejected, or deferred sealed bids or sealed proposals and detailed cost estimates related thereto until such time as the final award of the contract is made, the project is terminated or abandoned, or the agency in possession of the records takes a public vote regarding the sealed bid or sealed proposal, whichever comes first.”  O.C.G.A. § 50-18-72(a)(10).

Executive search records.

The Act permits an agency to withhold those portions of records which would identify persons applying for or under consideration for employment or appointment as executive head of an agency or of a unit of the state university system. O.C.G.A. § 50-18-72(a)(11). However, at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position of executive head of an agency or five business days prior to the meeting at which final action or vote is to be taken on the position of president of a unit of the University System of Georgia, all documents concerning as many as three persons under consideration whom the agency has determined to be the best qualified for the position shall be subject to inspection and copying.  Id.  Prior to the release of these documents, an agency may allow such a person to decline being considered further for the position rather than have documents pertaining to such person released.  Id.  In that event, the agency shall release the documents of the next most qualified person under consideration who does not decline the position.  Id.  If an agency has conducted its hiring or appointment process without conducting interviews or discussing or deliberating in executive session in a manner otherwise consistent with the Open Meetings Act, it shall not be required to delay final action on the position.  Id.  The agency shall not be required to release such records of other applicants or persons under consideration, except at the request of any such person.  Id.  Upon request, the hiring agency shall furnish the number of applicants and the composition of the list by such factors as race and sex.  Id.  The agency shall not be allowed to avoid the provisions of this paragraph by the employment of a private person or agency to assist with the search or application process.  Id.

General Assembly.

The Act exempts records related to the provision of staff services to individual members of the General Assembly by the Legislative and Congressional Reapportionment Office, the Senate Research Office, or the House Budget and Research Office. O.C.G.A. § 50-18-72(a)(12). However, this specific exemption does not apply to records related to the provision of staff services to committees or subcommittees, or to any records which are or have been previously publicly disclosed pursuant to the direction of an individual member of the General Assembly. Id.

Restricted library and archival records.

Records that are of historical research value that are granted to academic libraries, public libraries, or public archives can be restricted in accordance with the donor's request for a period of up to 75 years. O.C.G.A. § 50-18-72(a)(13). This exemption is inapplicable, however, to any records prepared in the course of the operation of state or local governments. Id.

Records of the Department of Natural Resources relating to historic properties.

Disclosure of any entry in the Department of Natural Resources inventory and register of historic properties can be restricted if its release might create a substantial risk of harm, theft, or destruction of the property. O.C.G.A. § 50-18-72(a)(14).

Records of individual farm water use.

Disclosure of records of farm water use by individual farms as determined by certain water-measuring devices can be restricted. O.C.G.A. § 50-18-72(a)(15). However, compilations of such records that do not reveal farm water use by individual farms are subject to disclosure.  Id.

Certain critical infrastructure agricultural or food system records.

The Act permits restriction of access to certain agricultural or food system records, data, or information that are considered by the Department of Agriculture to be a part of the critical infrastructure.  O.C.G.A. § 50-18-72(a)(16).

National animal identification system records.

The Act exempts from disclosure records, data, or information collected, recorded, or otherwise obtained that is deemed confidential by the Department of Agriculture for the purposes of the national animal identification system.  O.C.G.A. § 50-18-72(a)(17).

Rare species of plants and animals records.

Disclosure of records containing site specific information regarding the occurrence or the location of the natural habits of rare species of plants and animals can be restricted if their release would create a substantial risk of harm, theft, or destruction to the species or habitats of the area. O.C.G.A. § 50-18-72(a)(18). However, owners of private property upon which rare species occur or upon which natural habitats are located are entitled to such information. Id.

Neighborhood watch and public safety and alarm system records.

The Act exempts records that reveal certain identifying and other information developed, collected, or received by counties or municipalities in connection with neighborhood watch or public safety notification programs or relating to electronic security systems; provided, however, that initial police reports and initial incident reports shall remain subject to disclosure.  O.C.G.A. § 50-18-72(a)(19).

Records reflecting certain sensitive individual identifying information.

With a variety of exceptions, including to news media representatives willing to certify compliance with certain non-disclosure restrictions, the Act exempts an individual's Social Security number, mother's birth name, debit and credit card information, bank account information, financial data or information, insurance or medical information, etc. in all records. O.C.G.A. § 50-18-72(a)(20).

Records reflecting certain public employee sensitive individual identifying information.

The Act likewise restricts, without a news media exception, access to certain sensitive identifying information concerning public employees.  O.C.G.A. § 50-18-72(a)(21).

Records of the Department of Early Care and Learning containing sensitive identifying information.

The Act exempts certain records identifying children, parents and individuals who report violations.  O.C.G.A. § 50-18-72(a)(22).

Electronic signature information.

The Act exempts certain electronic signature information.  O.C.G.A. § 50-18-72(a)(23).

Records from carpooling or ridesharing.

The Act exempts records acquired by an agency for the purpose of implementing or assisting in the implementation of a carpooling program to the extent those records would reveal the name, home address, employment address, home telephone number, employment telephone number or hours of employment of any individual or would otherwise identify any individual who is participating, or who has expressed an interest in participating in any such program. O.C.G.A. § 50-18-72(a)(24).

Records related to homeland security.

The Act exempts records, the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the non-disclosure of which is necessary for the protection of life, safety, or public property. O.C.G.A. § 50-18-72(a)(25). This exemption is specifically limited to security plans and vulnerability assessment for certain structures; plans for protection against terrorist or other attacks, the effectiveness of which depends in part on a lack of general public knowledge of the details; documents related to the existence, nature, location, or function of security devices; any plan or other material which, if made public, could compromise security against sabotage, criminal, or terroristic acts; as well as training records. Id. In the event of a challenge to official nondisclosure of records under this exemption, the court may review the documents in question in camera and condition any disclosure upon such measures as the court finds necessary to protect against the endangerment of life, safety, or public property. Id.

Emergency system call records.

The Act permits access to public records of an emergency "911" system, except information that would reveal the name, address, or telephone number of a person placing a call to a public safety answering point if redaction of such information is necessary to protect the identity of a confidential source, to prevent disclosure of information that would endanger the life or safety of any persons, or to prevent disclosure of the existence of a confidential investigation. O.C.G.A. § 50-18-72(a)(26).

The Act also places restrictions on access to audio recordings of 911 calls that contain “the speech in distress or cries in extremis of a caller who died during the call or the speech or cries of a person who was a minor at the time of the call,” § 50-18-72(a)(26.1), and to “audio and video recordings from devices used by law enforcement officers in a place where there is a reasonable expectation of privacy when there is no pending investigation,” § 50-18-72(a)(26.2).

Athletic records identifying children under 12 years of age.

The Act exempts otherwise public records of athletic or recreational programs that include information identifying children 12 years of age or younger by name, address, telephone number, or emergency contact, unless such information has been redacted. O.C.G.A. § 50-18-72(a)(27).

State Road and Tollway Authority records.

The Act exempts records that would reveal the financial accounts or travel history of any §cc. Personal information concerning donors to the state’s public postsecondary educational institutions and associated foundations.

“Personal information concerning donors or potential donors” to “public postsecondary educational institutions in this state and associated foundations of such institutions” is exempt from the Act, provided “that the name of any donor and the amount of donation made by such donor shall be subject to disclosure if such donor or any entity in which such donor has a substantial interest transacts business with the public postsecondary educational institution to which the donation is made within three years of the date of such donation.”  O.C.G.A. § 50-18-72(a)(29).

MARTA records.

The Act exempts records that would reveal the financial accounts or travel history of any individual who is the purchaser of a travel card from a public transit system, including the Metropolitan Atlanta Rapid Transit Authority.  O.C.G.A. § 50-18-72(a)(30).

Building mapping information.

The Act exempts records building mapping information produced and maintained by statute for the use of first responders in disaster scenarios.  O.C.G.A. § 50-18-72(a)(31).

Child pornography evidence and investigatory materials.

The Act exempts evidence and investigatory materials that are evidence of alleged violations of child pornography statutes in the possession, custody, or control of law enforcement, prosecution, or regulatory agencies.  O.C.G.A. § 50-18-72(a)(32).

Public retirement benefit information expressly exempt from public inspection.

The Act exempts certain public retirement system information otherwise expressly exempt from public inspection.  O.C.G.A. § 50-18-72(a)(33), citing §§ 47-1-14, 47-7-127); § 50-18-72(a)(48), citing § 47-20-87.

Trade secrets and proprietary information.

The Act is not applicable to "[a]ny trade secrets obtained from a person or business entity that are required, regulation, bid, or request for proposal to be submitted to an agency.”  O.C.G.A. § 50-18-72(a)(34). An entity submitting records containing trade secrets that wishes to keep such records confidential is required to submit and attach to the records an affidavit affirmatively declaring that specific information in the records constitute trade secrets under Georgia law. If the entity attaches such an affidavit, before producing such records in response to a request under this article, the agency shall notify the entity of its intention to produce such records as set forth in this paragraph. If the agency makes a determination that the specifically identified information does not in fact constitute a trade secret, it shall notify the entity submitting the affidavit of its intent to disclose the information within ten days unless prohibited from doing so by an appropriate court order. In the event the entity wishes to prevent disclosure of the requested records, the entity may file an action in superior court to obtain an order that the requested records are trade secrets exempt from disclosure. The entity filing such action shall serve the requestor with a copy of its court filing. If the agency makes a determination that the specifically identified information does constitute a trade secret, the agency shall withhold the records, and the requester may file an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure.  Id.  See, e.g., Ga. Dept. of Natural Resources v. Theragenics Corp., 273 Ga. 724, 725, 545 S.E.2d 904 (2001) (a corporation had the right to enjoin a state agency from allowing a third-party competitor to review the agency's file on the corporation, which included some of the corporation's trade secrets, after the third party filed a request with the agency under the Open Records Act).

Conclusory assertions of trade secret status are insufficient to permit a trial court to enjoin public disclosure of an otherwise public record.  State Rd. & Tollway Auth. v. Elec. Transaction Consultants Corp., 306 Ga. App. 487, 490, 702 S.E.2d 486, 489 (2010).

Research records.

The Act exempts data, records or information of a proprietary nature produced or collected by or for faculty or staff of state institutions of higher learning, or other governmental agencies, in the conduct of, or as a result of, study or research on commercial, scientific, technical, or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where such data, records, or information has not been publicly released, published, copyrighted, or patented.  O.C.G.A. § 50-18-72(a)(35).

The Act further exempts any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of an institution of higher education or any public or private entity supporting or participating in the activities of an institution of higher education in the conduct of, or as a result of, study or research on medical, scientific, technical, scholarly, or artistic issues, whether sponsored by the institution alone or in conjunction with a governmental body or private entity, until such information is published, patented, otherwise publicly disseminated, or released to an agency whereupon the request must be made to the agency. O.C.G.A. § 50-18-72(a)(36). The exemption specifically includes information provided by participants in research, research notes and data, discoveries, research projects, methodologies, protocols, and creative works.  Id.

Buckley Amendment.

The Act exempts any record that would not be subject to disclosure, or the disclosure of which would jeopardize the receipt of federal funds, under the federal Family Educational Rights and Privacy Act aka the Buckley Amendment.  O.C.G.A. § 50-18-72(a)(37).

Educational records constituting a test that derives value from being unknown to the test taker.

The Act exempts, unless otherwise provided by law, records consisting of questions, scoring keys, and other materials constituting a test that derives value from being unknown to the test taker prior to administration which is to be administered by an agency, including, but not limited to, any public school, any unit of the Board of Regents of the University System of Georgia, any public technical school, the State Board of Education, the Office of Student Achievement, the Professional Standards Commission, or a local school system, if reasonable measures are taken by the owner of the test to protect security and confidentiality.  O.C.G.A. § 50-18-72(a)(38). However, the Act provides that the State Board of Education may establish procedures whereby a person may view, but not copy, such records if viewing will not, in the judgment of the board, affect the result of administration of such test. The Act further provides that the exemption shall not be interpreted by any court of law to include or otherwise exempt from inspection the records of any athletic association or other nonprofit entity promoting intercollegiate athletics.  Id.

Records disclosing sensitive information of research participants.

The Act exempts from public disclosure records disclosing the identity or personally identifiable information of any person participating in research on commercial, scientific, technical, medical, scholarly, or artistic issues conducted by the Department of Community Health, the Department of Public Health, the Department of Behavioral Health and Developmental Disabilities, or a state institution of higher education whether sponsored by the institution alone or in conjunction with a governmental body or private entity.  O.C.G.A. § 50-18-72(a)(39).

Weapons carry licenses.

The Act exempts from public disclosure any permanent records maintained by a judge of the probate court relating to weapons carry licenses, or pursuant to any other requirement for maintaining records relative to the possession of firearms.  O.C.G.A. § 50-18-72(a)(40).

Attorney client privileged and work product records.

The Act requires disclosure of the factual findings of an attorney conducting an internal investigation on behalf of an agency unless the investigation relates to a judicial action brought or to be brought by or against the agency, or the agency is a hospital authority attempting to ensure compliance with state or federal law.  The Act otherwise generally exempts attorney work product and communications subject to the attorney-client privilege. O.C.G.A. § 50-18-72(a)(41) & (42).  A trial court property held that records concerning internal investigation of allegations that members of hospital authority's human resources department had engaged in sexual misconduct were not attorney work product and must be disclosed in response to a request under the Act.  Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601, 603, 667 S.E.2d 455, 458 (2008) (nothing that the Authority commenced the internal investigation not in response to any claim or threat of litigation, but because it received several anonymous complaints regarding inappropriate sexual activity).

Confidential tax information.

The Act exempts records containing tax matters or tax information that is confidential under state or federal law.  O.C.G.A. § 50-18-72(a)(43).

Computer programs and software.

The Act exempts records consisting of any computer program or computer software used or maintained in the course of the operation of a public office or agency.  O.C.G.A. § 50-18-72(a)(44).

Insurance rating information.

The Act exempts records pertaining to the rating plans, rating systems, underwriting rules, surveys, inspections, statistical plans, or similar proprietary information used to provide or administer liability insurance or self-insurance coverage to any agency.  O.C.G.A. § 50-18-72(a)(45).

Department of Economic Development project records.

The Act exempts records maintained by the Department of Economic Development pertaining to an economic development project until the project is secured by a “binding commitment” or the project has been terminated.  O.C.G.A. § 50-18-72(a)(46). The Act also exempts records related to any statutory “quick start” training program that would disclose such a project until a binding commitment has been secured.  § 50-18-72(a)(47). No later than five business days after the Department of Economic Development secures a binding commitment and the department has committed the use of state funds, the department must post on its website notice of the project and a copy of records documenting the commitment and its negotiation.  The department must also publish notice of the project and the participating parties in the legal organ of each county in which the economic development project is to be located. “Economic development project” for purposes of these exceptions means “a plan or proposal to locate a business, or to expand a business, that would involve an expenditure of more than $25 million by the business or the hiring of more than 50 employees.”  § 50-18-72(a)(46).

Child actor and performer labor investigation records.

The Act exempts records and information acquired by the Commissioner of Labor or the Department of Labor as part of any statutory investigation relating to minors employed as actors or performers.  O.C.G.A. § 50-18-72(a)(49), citing § 39-2-18.

Records held for or on behalf of superior court clerks.

The Act exempts records held by the Georgia Superior Court Clerks' Cooperative Authority or any other public or private entity for and on behalf of a clerk of superior court.  O.C.G.A. § 50-18-72(a)(50).

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B. Other statutory exclusions

The Act exempts records that "by law are specifically exempted from disclosure" even if the exemption is not contained in the Act itself. O.C.G.A. § 50-18-71(a). See, e.g., Emory Univ. Hosp. v. Sweeney, 220 Ga. App. 502, 469 S.E.2d 772 (1996) (Act does not require disclosure of medical peer review documents covered by O.C.G.A. § 31-7-143); Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995) (Act does not require disclosure of tax information covered by O.C.G.A. § 48-7-60(a)); Southeastern Legal Found. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991) (Act does not require disclosure of confidential "clinical records" covered by mental health statutes); Evans v. Belth, 193 Ga. App. 757, 388 S.E.2d 914 (1989) (Act does not require disclosure of records acquired by the Insurance Commissioner from the National Association of Insurance Commissioners pursuant to statute); Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987) (Act does not require disclosure of information gained through wiretaps when statutes prohibit public disclosure). However, such exclusions may not apply where the otherwise exempt information has been incorporated into an investigatory case file or has been ordered disclosed by a court. See Napper, 257 Ga. at 156.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Under the Act, agencies are not required to disclose records "which by order of a court of this state . . . are specifically exempted from disclosure." O.C.G.A. § 50-18-71(a). Initially, this language was interpreted as affording courts broad discretion in particular cases to craft judicial exemptions to the Act by balancing the perceived public interest in non-disclosure against the public interest in disclosure. See, e.g., Northside Realty Ass'n v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978); Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976). Since 1990, however, the Georgia Supreme Court has expressly and repeatedly held that such a balancing test may be employed only for the purpose of determining whether disclosure of the records would result in a tortious invasion of privacy. Courts are simply not empowered to craft exemptions not contained in the Act. See, e.g., Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992); Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990); Board of Regents v. Atlanta Journal and Constitution, 259 Ga. 214, 378 S.E.2d 305 (1989); Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994) (privacy rights of private transportation company and school bus drivers did not outweigh the public interest in disclosure of personal records); see also Dortch v. Atlanta Journal and Constitution, 261 Ga. 350, 405 S.E.2d 43 (1991) (disclosure of employee cell phone records insufficiently offensive or objectionable to outweigh the public's interest in the operation of the government).

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

The Act does not exempt autopsy or coroners’ reports. See Kilgore v. R. W. Page Corp., 259 Ga. 556, 385 S.E.2d 406 (1989) (Act applies to the office of coroner). However, the code otherwise specifically forbids the release of any autopsy photographs or images by hospitals without written permission of the next of kin. O.C.G.A. § 45-16-27(d). But in closed criminal investigations a superior court may find that the public interest in disclosure outweighs any privacy interest asserted by the deceased’s next of kin and permit such photographs to be disclosed.  Id.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Administrative enforcement records are subject to the Act’s disclosure requirements unless specifically unless specially exempted by statute.  Initial incident reports are subject to immediate disclosure.  O.C.G.A. § 50-18-72(a)(4).  Pending investigation records are exempted from disclosure.  Id.  Records consisting of material obtained in investigations of complaints against public officers or employees are exempt from disclosure until ten days after being presented to the agency or an officer for action or the investigation is otherwise concluded or terminated.  § 50-18-72(a)(8).  Investigative records are otherwise exempt from disclosure until all direct litigation regarding the investigation has become final or otherwise terminated.  § 50-18-72(a)(4).

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C. Bank records

The Act exempts from disclosure to the general public an individual's "bank account information,” O.C.G.A. § 50-18-72(a)(20), and the “bank account information” of public employees, § 50-18-72(a)(21).  The Act also exempts the “bank account information” but not the names of public transit card holders. § 50-18-72(a)(30).

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D. Budgets

Budgets are not exempt from the Act’s disclosure requirements.

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E. Business records, financial data, trade secrets

The Act does not exempt business records or financial data and public agencies are not entitled to withhold records that they consider their “trade secrets.”  Ga. Op. Att’y Gen. 94-15 (1994); see, e.g., Hardaway Co. v. Rives, 262 Ga. 631 (1992) (refusing to protect Department of Transportation bid evaluation methodologies and formulae).  "Trade secrets" are exempt from disclosure under the Act only if obtained by an agency from a person or entity required by law, regulation, bid, or request for proposal to submit them and then only if accompanied at the time of submission by an affidavit affirmatively declaring and identifying the specific information claimed to constitute trade secrets. O.C.G.A. § 50-18-72(a)(34).  If the agency makes a determination that the specifically identified information does not in fact constitute a trade secret, it shall notify the entity submitting the affidavit of its intent to disclose the information within ten days unless prohibited from doing so by an appropriate court order. In the event the entity wishes to prevent disclosure of the requested records, the entity may file an action in superior court to obtain an order that the requested records are trade secrets exempt from disclosure. The entity filing such action shall serve the requestor with a copy of its court filing. If the agency makes a determination that the specifically identified information does constitute a trade secret, the agency shall withhold the records, and the requester may file an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure.  Id.  See, e.g., Ga. Dept. of Natural Resources v. Theragenics Corp., 273 Ga. 724, 725, 545 S.E.2d 904 (2001) (a corporation had the right to enjoin a state agency from allowing a third-party competitor to review the agency's file on the corporation, which included some of the corporation's trade secrets, after the third party filed a request with the agency under the Open Records Act).

Conclusory assertions of trade secret status are insufficient to permit a trial court to enjoin public disclosure of an otherwise public record.  State Rd. & Tollway Auth. v. Elec. Transaction Consultants Corp., 306 Ga. App. 487, 490, 702 S.E.2d 486, 489 (2010).

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F. Contracts, proposals and bids

The Act does not exempt contracts, proposals or bids.  However, sealed bids or sealed proposals and detailed cost estimates related thereto may be withheld from disclosure until such time as the final award of the contract is made, the project is terminated or abandoned, or the agency in possession of the records takes a public vote regarding the sealed bid or sealed proposal, whichever comes first.  O.C.G.A. § 50-18-72(a)(10).

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G. Collective bargaining records

The Act does not exempt collective bargaining records.

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H. Economic development records

The Act exempts records maintained by the Department of Economic Development pertaining to an economic development project until the project is secured by a “binding commitment” or the project has been terminated.  O.C.G.A. § 50-18-72(a)(46). The Act also exempts records related to any statutory “quick start” training program that would disclose such a project until a binding commitment has been secured.  § 50-18-72(a)(47). No later than five business days after the Department of Economic Development secures a binding commitment and the department has committed the use of state funds, the department must post on its website notice of the project and a copy of records documenting the commitment and its negotiation.  The department must also publish notice of the project and the participating parties in the legal organ of each county in which the economic development project is to be located.   “Economic development project” for purposes of these exceptions means “a plan or proposal to locate a business, or to expand a business, that would involve an expenditure of more than $25 million by the business or the hiring of more than 50 employees.”  § 50-18-72(a)(46).

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I. Election Records

The Act does not exempt election records. See Rentz v. City of Moultrie, 231 Ga. 579, 203 S.E.2d 216 (1974) (special election petition is public record).  Voter registration lists are subject to the Act’s disclosure requirements but certain personal information is exempt from disclosure.  O.C.G.A. § 21-2-225, § 21-2-225.1. Voting results are subject to the Act’s disclosure requirements but particular types of election data may be exempt.  See Smith v. DeKalb County, 288 Ga. App. 574, 654 S.E.2d 469 (2007) (affirming injunction prohibiting disclosure of election CDs).

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J. Emergency Medical Services records

The Act exempts medical records but that exemption does not justify non-disclosure of records relating to a public hospital’s ambulance service.  Griffin-Spalding County Hospital Authority v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978) (permitting any medical history information in such records to be redacted).

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K. Gun permits

The Act exempts from public disclosure records maintained by a judge of the probate court relating to weapons carry licenses, or pursuant to any other requirement for maintaining records relative to the possession of firearms.  O.C.G.A. 50-18-72(a)(40).

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L. Homeland security and anti-terrorism measures

The Act exempts records, the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the non-disclosure of which is necessary for the protection of life, safety, or public property. O.C.G.A. § 50-18-72(a)(25). This exemption is specifically limited to security plans and vulnerability assessment for certain structures; plans for protection against terrorist or other attacks, the effectiveness of which depends in part on a lack of general public knowledge of the details; documents related to the existence, nature, location, or function of security devices; any plan or other material which, if made public, could compromise security against sabotage, criminal, or terroristic acts; as well as training records. Id. In the event of a challenge to official nondisclosure of records under this exemption, the court may review the documents in question in camera and condition any disclosure upon such measures as the court finds necessary to protect against the endangerment of life, safety, or public property. Id.

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M. Hospital reports

Authority-owned health systems are subject to the Act, whether operated by the authority proper or a private entity created by the authority to operate the system on the authority’s behalf. O.C.G.A. § 50-18-70(b)(1) (incorporating § 50-14-1 definition of agency).  See, e.g., Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984) (records identifying the names, salaries, and job titles of hospital authority employees are public records and must be disclosed); Atchison v. Hosp. Auth., 245 Ga. 494, 265 S.E.2d 801 (1980) (business telephone records of hospital authority are public records and must be disclosed); Northwest Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 461 S.E.2d 297 (1995) (private company that operates public hospital is a "vehicle" of hospital authority and thus subject to Act); Smith v. Northside Hospital, 807 S.E.2d 909 (Ga. 2017) (records of privately-restructured public hospital authority health systems are subject to Act).  Under O.C.G.A. § 31-7-75.2 a hospital authority or private entity created to operate it is not required "to disclose or make public any potentially commercial valuable plan, proposal, or strategy that may be of competitive advantage in the operation of the corporation or authority or its medical facilities and which has not been made public." This exemption terminates, however, once the plan or proposal is "either approved or rejected." Id.

Private hospital accreditation reports are subject to disclosure under the Act if submitted to a state agency for licensing purposes. Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990).

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N. Personnel records

The Act does not exempt personnel records. Goddard v. City of Albany, 285 Ga. 882, 886, 684 S.E.2d 635, 640 (2009) (personnel records are not entitled to any blanket exemption from Georgia's Open Records Act); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (same); see also Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994).

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1. Salary

Salary information is subject to the Act’s disclosure requirements.

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2. Disciplinary records

Disciplinary records are subject to the Act’s disclosure requirements.

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3. Applications

Applications for public employment are subject to the Act’s disclosure requirements but special rules apply to applications to head an agency or to be president of a unit of the state university system.  The Act permits an agency to withhold records that would identify applicants for those positions.  O.C.G.A. § 50-18-72(a)(11). However, at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position of executive head of an agency or five business days prior to the meeting at which final action or vote is to be taken on the position of president of a unit of the University System of Georgia, all documents concerning as many as three persons under consideration whom the agency has determined to be the best qualified for the position shall be subject to inspection and copying.  Prior to the release of these documents, an agency may allow such a person to decline being considered further for the position rather than have documents pertaining to such person released.  In that event, the agency shall release the documents of the next most qualified person under consideration who does not decline the position.  If an agency has conducted its hiring or appointment process without conducting interviews or discussing or deliberating in executive session in a manner otherwise consistent with the Open Meetings Act, it shall not be required to delay final action on the position.  The agency shall not be required to release such records of other applicants or persons under consideration, except at the request of any such person.  Upon request, the hiring agency shall furnish the number of applicants and the composition of the list by such factors as race and sex.  The agency shall not be allowed to avoid the provisions of this paragraph by the employment of a private person or agency to assist with the search or application process.  Id.

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4. Personally identifying information

The Act generally exempts from public disclosure, albeit with a news media requester exception, an individual's Social Security number, mother's birth name, debit and credit card information, bank account information, financial data or information, insurance or medical information, etc. in all records. O.C.G.A. § 50-18-72(a)(20).  The Act likewise restricts, without a news media exception, access to certain sensitive identifying information concerning public employees.  § 50-18-72(a)(21).

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5. Expense reports

Expense reports have not been exempted from the Act’s disclosure requirements.

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

Police records are generally subject to the Act’s disclosure requirements. The Georgia First Amendment Foundation publishes in collaboration with the Georgia Association of Chiefs of Police, the Georgia Bureau of Investigation, the Georgia Department of Law, the Georgia Press Association, the Georgia Public Safety Training Center, the Georgia Sheriff’s Association and the Prosecuting Attorneys’ Council of Georgia a law enforcement officer’s guide to open records in Georgia, accessible online at http://www.gfaf.org/the-blue-book/.

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1. Accident reports

In 1999, the General Assembly limited access to individual Uniform Motor Vehicle Accident reports to those parties named in the report or those that otherwise have a "need" for the report as defined by statute. O.C.G.A. § 50-18-72(a)(5). Among the parties with a "need" for accident reports are those "gathering information as a representative of a news media organization." § 50-18-72(a)(5)(I).

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2. Police blotter

Initial police arrest reports and initial incident reports are subject to the Act’s disclosure requirements.  O.C.G.A. 50-18-72(a)(4).

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3. 911 tapes

The Act permits access to public records of an emergency "911" system, except information that would reveal the name, address, or telephone number of a person placing a call to a public safety answering point if redaction of such information is necessary to protect the identity of a confidential source, to prevent disclosure of information that would endanger the life or safety of any persons, or to prevent disclosure of the existence of a confidential investigation. O.C.G.A. § 50-18-72(a)(26).
The Act also places restrictions on access to audio recordings of 911 calls that contain “the speech in distress or cries in extremis of a caller who died during the call or the speech or cries of a person who was a minor at the time of the call,” § 50-18-72(a)(26.1), and to “audio and video recordings from devices used by law enforcement officers in a place where there is a reasonable expectation of privacy when there is no pending investigation,” § 50-18-72(a)(26.2).

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4. Investigatory records

The Act limits access to certain pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies.  O.C.G.A. § 50-18-72(a)(4).  The exemption, however, specifically provides that "initial police arrest reports and initial incident reports" are public records and must be disclosed. It further provides that “an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated.”   And it clarifies that the exception “shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.”  Id.

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5. Arrest records

Initial police arrest reports are subject to the Act’s disclosure requirements.  O.C.G.A. 50-18-72(a)(4).

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6. Compilations of criminal histories

The Act itself does not address compilations of criminal histories.  Otherwise by law and regulation, Georgia specifically permits criminal justice agencies to release prior criminal history information to the news media or any other person if the information is based on data contained in: (a) posters, announcements, flyers or computerized databases created to aid in the identification or arrest of fugitives, wanted persons, habitual offenders, career criminals or highly dangerous offenders; (b) incident reports, arrest/booking reports and other reports prepared by criminal justice agencies and defined by law as public records; or (c) official records of public judicial proceedings.  Ga. Comp. R. & Regs. 140-2-.01.

The Georgia Department of Corrections maintains a publicly-accessible online database of currently incarcerated and previously incarcerated offenders:  http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryForm.jsp

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7. Victims

Victim information is not exempt from the Act’s disclosure requirement.

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8. Confessions

There is no special exemption for confessions.

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9. Confidential informants

O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.

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10. Police techniques

O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.

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11. Mugshots

The Act permits the release of booking photographs—mug shots—only in accordance with certain statutory procedures designed to prohibit their use on websites that permit removal or deletion in return for payment of a fee.  See O.C.G.A. § 50-18-72(a)(4); § 35-1-18.

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12. Sex offender records

In accordance with O.C.G.A. § 42-1-12, the Georgia Bureau of Investigation (GBI) is the central repository for Georgia's Violent Sexual Offender Registry, which is accessible online at http://state.sor.gbi.ga.gov/Sort_Public/.

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13. Emergency medical services records

With the exception of patient medical records, ambulance service records are subject to the Act’s disclosure requirements.  See Griffin-Spalding County Hospital Authority v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978).

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

The Georgia Department of Corrections and the Georgia Board of Pardons and Paroles each maintain searchable online databases providing certain offender http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryForm.jsp and parolee information http://www.pap.state.ga.us/ParoleeDatabase/ .

However, a 2014 Atlanta Journal-Constitution review found the Georgia Board of Pardons and Paroles to be one of the nation’s most secretive, seldom explaining any of its decisions.  In general, all information, both oral and written, received by the members of the board and all documents coming into their possession by reason of the performance of their duties are “confidential state secrets until declassified by the board.”  O.C.G.A. § 42-9-53(b)(1).

Statute making confidential the names and other identifying information of the persons and entities involved in executions, including those who manufacture the drug or drugs to be used, did not violate the Act or inmate's First Amendment guarantee of free speech.  Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794, cert. denied, 135 S. Ct. 449, 190 L. Ed. 2d 340 (2014).

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Q. Professional licensing records

Professional licensing information is not addressed generally by the Act and its accessibility for public inspection varies depending on the professional license in question.  See, e.g., O.C.G.A. § 43-3-25.1 (accountant license applications not subject to disclosure); § 43-40-7(b) (real estate license applications not subject to disclosure but licensee names, disciplinary history and certain other information shall be made reasonably available for public inspection).

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R. Public utility records

Public utility records on file with the Georgia Public Service Commission are subject to the Act’s disclosure requirements.

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S. Real estate appraisals, negotiations

Records relating to real estate are subject to the Act’s disclosure requirements. The Georgia Superior Court Clerks’ Cooperative Authority maintains searchable online databases of such records.

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1. Appraisals

Real estate appraisals, engineering or feasibility estimates, or other records made for or by the state or a local agency relative to the acquisition of real property are exempt from the Act until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.  O.C.G.A. § 50-18-72(a)(9).

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2. Negotiations

Records made for or by the state or a local agency relative to the acquisition of real property are exempt from the Act until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.  O.C.G.A. § 50-18-72(a)(9).

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3. Transactions

Records made for or by the state or a local agency relative to the acquisition of real property are exempt from the Act until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.  O.C.G.A. § 50-18-72(a)(9).

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4. Deeds, liens, foreclosures, title history

Deeds, liens, etc. are subject to the Act’s disclosure requirements.  The Georgia Superior Court Clerks’ Cooperative Authority maintains searchable online databases of such records.

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5. Zoning records

Zoning records are subject to the Act’s disclosure requirements.

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T. School and university records

Public school and university records are subject to the Act’s disclosure requirements.  The Georgia First Amendment Foundation publishes in collaboration with the Georgia Department of Law, the Georgia Parent Teacher Association and the Georgia Press Association a citizen’s guide to accessing school records, available online at http://www.gfaf.org/the-green-book/.

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1. Athletic records

Public school and university athletic program records are subject to the Act’s disclosure requirements. See, e.g., Cremins v. Atlanta Journal and Constitution, 261 Ga. 496, 405 S.E.2d 675 (1991) (records reflecting the athletically related "outside" income of public university athletic coaches are public records even if the records are not on file with and have never been reviewed by university officials); Dooley v. Davidson, 260 Ga. 577, 397 S.E.2d 922 (1990) (same); Macon Tele. Publishing Co. v. Board of Regents, 256 Ga. 443 (1986) (records showing the assets, liabilities, income and expenses of the private University of Georgia Athletic Association are public records).

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2. Trustee records

Records of the Board of Regents of the University System of Georgia are subject to the Act’s disclosure requirements.

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3. Student records

Student records are subject to the Act’s disclosure requirements in some cases.  See, e.g., Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993) (records of the University of Georgia Student Organization Court subject to the Act).  As revised in 2012, the Act exempts any record that would not be subject to disclosure, or the disclosure of which would jeopardize the receipt of federal funds, under the federal Family Educational Rights and Privacy Act aka the Buckley Amendment.  O.C.G.A. § 50-18-72(a)(37).

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

The Act exempts certain public retirement system information.  O.C.G.A. § 50-18-72(a)(33), citing §§ 47-1-14, 47-7-127; § 50-18-72(a)(48), citing § 47-20-87.

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U. State guard records

The Act does not exempt state guard records.

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V. Tax records

The Act exempts records containing tax matters or tax information that is confidential under state or federal law.  O.C.G.A. § 50-18-72(a)(43).

The Act does not apply to information sought under statute providing for a taxpayer to request information related to property tax assessment from county board of tax assessors.  Hansen v. DeKalb Cty. Bd. of Tax Assessors, 295 Ga. 385, 761 S.E.2d 35 (2014).

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W. Vital Statistics

1. Birth certificates

Birth certificates will be made available to the person named on the certificate, parents shown on the birth record, authorized legal guardians or agents, grandparents, adult children, adult siblings, and spouses.

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2. Marriage and divorce

Certified copies of marriage licenses are available to the general public, but a certified copy of the marriage license application is only available to the bride and groom shown on the marriage license.
The state vital records office will conduct a search to determine the occurrence of a divorce, and can issue a confirmation of a divorce. The state office of vital records will not issue a divorce record. Certified copies of divorce records are only available from the Clerk of the Superior Court in the county where the divorce was granted.

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3. Death certificates

Death certificates are only issued to applicants having a direct and tangible interest, primarily family members or legal representatives of the family.

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4. Infectious disease and health epidemics

Infectious disease and health epidemic case reports and data are confidential but the Department of Public Health may release such reports and data in statistical form or for valid research purposes.  O.C.G.A. § 31-12-2(a).

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IV. Procedure for obtaining records

In cooperation with the Georgia First Amendment Foundation and the Georgia Press Association, the Office of the Attorney General of Georgia has prepared a useful citizen’s guide to the state’s sunshine laws, available online at http://www.gfaf.org/the-red-book/.

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A. How to start

“[T]here is a strong presumption that public records should be made available for public inspection without delay.”  O.C.G.A. § 50-18-70(a).  Georgia law is to be “broadly construed to allow the inspection of government records” as “public access to public records should be encouraged.”  Id.  

So, if you want access to records you believe to be in the possession of a state or local agency or a private person or entity functioning on their behalf, don’t be shy about simply asking the agency or private person or entity to show them to you.  If they refuse, ask them to explain why.

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1. Who receives a request?

Requests for public records under the Act should be made to the records’ custodian.  An agency may publicly and prominently (via its website and otherwise) designate one or more open records officers for the agency and require that all written requests for records be made to such officer, provided that the absence or unavailability of such officer shall not be permitted to delay the agency’s response.  O.C.G.A. §§ 50-18-71(b)(1)(B) & (b)(2).

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2. Does the law cover oral requests?

A written request is not required.  O.C.G.A. § 50-18-71(b)(1)(B) (requests may be made “orally or in writing”).  See, e.g., Howard v. Sumter Free Press Inc., 272 Ga. 521, 531 S.E.2d 698 (2000) (fact that some of newspaper's requests for sheriff's records were oral did not diminish their effect and requests were sufficiently specific to identify them as requests for information subject to the Act).

However, a 2012 amendment to the Act now permits civil or criminal enforcement only if there has been a written request.  § 50-18-71(b)(3).  So, if an oral request has been made and denied, a follow-up written request must be made before a requester may ask a court to order that records be disclosed.

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

The Act is designed to make the production of records expeditious.  Schick v. Bd. of Regents of Univ. Sys. of Georgia, 334 Ga. App. (2015).  Agencies that use e-mail in the normal course of business are required to accept public records requests via e-mail, O.C.G.A. § 50-18-71(b)(1)(B) & (2), so an e-mail request to the records’ custodian or, if the agency has designated one, to an agency open records officer, will typically be sufficient to immediately trigger the agency’s time to respond.

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1. Statutory, regulatory or court-set time limits for agency response

Upon receipt of a request, an agency is required to respond “within a reasonable amount of time not to exceed three business days.”  O.C.G.A. § 50-18-71(b)(1)(A). If some, but not all, records can be located and produced within three business days, the agency shall make those records available as soon as reasonable within that period.  If additional records exist but cannot be located and produced within that three day period, the agency shall, as soon as reasonable within that period, “provide the requester with a description of such records and a timeline for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.”  Id.

If an agency “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 within a reasonable amount of time not to exceed three business days or in the event the search and retrieval of records is [lawfully] delayed … then no later than three business days after the records have been retrieved.”  § 50-18-71(d).  “It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying.”  § 50-18-72(b).

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2. Informal telephone inquiry as to status

Many agencies welcome informal status inquiries, which can be helpful in zeroing in on exactly what records are requested.

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3. Is delay recognized as a denial for appeal purposes?

The Act does not require or otherwise provide for administrative appeals.

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4. Any other recourse to encourage a response

The Office of the Attorney General has established an Open Government Mediation Program “to help citizens with questions or concerns about local government’s decisions to close meetings to the public or governmental responses to Open Records requests.”  Further information, including a contact name and phone number, is available at: http://law.ga.gov/open-government-mediation-program.

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C. Administrative appeal

The Act does not require or otherwise provide for administrative appeals.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

The Act does not require or otherwise provide for administrative appeals.

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3. Fee issues

The Act does not require or otherwise provide for administrative appeals.

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4. Contents of appeal

5. Waiting for a response

The Act does not require or otherwise provide for administrative appeals.

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6. Subsequent remedies

The Act does not require or otherwise provide for administrative appeals.

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any person, firm, corporation or other entity may sue to enforce compliance, O.C.G.A. § 50-18-73(a), but only with respect to requests made in writing, § 50-18-71(b)(3).

The Attorney General also has specific statutory authority to bring actions to enforce compliance with the Act and to seek either civil or criminal penalties or both.  § 50-18-73(a).

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2. Priority

The Act does not specifically require courts to give priority to litigation to enforce the Act but expedited treatment may be sought and is often afforded depending upon the facts of the particular case.  See generally O.C.G.A. § 50-18-70(a) (The General Assembly … finds and declares that there is a strong presumption that public records should be made available for public inspection without delay.”).

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3. Pro se

A suit to enforce the Act may be brought pro se but legal assistance may be useful in presenting the issues and expediting their resolution. See also O.C.G.A. § 50-18-73(b) (authorizing the award of attorney fees to the prevailing party under certain circumstances).

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4. Issues the court will address

The Act affords courts the jurisdiction and authority "in law and in equity" to address any and all issues related to compliance with the Act. O.C.G.A. § 50-18-73(a).

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a. Denial

The courts regularly examine whether an agency's denial of a request is improper.

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b. Fees for records

The courts are authorized to examine whether fee requests violate the Act.

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c. Delays

The courts are authorized to examine whether an agency's delay violates the Act.

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d. Patterns for future access (declaratory judgment)

The courts are authorized to enjoin future violations.

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5. Pleading format

Suits to enforce the Act are typically initiated by filing with the court a verified complaint against the custodian of the records, specifying and attaching the request, which now must be in writing, and the custodian's response (or lack thereof), and explaining the alleged violation of the Act and a description of the relief sought. Where the custodian has refused to allow access, the complaint typically seeks issuance of an injunction requiring the custodian to afford access now and in the future and is accompanied by a motion and supporting memorandum to the same effect. Where time is an issue, the motion should request entry of an immediate injunction and request that the court hear the matter on an emergency basis.

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6. Time limit for filing suit

The statute does not set forth a specific limitations period for filing suit to enforce compliance.

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7. What court?

Georgia’s superior courts have jurisdiction to enforce compliance with the Act.  O.C.G.A. § 50-18-73(a).

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

In any enforcement action in which the court determines that a person or entity acted without substantial justification in not complying with the Act (or in instituting the litigation), the court may assess reasonable attorney’s fees.  O.C.G.A. § 50-18-74(b).

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b. Court and litigation costs

In any enforcement action in which the court determines that a person or entity acted without substantial justification in not complying with the Act (or in instituting the litigation), the court may assess reasonable attorney’s fees “and other litigation costs reasonably incurred.”  O.C.G.A. § 50-18-74(b).

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

Although the Georgia Constitution provides that the Supreme Court shall have appellate jurisdiction of "[a]ll equity cases," Ga. Const., Art. 6, §  6, ¶ III—as suits to enforce the Act typically are—the Court has held that "[c]ases in which the grant or denial of [equitable] relief was merely ancillary to underlying issues of law, or would have been a matter of routine once the underlying issues of law were resolved, are not 'equity cases,'" and that, even where equitable enforcement of the Act is sought, an appeal may properly be taken to the Court of Appeals if the appeal involves primarily an issue of law, such as the construction and application of the Act.  Beachamp v. Knight, 261 Ga. 608, 609, 409 S.E.2d 208 (1991).

Accordingly, appeals in Open Records Act cases are now typically taken by the Georgia Court of Appeals.

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2. Time limits for filing appeals

A notice of appeal must be filed within 30 days after entry of final judgment. See O.C.G.A. § 5-6-38.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press files amicus briefs in important cases before the state's highest courts, as does the Georgia First Amendment Foundation, the Georgia Press Association, and various media entities in the state.

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G. Addressing government suits against disclosure

Open Meetings

Open government principles are found in the state’s constitution, common law and state statutes.  The principal Georgia statute governing open meetings is Georgia’s Open Meetings Act, O.C.G.A. § 50-14-1, et seq.

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I. Statute - basic application

Georgia’s Open Meetings Act was first enacted in 1972 and, like the Open Records Act, was substantially revised in 2012.  Georgia courts have recognized “that openness in sensitive proceedings is sometimes unpleasant, difficult, and occasionally harmful. Nevertheless, the policy of this state is that the public's business must be open, not only to protect against potential abuse, but also to maintain the public's confidence in its officials.”  Red & Black Pub. Co. v. Bd. of Regents, 262 Ga. 848, 854, 427 S.E.2d 257, 263 (1993)

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A. Who may attend?

Any member of the public.  O.C.G.A. § 50-14-1(b)(1).

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B. What governments are subject to the law?

The “agencies” subject to the Act and the “meetings” subject and not subject to the Act are defined at the Act’s outset in O.C.G.A. § 50-14-1(a)(1) & (3).  In determining whether a particular agency or meeting is subject to the Act “we must bear in mind that the Open Meetings Act must be broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings.” Kilgore v. R.W. Page Corp., 261 Ga. 410, 411, 405 S.E.2d 655, 657 (1991), citing Atlanta Journal v. Hill, 257 Ga. 398, 399, 359 S.E.2d 913 (1987).

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1. State

The Act applies to “every state department, agency, board, bureau, office, commission, public corporation and authority.”  O.C.G.A. § 50-14-1(a)(1)(A).

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2. County

The Act applies to every county of the state and “every department, agency, board, bureau, office, commission, authority or similar body of each such county.”  O.C.G.A. § 50-14-1(a)(1)(B)-(D).

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3. Local or municipal

The Act applies to every municipal corporation, school district or other political subdivision of the state.  O.C.G.A. § 50-14-1(a)(1)(B)-(D).

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C. What bodies are covered by the law?

The Act applies to “nearly every group that performs any function of a government entity.”  Office of the Attorney General, Georgia’s Sunshine Laws (2014) at 7-8 [available online at http://www.gfaf.org/wp-content/uploads/2014/02/GeorgiasSunshineLaws2014WebEdition.pdf].  For example, city councils; county commissions; regional development authorities; library boards; school boards; commissions or authorities, such as hospital authorities, established by state or local governments; planning commissions; zoning boards; most committees of the University System of Georgia (such as those involving grievances, disciplinary matters, athletic matters and other student-related matters not specifically related to education); and non-profit corporations operating public hospitals.  Id.

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1. Executive branch agencies

Executive branch agencies and officials are subject to the Act.  O.C.G.A. §§ 50-14-1(a); 50-14-6.

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a. What officials are covered?

Executive branch agencies and officials are subject to the Act.  O.C.G.A. §§ 50-14-1(a); 50-14-6.

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b. Are certain executive functions covered?

Executive branch agencies and officials are subject to the Act.  O.C.G.A. §§ 50-14-1(a); 50-14-6.

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c. Are only certain agencies subject to the act?

Executive branch agencies and officials are generally subject to the Act, O.C.G.A. §§ 50-14-1(a); 50-14-6, but certain executive branch bodies are specifically exempted from the Act by the Act itself, see § 50-14-3(a)(3)(exempting the Georgia Bureau of Investigation and all other law enforcement and prosecutorial agencies) or by separate statute, see § 31-2A-16 (exempting the Department of Public Health’s Maternal Mortality Review Committee).

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2. Legislative bodies

The Act does not to apply to the Georgia General Assembly or its committees. Coggin v. Davey, 233 Ga. 407, 211 S.E.2d 708 (1975).  See Fathers Are Parents Too, Inc. v. Hunstein, 202 Ga. App. 716, 717, 415 S.E.2d 322, 322 (1992) (explaining that “[t]he Court reasoned that the Act was not intended to apply to the legislative branch since the Legislature had historically exercised the authority to adopt its own internal operating procedures, and had subsequently adopted the procedures at issue inconsistent with the Act”).  The Act aside, the Georgia Constitution provides that legislative sessions and all standing committee meetings shall be open to the public. Ga. Const., Art. 3, § 4, ¶ 11. But the Constitution permits either house by rule to provide for exceptions and each has done so.  Id.

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3. Courts

The Act has been held not to apply to judicial commission meetings. See Fathers Are Parents Too Inc. v. Hunstein, 202 Ga. App. 716, 415 S.E.2d 322 (1992). Court proceedings, although not subject to the Act, are nevertheless required to be open to the public as a matter of state and federal constitutional law. See, e.g., Presley v. Georgia, 558 U.S. 209, 215, 130 S. Ct. 721, 725, 175 L. Ed. 2d 675 (2010) (“[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials”); Rockdale Citizen Pub. Co. v. State, 266 Ga. 579, 468 S.E.2d 764 (1996) (closure of hearings requires clear and convincing proof that no other means are available to protect rights of criminal defendant); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982) (same). Cf. Uniform Superior Court Rule 22 (governing electronic and photographic news coverage of judicial proceedings).

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4. Nongovernmental bodies receiving public funds or benefits

The Act expressly applies to “any nonprofit organization to which there is a direct allocation of tax funds made by the governing body of any agency … which constitutes more than 33 1/3 percent of the funds from all sources of such organization.”  O.C.G.A. § 50-14-1(a)(E).  But the Act also provides that such an allocation shall not be sufficient to include within the Act’s coverage “hospitals, nursing homes, dispensers of pharmaceutical products, or any other type organization, person, or firm furnishing medical or health services to a citizen for which they receive reimbursement from the state” or “a subagency or affiliate of such a nonprofit organization from or through which the allocation of tax funds is made.”

In addition, private entities that operate "as vehicles for public agencies," whether nonprofit or otherwise, are subject to the Act regardless of the amount of funding they receive from the public. Northwest Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 461 S.E.2d 297 (1995).

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5. Nongovernmental groups whose members include governmental officials

Meetings of groups serving a governmental purpose are subject to the Act's requirements and government officials’ membership in the group or attendance at its meetings may be indicative of that purpose. See, e.g., Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994) (noting such membership and attendance and concluding that “the statute should not be so narrowly construed to require that a committee consist only of members of [an agency] to come within the purview of the Act”).

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6. Multi-state or regional bodies

Intra-state regional bodies are subject to the Act.  O.C.G.A. § 50-14-1(a)(1)(D).  The Act does not address multi-state bodies and no cases have addressed the applicability of the Act to such bodies.

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7. Advisory boards and commissions, quasi-governmental entities

The Act expressly applies to meetings of state, county and local commissions and to authorities and other such quasi-governmental entities. O.C.G.A. § 50-14-1(a)(1).

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8. Other bodies to which governmental or public functions are delegated

The Act has been broadly construed to apply to any group that performs any function of a government entity. See Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993).  Meetings of groups serving a governmental purpose are subject to the Act's requirements, see, e.g., Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994), as are private entities that operate "as vehicles for public agencies," regardless of the amount of funding, if any, they receive from the public. Northwest Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 461 S.E.2d 297 (1995).

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9. Appointed as well as elected bodies

The Act makes no distinction between elected and appointed agencies. Both are covered.

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D. What constitutes a meeting subject to the law

The Act defines a “meeting” as the gathering of a quorum of the members of a governing body of an agency or any of its committees at which any official business, policy or public matter of the agency is formulated, presented, discussed or voted upon.  O.C.G.A. § 50-14-1(a)(3)(A).

As long as not done to evade the Act and no official business is to discussed or action taken, the Act provides that it is not a “meeting” subject to the Act if an agency or one of its committees gathers together to inspect physical facilities or property of the agency, to travel to a meeting or to attend social, ceremonial, civic or religious events.  § 50-14-1(a)(3)(B)(i), (iv)-(v).

As long as not done to evade the Act and no official action is be taken, the Act also provides that it is not a “meeting” subject to the Act if an agency or one of its committees gathers together to attend statewide, multijurisdictional or regional meetings or seminars or to meet with state or federal officials at those officials’ offices.  § 50-14-1(a)(3)(B)(ii)-(iii).

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1. Number that must be present

The Act requires the gathering of a quorum, broadly defined.  O.C.G.A. § 50-14-1(a)(3)(A).  See, e.g., Claxton Enterprise v. Evans County Board of Commissioners, 249 Ga. App. 870, 549 S.E.2d 830 (2001); Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994).

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a. Must a minimum number be present to constitute a "meeting"?

The Act requires the gathering of a quorum, broadly defined.  O.C.G.A. § 50-14-1(a)(3)(A).  See, e.g., Claxton Enterprise v. Evans County Board of Commissioners, 249 Ga. App. 870, 549 S.E.2d 830 (2001); Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994).

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b. What effect does absence of a quorum have?

The Act requires the gathering of a quorum, broadly defined.  O.C.G.A. § 50-14-1(a)(3)(A).  See, e.g., Claxton Enterprise v. Evans County Board of Commissioners, 249 Ga. App. 870, 549 S.E.2d 830 (2001); Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994).  But absent a quorum, even broadly defined, “the letter of the law” is not violated.  Claxton Enterprise, 249 Ga. App. at 875, 549 S.E.2d at 835.

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2. Nature of business subject to the law

The Act applies to meetings at which “any official business, policy, or public matter of the agency is formulated, presented, discussed, or voted upon.”  O.C.G.A. § 50-14-1(a)(3)(A).

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a. "Information gathering" and "fact-finding" sessions

“Information gathering” and “fact-finding” sessions are not generally exempt from the Act.   O.C.G.A. § 50-14-1(a)(3)(A).

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b. Deliberation toward decisions

Deliberative sessions are not generally exempt from the Act.  O.C.G.A. § 50-14-1(a)(3)(A).

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3. Electronic meetings

Except in certain limited and specified circumstances, the Act provides for meetings to be conducted in person.  But the Georgia Court of Appeals has indicated that a "meeting" not permitted under the Act but sufficient to trigger consequences may occur "by written, telephonic, electronic, wireless, or other virtual means." Claxton Enter. v. Evans Cty. Board of Comm'rs., 249 Ga. App. 870, 875 549 S.E. 2d 830, 835 (2001). The Court added that "[a] designated place may be a postal, Internet, or telephonic address" and that "[a] designated time may be the date upon which requested responses are due." 249 Ga. App. at 876, 549 S.E.2d at 835.

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a. Conference calls and video/Internet conferencing

The Act authorizes agencies with state-wide jurisdiction and their committees to conduct meetings by teleconference call, but the meetings must comply with the requirements of the Act. O.C.G.A. § 50-14-1(f). See, e.g., 1994 Op. Att'y Gen. No. 94-11 (State Properties Commission may hold meetings via conference call if conducted in compliance with the Act).

As long as other requirements of the Act are met—including provision for simultaneous public access—other agencies and their committees are permitted to conduct meetings by teleconference only if “necessitated by emergency conditions involving public safety or the preservation of  property or public services.”  O.C.G.A. § 50-14-1(g).  Otherwise, provided a quorum is present in person, a member may be permitted to participate by teleconference but only if necessary for health reasons or absence from the jurisdiction and no more than twice in one calendar year, absent an emergency or written note from a health professional.  Id.

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b. E-mail

The Act does not apply to “e-mail communications among members of an agency.”  O.C.G.A. § 50-14-3(a)(7).  But such communications are subject to disclosure under the Open Records Act.  Id.

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c. Text messages

The Act does not authorize agencies to meet by text message.

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d. Instant messaging

The Act does not authorize agencies to meet by instant messaging.

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e. Social media and online discussion boards

The Act does not authorize agencies to meet by social media or online discussion board.

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E. Categories of meetings subject to the law

All agency and agency committee meetings at which “any official business, policy, or public matter of the agency is formulated, presented, discussed, or voted upon” are generally subject to the Act.  O.C.G.A. § 50-14-1(a)(3)(A).  But, as long as not done to evade the Act and no official business is to discussed or action taken, an agency may gather (without complying with the Act’s notice and other requirements) to inspect physical facilities or property of the agency, to travel to meetings and to attend social, ceremonial, civic or religious events.  § 50-14-1(a)(3)(B)(i),(iv)-(v).  And, as long as not done to evade the Act and no official action is be taken, an agency may gather (without complying with the Act’s notice and other requirements) at multijurisdictional, regional and statewide seminars or conferences and at meetings with state or federal officials at those officials’ offices.  § 50-14-1(a)(3)(B)(ii)-(iii).

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1. Regular meetings

The Act requires every agency subject to the Act to prescribe the time, place and dates of its regular meetings. O.C.G.A. § 50-14-1(d)(1).

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a. Definition

There is no statutory definition of “regular,” the term being understood in practice to refer to an agency’s customary, usual or normal schedule of meetings.  The Act requires agencies to hold meetings in accordance with a regular schedule.  O.C.G.A. § 50-14-1(d)(1).

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b. Notice

The Act requires information concerning the time, place and dates of an agency’s regular meetings to be available to the general public and to post a notice containing such information at least one week in advance in a conspicuous place available to the public at the regular meeting place of the agency as well as on the agency’s website.  O.C.G.A. § 50-14-1(d)(1).

The Act also requires agencies to post at the meeting site as far in advance of the meeting as reasonably possible—at some time during the two-week period immediately prior to the meeting—an agenda of all matters expected to come before the agency or committee at the meeting.  O.C.G.A. § 50-14-1(e)(1).

Technical compliance with notice requirements is not enough. If notice is insufficient to reasonably apprise a concerned party then it violates due process. Diamond Waste Inc. v. Monroe County, 692 F.Supp. 812 (M.D. Ga. 1992). Furthermore, the notice of a meeting must not be misleading. Where a county zoning board posted the agenda for a meeting which listed "Adjourn Public Hearing" prior to "Decision & Vote," there was "clearly a violation of the Open Meetings Act." Beck v. Crisp County Bd. of Appeals, 221 Ga. App. 801, 472 S.E.2d 558 (1996). Although the audience was never expressly told to leave the meeting, "the intentional, misleading acts of the county effectively excluded" the public and, therefore, all actions taken by the board were invalid. Id. at 804.

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c. Minutes

A summary of the subjects acted on and those members present at a meeting must be written and made available to the public for inspection within two business days of the meeting’s adjournment. O.C.G.A. § 50-14-1(e)(2)(A).

Regular minutes of the meeting must be open to public inspection no later than immediately following the agency’s next regular meeting and must include, at a minimum, the names of the members present; a description of each motion or other proposal made; the identity of the persons making and seconding the motion or other proposal; and a record of all votes, including the name of each person voting for or against the proposal.  § 50-14-1(e)(2)(B).

Even in recording non-roll-call votes, the minutes must reflect the names of each member present and if and how they voted.  Cardinale v. City of Atlanta, 290 Ga. 521, 722 S.E.2d 732 (2012).

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2. Special or emergency meetings

Special or emergency meetings are subject to special notice requirements.  O.C.G.A. § 50-14-1(d)(2)-(3).

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a. Definition

The Act provides one set of requirements for special meetings for which the agency affords at least 24-hours notice, see O.C.G.A. § 50-14-1(d)(2), and another set of requirements for irregular meetings that because of special circumstances are called with less than 24-hours notice, see § 50-14-1(d)(3).

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b. Notice requirements

For special meetings for which an agency is able to provide at least 24-hours notice, the Act requires that the agency afford such notice orally or in writing to the county legal organ or equivalent or, if the legal organ publishes less often than four times weekly, by posting written notice at the agency’s regular meeting place and by providing telephone, fax or e-mail notice to all local broadcast or print media that have requested it, along with a copy of meeting’s agenda.  O.C.G.A. § 50-14-1(d)(2).

When “special circumstances occur and are so declared,” an agency may hold a meeting with less than 24-hours notice upon giving “such notice of the meeting and subjects expected to be considered at the meeting as is reasonable under the circumstances. § 50-14-1(d)(3). That includes notice to the county legal or equivalent and to local broadcast and print media that have requested it. Id.

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c. Minutes

The Act makes no distinction between regular, special and emergency meetings with regard to minutes.  With respect to any meeting subject to the Act, a summary of the subjects acted on and those members present must be made available for public inspection within two business days of the meeting’s adjournment.  O.C.G.A. § 50-14-1(e)(2)(A).  Minutes must be promptly recorded and made available no later than immediately following the agency’s next regular meeting, and at a minimum provide the names of the members present for the meeting; a description of each motion or other proposal made; the identity of the persons making and seconding the motion or other proposal; and a record of all votes, including the name of each person voting for or against the proposal.  § 50-14-1(e)(2)(B).  In addition, for any meeting held on less than 24-hours notice, the minutes must reflect the reason for holding the meeting on less than 24-hours notice and the nature of the notice.  O.C.G.A. § 50-14-1(d)(3).

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3. Closed meetings or executive sessions

Agencies subject to the Act are not permitted to exclude the public from any portion of any meeting unless authorized to do so by a specific statutory exception, O.C.G.A. § 50-14-1(b)(1), and then only by majority vote taken in a properly noticed and open meeting, § 50-14-4(a).  Further, at a minimum, the person presiding over the meeting must execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the closed portion of the meeting was devoted to matters within a specified legal exception to the Act.  § 50-14-4(b)(1).  Exceptions to the Act must be narrowly construed.  Decatur Cty. v. Bainbridge Post Searchlight, Inc., 280 Ga. 706, 707, 632 S.E.2d 113, 116 (2006).

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a. Definition

The Act defines “executive session” as “a portion of a meeting lawfully closed to the public.”  O.C.G.A. § 50-14-1(a)(2).

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b. Notice requirements

The Act provides that no agency may close any portion of any meeting—i.e., go into executive session—except by a majority vote, in public session, of the quorum present.  O.C.G.A. § 50-14-1(b)(1); § 50-14-4(a).  Meetings at which an agency contemplates going into executive session are not excepted from the Act’s requirements that the agency afford due notice of the meeting and comply with the Act’s posting and agenda requirements. Id.

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c. Minutes

The Act requires that the publicly available minutes of any agency meeting in part closed to the public must reflect the specific reasons for the closure, the names of the members present and the names of those voting for closure.  O.C.G.A. § 50-14-4(a).

The Act also requires that the agency file with the minutes a notarized affidavit, executed by the person who presided over the meeting or, if the agency’s policy so provides, every member of the agency in attendance, stating under oath that the executive session was devoted to matters within a specified exception to the Act.  § 50-14-4(a).

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d. Requirement to meet in public before closing meeting

The Act requires that an agency meet in public before excluding the public and meeting in executive or closed session. No executive session is permissible absent a majority vote of a quorum of those present, O.C.G.A. § 50-14-4(a), and the Act requires all votes to be taken in public at a duly noticed meeting held in compliance with the Act’s posting and agenda requirements, § 50-14-1(b)(1).

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e. Requirement to state statutory authority for closing meetings before closure

The Act provides that no agency may close any portion of any meeting—i.e., go into executive session—except by a majority vote, in public session, of the quorum present.  O.C.G.A. § 50-14-4(a).

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f. Tape recording requirements

The Act does not require that agencies tape record executive sessions.  But the Act does require that agencies file with the minutes of any meeting at which the agency met in executive session a notarized affidavit, executed by the person who presided over the meeting or, if the agency’s policy so provides, every member of the agency in attendance, stating under oath that the executive session was devoted to matters within a specified exception to the Act.  § 50-14-4(a).

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F. Recording/broadcast of meetings

The Act expressly permits visual and sound recording of open meetings. O.C.G.A. § 50-14-1(c).

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1. Sound recordings allowed

Sound recordings are expressly permitted. O.C.G.A. § 50-14-1(c).

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2. Photographic recordings allowed

Photographs are expressly permitted. O.C.G.A. § 50-14-1(c).

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G. Access to meeting materials, reports and agendas

The Act requires agencies to post and make publicly available as far in advance of a meeting as possible an agenda of all matters expected to come before the agency at the meeting.  O.C.G.A. § 50-14-1(e)(1).  Materials and reports considered at a meeting should be publicly available at the meeting pursuant to the Open Records Act.

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H. Are there sanctions for noncompliance?

Any resolution, rule, regulation, ordinance or other official action of an agency adopted, taken, or made at a meeting not open to the public as required by the Act shall not be binding.  O.C.G.A. § 50-14-1(b)(2).

In addition, any person knowingly and willfully conducting or participating in a meeting in violation of the Act is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00. Alternatively, a civil penalty may be imposed by the court in any civil action brought pursuant to this chapter against any person who negligently violates the terms of this chapter in an amount not to exceed $1,000.00 for the first violation. A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12-month period from the date that the first penalty or fine was imposed.  § 50-14-6.

Participation in an unlawfully closed meeting may be grounds for recall from office.  See Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

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The Act's coverage should be construed broadly and its exceptions narrowly in order to effectuate its purpose of protecting the public from meetings held behind closed doors. See, e.g., Kilgore v. R.W. Page Corp., 261 Ga. 410, 405 S.E.2d 655 (1991).

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A. Exemptions in the open meetings statute

The Act’s exemptions are codified at O.C.G.A. § 50-14-3.

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1. Character of exemptions

The Act does not require closure of any meetings. It merely permits closure in certain circumstances, provided a majority of the quorum present vote to do so. O.C.G.A. § 50-14-4(a). See Steele v. Honea, 261 Ga. 644, 647, 409 S.E.2d 652 (1991) (Fletcher, J., concurring) (because violation of the Act may be grounds for recall from office, "if there is the slightest doubt, or any question whatsoever, as to whether a matter can be the subject of a closed meeting, DO NOT CLOSE").

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2. Description of each exemption

Investigative meetings.

The Act does not apply to staff meetings held for investigative purposes under duties or responsibilities imposed by law.  O.C.G.A. § 50-14-3(a)(1).

Board of Pardons and Paroles.

The Act does not apply to deliberations and voting of the State Board of Pardons and Paroles.  O.C.G.A. § 50-14-3(a)(2). In addition, the board may close meetings convened to receive information or evidence for or against clemency or in revocation proceedings, but only if the board determines that receipt of such information or evidence in an open meeting would present a substantial risk of harm or injury to a witness. Id.

Georgia Bureau of Investigation and other law enforcement and prosecutorial agencies.

The Act does not apply to meetings of the Georgia Bureau of Investigation or any other law enforcement agency in the state, including grand jury meetings. O.C.G.A. § 50-14-3(a)(3).

Adoptions.

The Act does not apply to adoptions and related proceedings.  O.C.G.A. § 50-14-3(a)(4).

Mediations.

The Act does not apply to gatherings involving an agency and one or more neutral third parties in mediation of a dispute between the agency and any other party.  O.C.G.A. § 50-14-3(a)(5). But no decision or resolution agreed to by an agency at any such caucus shall become effective until ratified in a public meeting and the terms of any such decision or resolution are disclosed to the public. And any final settlement agreement, memorandum of agreement, memorandum of understanding, or other similar document, however denominated, in which an agency has formally resolved a claim or dispute shall be subject to the Open Records Act.  Id.

Certain public hospital meetings.

The Act does not apply to meetings of any medical staff committee of a public hospital, O.C.G.A. § 50-14-3(a)(6)(A), of the governing authority or committee of a public hospital when performing a peer or medical review function under federal or state statute or regulation, § 50-14-3(a)(6)(B), citing § 31-7-15 and articles 6 and 6A of chapter 7 of title 31, or of the governing authority or committee of a public hospital in which the granting, restriction, or revocation of staff privileges or the granting of abortions under state or federal law is discussed, considered, or voted upon, § 50-14-3(a)(6)(C).

Idle conversation.

The Act does not apply to “incidental conversation unrelated to the business of the agency.”  O.C.G.A. § 50-14-3(a)(7).

E-mail communications.

The Act does not apply to “e-mail communications among members of an agency.”  O.C.G.A. § 50-14-3(a)(7).  But such communications are subject to disclosure under the Open Records Act.  Id.

Pending or potential litigation.

The Act does not permit any meeting to be closed on attorney-client privilege grounds for advice or consultation with legal counsel on whether to close a meeting.  O.C.G.A. § 50-14-2(1).  However, the Act does not repeal the attorney-client privilege, and permits agencies to close a meeting to consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee or in which the agency or any officer or employee may be directly involved.  Id.

The Act also specifically permits an agency to close a meeting to discuss or vote to authorize the settlement of such a dispute.  § 50-14-3(b)(1)(A).  However, no vote in executive session to settle litigation, claims, or administrative proceedings, shall be binding on an agency until a subsequent vote is taken in an open meeting where the parties and principal settlement terms are disclosed before the vote.  § 50-14-3.  In addition, any final settlement agreement, memorandum of agreement, memorandum of understanding, or other similar document, however denominated, in which an agency has formally resolved a claim or dispute shall be subject to the Open Records Act.  § 50-14-3(a)(5).

Real estate discussions.

The Act permits agencies to go into executive session to discuss or vote to:

  • Authorize negotiations to purchase, dispose of, or lease property;
  • Authorize the ordering of an appraisal related to the acquisition or disposal of real estate;
  • Enter into a contract to purchase, dispose of, or lease property subject to approval in a subsequent public vote; or
  • Enter into an option to purchase, dispose of, or lease real estate subject to approval in subsequent public vote.

O.C.G.A. § 50-14-3(b)(1)(B)-(E).  But no vote in executive session to acquire, dispose of, or lease real estate shall be binding on an agency until a subsequent vote is taken in an open meeting where the identity of the property and the terms of the acquisition, disposal, or lease are disclosed before the vote.  § 50-14-3(b).

Personnel meetings.

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee or interviewing applicants for the position of the executive head of an agency. O.C.G.A. § 50-14-3(b)(2).

But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. Id.

In addition, meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself must at all times be open to the public. Id.

Public retirement system meetings.

The Act permits the trustees and investment committee of any public retirement system to go into executive session to discuss matters pertaining to investment securities trading or investment portfolio positions and composition.  O.C.G.A. § 50-14-3(b)(3).

Discussion of records exempt from disclosure under the Open Records Act.

The Act permits agencies to go into closed session to consider records exempt from public disclosure but only if there are “no reasonable means by which the agency can consider the record without disclosing the exempt portions if the meeting were not closed.”  O.C.G.A. § 50-14-3(b)(4).

Tax matters.

The Act is not to be applied to disclose “tax matters which are otherwise made confidential by state law.”  O.C.G.A. § 50-14-2(2).

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B. Any other statutory requirements for closed or open meetings

The Act's open meeting requirements may be subject to provisions elsewhere in the Georgia Code. E.g., O.C.G.A. § 20-2-757(a) (public school disciplinary proceedings conducted by school administration or board of education not subject to requirements of Act); § 31-2A-16 (exempting the Department of Public Health’s Maternal Mortality Review Committee); § 43-34-124 (exempting meetings of the Patient Qualification Review Board to certify patients, physicians and pharmacies entitled to participate in the state’s medical marijuana program).

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C. Court mandated opening, closing

Superior courts have jurisdiction to enforce compliance with the Act, including the power to grant injunctions or other equitable relief. O.C.G.A. § 50-14-5(a).

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III. Meeting categories - open or closed

Agencies subject to the Act are not permitted to exclude the public from any portion of any meeting unless authorized to do so by a specific statutory exception, O.C.G.A. § 50-14-1(b)(1), and then only by majority vote taken in a properly noticed and open meeting, § 50-14-4(a).

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A. Adjudications by administrative bodies

The Act does not exempt adjudications by administrative bodies.

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1. Deliberations closed, but not fact-finding

The Act does not generally exempt deliberations of administrative bodies conducting adjudications. The Act does permit agencies to go into executive session when deliberating—but not to vote upon—disciplinary action or dismissal of a public officer or employee or interviewing applicants for the position of the executive head of an agency. O.C.G.A. § 50-14-3(b)(2).  But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument. Id.

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2. Only certain adjudications closed, i.e. under certain statutes

A number of the state’s professional licensing bodies are permitted by their enabling statutes to conduct deliberations in closed session.  See, e.g., O.C.G.A. § 43-11-12 (permitting non-disclosure of deliberations of the state dentistry board with respect to an application, an examination, a complaint, an investigation, or a disciplinary proceeding, except as may be contained in the official board minutes).

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B. Budget sessions

The Act does not exempt budget sessions.

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C. Business and industry relations

The Act does not exempt meetings regarding business or industry relations.

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D. Federal programs

The Act does not exempt meetings regarding federal programs.

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E. Financial data of public bodies

The Act does not exempt meetings concerning agency financial data.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

The Act has no exemption for discussions of financial data, etc.

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G. Gifts, trusts and honorary degrees

The Act has no exemption for discussions of gifts, trusts or honorary degrees.

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H. Grand jury testimony by public employees

The Act exempts grand jury meetings. O.C.G.A. § 50-14-3(3).

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I. Licensing examinations

The Act does not exempt licensing examinations. A number of the state’s professional licensing bodies are permitted by their enabling statutes to conduct deliberations in closed session.  See, e.g., O.C.G.A. § 43-11-12 (permitting non-disclosure of deliberations of the state dentistry board with respect to an application, an examination, a complaint, an investigation, or a disciplinary proceeding, except as may be contained in the official board minutes).

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J. Litigation, pending litigation or other attorney-client privileges

The Act does not permit any meeting to be closed on attorney-client privilege grounds for advice or consultation with legal counsel on whether to close a meeting.  O.C.G.A. § 50-14-2(1).  However, the Act does not repeal the attorney-client privilege, and permits agencies to close a meeting to consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee or in which the agency or any officer or employee may be directly involved.  Id.

The Act also specifically permits an agency to close a meeting to discuss or vote to authorize the settlement of such a dispute.  § 50-14-3(b)(1)(A).  However, no vote in executive session to settle litigation, claims, or administrative proceedings, shall be binding on an agency until a subsequent vote is taken in an open meeting where the parties and principal settlement terms are disclosed before the vote.  § 50-14-3.  In addition, any final settlement agreement, memorandum of agreement, memorandum of understanding, or other similar document, however denominated, in which an agency has formally resolved a claim or dispute shall be subject to the Open Records Act.  § 50-14-3(a)(5).

The threat of legal action must be "realistic and tangible," and more than "a mere fear or suspicion of being sued." Claxton Enter. v. Evans Cty. Board of Comm'rs., 249 Ga. App. 870, 874, 566 S.E.2d 399 (2002). Additionally, a meeting may not be closed for advice or consultation on whether to close the meeting. O.C.G.A. § 50-14-2.

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K. Negotiations and collective bargaining of public employees

The Act does not exempt meetings concerning negotiations and collective bargaining of public employees.

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1. Any sessions regarding collective bargaining

The Act does not exempt meetings concerning negotiations and collective bargaining of public employees.

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2. Only those between the public employees and the public body

The Act does not exempt meetings concerning negotiations and collective bargaining of public employees.

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L. Parole board meetings, or meetings involving parole board decisions

The Act does not apply to deliberations and voting of the State Board of Pardons and Paroles.  O.C.G.A. § 50-14-3(a)(2). In addition, the board may close meetings convened to receive information or evidence for or against clemency or in revocation proceedings, but only if the board determines that receipt of such information or evidence in an open meeting would present a substantial risk of harm or injury to a witness. Id. Hearings conducted by or on behalf of the board are required to be public. O.C.G.A. § 42-9-53(d).

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M. Patients, discussions on individual patients

The Act does not apply to meetings of any medical staff committee of a public hospital, O.C.G.A. § 50-14-3(a)(6)(A), of the governing authority or committee of a public hospital when performing a peer or medical review function under federal or state statute or regulation, § 50-14-3(a)(6)(B), citing § 31-7-15 and articles 6 and 6A of chapter 7 of title 31, or of the governing authority or committee of a public hospital in which the granting, restriction, or revocation of staff privileges or the granting of abortions under state or federal law is discussed, considered, or voted upon, § 50-14-3(a)(6)(C).

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N. Personnel matters

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee or interviewing applicants for the position of the executive head of an agency. O.C.G.A. § 50-14-3(b)(2).

But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. Id.

In addition, meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself must at all times be open to the public.  Id.

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1. Interviews for public employment

The Act only exempts interviews of applicants for the position of the executive head of an agency.  O.C.G.A. § 50-14-3(b)(2).

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2. Disciplinary matters, performance or ethics of public employees

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee. O.C.G.A. § 50-14-3(b)(2).  But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to impose disciplinary action or dismiss a public officer or employee or when considering or discussing matters of policy regarding the employment or hiring practices of the agency. Id.

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3. Dismissal, considering dismissal of public employees

The Act permits agencies to go into executive session when discussing or deliberating—but not to vote upon—dismissal of a public officer or employee. O.C.G.A. § 50-14-3(b)(2).  But the Act specifically provides that this exception does not apply to the receipt of evidence or when hearing argument on personnel matters, including whether to dismiss a public officer or employee. Id.

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O. Real estate negotiations

The Act permits agencies to go into executive session to discuss or vote to:

  • Authorize negotiations to purchase, dispose of, or lease property;
  • Authorize the ordering of an appraisal related to the acquisition or disposal of real estate;
  • Enter into a contract to purchase, dispose of, or lease property subject to approval in a subsequent public vote; or
  • Enter into an option to purchase, dispose of, or lease real estate subject to approval in subsequent public vote.

O.C.G.A. § 50-14-3(b)(1)(B)-(E).  But no vote in executive session to acquire, dispose of, or lease real estate shall be binding on an agency until a subsequent vote is taken in an open meeting where the identity of the property and the terms of the acquisition, disposal, or lease are disclosed before the vote.  § 50-14-3(b).

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P. Security, national and/or state, of buildings, personnel or other

The Act exempts law enforcement agency meetings.  Otherwise, the Act has no specific exception for security exemption.

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Q. Students, discussions on individual students

The Act does not exempt meetings regarding students. In fact, the Georgia Supreme Court held that even when student committees handle student disciplinary matters the meetings cannot be closed. Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 854, 427 S.E.2d 257 (1993) (Board of Regents "cannot hide behind meeting at which official action is taken on their behalf, and for which they are responsible, by contending that a group of students, none of whom are members of the [Board] is taking that action").

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IV. Procedure for asserting right of access

Georgia superior courts have jurisdiction to enforce the Act’s requirements.  O.C.G.A. § 50-14-5(a).  In addition, the Office of the Attorney General has established an Open Government Mediation Program “to help citizens with questions or concerns about local government’s decisions to close meetings to the public or governmental responses to Open Records requests.”  Further information, including a contact name and phone number, is available at: http://law.ga.gov/open-government-mediation-program.

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A. When to challenge

An informal or formal challenge is ripe and advisable as soon as a violation of the Act has occurred or is threatened.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The Act does not specifically require courts to give priority to litigation to enforce the Act but expedited treatment may be sought and is often afforded depending upon the facts of the particular case.

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2. When barred from attending

An informal or formal challenge is ripe and advisable as soon as a violation of the Act has occurred or is threatened.

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3. To set aside decision

An action contesting a resolution, rule, regulation, ordinance or other formal action of agency based on a violation of the Act must be commenced within 90 days of the date of the contested action or within 90 days from the date the contestant knew or should have known of the violation, but in no event more than 6 months after the contested action occurred.  O.C.G.A. § 50-14-1(b)(2).  If the contested action was a zoning decision, any action must be commenced within the time allowed by law for appeal of the decision. § 50-14-1(b)(3). See Walker v. City of Warner Robbins, 262 Ga. 551, 422 S.E.2d 555 (1992) (relief not available under the Act because suit was commenced more than 90 days after agency action).

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4. For ruling on future meetings

Georgia's superior courts have discretion to grant injunctive relief in actions to enforce compliance with the Act.

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5. Other

Participation in an unlawfully closed meeting may be grounds for recall from office.  See Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

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B. How to start

Absent the successful pursuit of informal relief with the agency directly or through the Office of Attorney General’s mediation program (http://law.ga.gov/open-government-mediation-program), compliance must be sought in court.

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1. Where to ask for ruling

Georgia superior courts have jurisdiction to enforce the Act’s requirements.  O.C.G.A. § 50-14-5(a).

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a. Administrative forum

The Act does not provide an administrative forum for challenging non-compliance with the Act.

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b. State attorney general

Georgia’s Attorney General has express authority to bring enforcement actions, either civil or criminal, in his or her discretion as may be appropriate to enforce compliance with the Act.  O.C.G.A. § 50-14-5(a).

In addition to advising state agencies on open government matters, the Attorney General has established an Open Government Mediation Program “to help citizens with questions or concerns about local government’s decisions to close meetings to the public or governmental responses to Open Records requests.”  Further information, including a contact name and phone number, is available at: http://law.ga.gov/open-government-mediation-program.

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c. Court

Georgia superior courts have jurisdiction to enforce the Act’s requirements.  O.C.G.A. § 50-14-5(a).

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2. Applicable time limits

A suit to invalidate an official agency action must be commenced within 90 days of the date of the contested action or within 90 days from the date the contestant knew or should have known of the violation, but in no event more than 6 months after the contested action occurred.  O.C.G.A. § 50-14-1(b)(2).  If the contested action was a zoning decision, any action must be commenced within the time allowed by law for appeal of the decision.  § 50-14-1(b)(3). The Act contains no limitation on commencement of a suit to make minutes and past agendas available to the public. See Guthrie v. Dalton School Dist., 213 Ga. App. 849, 446 S.E.2d 526 (1994).

No ante litem notice is required in Open Meetings cases.  City of Statesboro v. Dabbs, 289 Ga. 669, 715 S.E.2d 73 (2011).

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3. Contents of request for ruling

Any request for a ruling from a court of law should state the grounds on which the request is based, including the specific provisions of the Act that the agency has violated or will violate in the future. Suits to enforce the Act are typically initiated by filing with the court a verified complaint against the agency officials who have violated or threatened to violate the Act, explaining the violation and describing the relief sought. The complaint typically seeks issuance of an injunction to remedy past and/or prevent future violations and is accompanied by a motion and supporting memorandum to the same effect. Where time is an issue, the motion should request entry of an immediate injunction and request that the court hear the matter on an emergency basis.

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4. How long should you wait for a response

When a violation is threatened or ongoing and the damage substantial or irreparable, the court may entertain a request for an immediate hearing.

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5. Are subsequent or concurrent measures (formal or informal) available?

Informal measures at resolution are not barred by the pendency of a court action.

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C. Court review of administrative decision

Georgia superior courts have jurisdiction to enforce the Act’s requirements.  O.C.G.A. § 50-14-5(a).

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1. Who may sue?

A suit to enforce compliance with the Act may be brought "by any person, firm, corporation, or other entity." O.C.G.A. § 50-14-5(a). In addition, the Attorney General may bring civil or criminal actions to enforce compliance with the Act. § 50-14-5(a).

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2. Will the court give priority to the pleading?

The Act does not specifically require a court to give priority to litigation to enforce the Act, but expedited treatment may be sought and is often afforded depending upon the facts of the case.

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3. Pro se possibility, advisability

A suit to enforce the Act may be brought pro se, but legal assistance is typically useful in presenting the issues and expediting their resolution. See also O.C.G.A. § 50-14-5(b) (authorizing the award of attorney fees to the prevailing party under certain circumstances).

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4. What issues will the court address?

The court has broad discretion to effectuate complete relief.

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a. Open the meeting

The court may grant an injunction or other equitable relief to enforce compliance with the Act, including requiring that a meeting be open.  O.C.G.A. § 50-14-5(a).

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b. Invalidate the decision

The court may invalidate agency action based on a violation of the Act.  See O.C.G.A. § 50-14-1(b)(2).

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c. Order future meetings open

The court may grant an injunction or other equitable relief to enforce compliance with the Act, including requiring that future meetings be open.  O.C.G.A. § 50-14-5(a).

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5. Pleading format

Suits to enforce the Act are typically initiated by filing with the court a verified complaint against the agency officials who have violated or threatened to violate the Act, explaining the violation and describing the relief sought. The complaint typically seeks issuance of an injunction to remedy past and/or prevent future violations and is accompanied by a motion and supporting memorandum to the same effect. Where time is an issue, the motion should request entry of an immediate injunction and request that the court hear the matter on an emergency basis.

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6. Time limit for filing suit

A suit to invalidate an official agency action must be commenced within 90 days of the date of the contested action or within 90 days from the date the contestant knew or should have known of the violation, but in no event more than 6 months after the contested action occurred.  O.C.G.A. § 50-14-1(b)(2).  See, e.g., Tisdale v. City of Cumming, 326 Ga. App. 19, 755 S.E.2d 833 (2014) (affirming trial court decision that action challenging official action was time barred).  If the contested action was a zoning decision, any action must be commenced within the time allowed by law for appeal of the decision.  § 50-14-1(b)(3). The Act contains no limitation on commencement of a suit to make minutes and past agendas available to the public. See Guthrie v. Dalton School Dist., 213 Ga. App. 849, 446 S.E.2d 526 (1994).

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7. What court?

Georgia's superior courts have jurisdiction to enforce compliance with the Act. O.C.G.A. § 50-14-5(a).

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8. Judicial remedies available

The superior courts have jurisdiction to grant relief in law or equity. O.C.G.A. § 50-14-5(a). The court may grant an injunction requiring that future agency meetings be made open to the public or that the agency comply with the Act's notice and minutes provisions. The court may also grant an injunction requiring an agency to make minutes, agendas, and transcripts of past meetings available to the public. The Act also provides for suits to invalidate official agency actions taken in violation of the Act's provisions. O.C.G.A. § 50-14-1(b)(2). See, e.g., City of Statesboro v. Dabbs, 289 Ga. 669, 715 S.E.2d 73 (2011) (trial court had authority to order city to hold substitute meetings to remedy prior meetings held in violation of Act).

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9. Availability of court costs and attorney's fees

In any action brought to enforce the provisions of the Act in which the court determines that an agency acted without substantial justification in not complying, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred.  O.C.G.A. § 50-14-5(b).  See, e.g., City of Statesboro v. Dabbs, 289 Ga. 669, 671, 715 S.E.2d 73, 75 (2011) (as trial court expressly found that city’s violations of Act “were not a result of special circumstances and no substantial justifications for the violations were provided,” an assessment of reasonable attorney’s fees against the city was required); Slaughter v. Brown, 269 Ga. App. 211, 603 S.E.2d 706 (2004) (lack of bad faith does not support a finding of special circumstances sufficient to decrease the award of litigation costs); Evans Cty. Board of Comm'rs. v. Claxton Enter., 255 Ga, App. 656, 566 S.E.2d 399 (2002) (absence of official action at a meeting does not support a finding of special circumstances sufficient to decrease the award of costs for both trial and appellate litigation). But cf. Moon v. Terrell Cty, 260 Ga. App. 433, 579 S.E.2d 845 (2003) (commissioners acted with substantial justification when they closed the meeting in order to protect plaintiff's privacy rights).

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10. Fines

The Act makes knowing and willful violation of its provisions a misdemeanor punishable by a fine not to exceed $1,000.00. Alternatively, a civil penalty may be imposed by the court in any civil action brought to enforce the Act against any person who negligently violates the Act’s terms, in an amount not to exceed $1,000.00 for the first violation. A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12-month period from the date that the first penalty or fine was imposed.  O.C.G.A. § 50-14-6.

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11. Other penalties

Officials who violate the Act may be subject to recall. See Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991).

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D. Appealing initial court decisions

Georgia’s appellate courts have a long tradition of respect for and adherence to “the strong public policy of this state in favor of open government” that is embodied in the Act.  Richmond Cnty. Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 20, 311 S.E.2d 806, 808 (1984).  See generally Davis v. City of Macon, 262 Ga. 407 (1992) (Weltner, C.J., concurring).

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1. Appeal routes

Although the Georgia Constitution provides that the Supreme Court shall have appellate jurisdiction of "[a]ll equity cases," Ga. Const., Art. 6, §  6, ¶ III—as suits to enforce the Act typically are—the Court has held that "[c]ases in which the grant or denial of [equitable] relief was merely ancillary to underlying issues of law, or would have been a matter of routine once the underlying issues of law were resolved, are not 'equity cases,'" and that, even where equitable enforcement of the Act is sought, an appeal may properly be taken to the Court of Appeals if the appeal involves primarily an issue of law, such as the construction and application of the Act.  Beachamp v. Knight, 261 Ga. 608, 609, 409 S.E.2d 208 (1991).

Accordingly, appeals in Open Meetings Act cases are now typically taken by the Georgia Court of Appeals.

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2. Time limits for filing appeals

A notice of appeal must be filed within 30 days after entry of final judgment. See O.C.G.A. § 5-6-38.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press files amicus briefs in important cases before the state's highest courts, as does the Georgia First Amendment Foundation, the Georgia Press Association, and various media entities in the state.

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V. Asserting a right to comment

Georgia county commissions and city councils and like bodies, e.g., school boards, typically have rules affording a limited right of public comment at meetings.  See, e.g., Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732, 734 (2012) (noting the existence of rules governing public comment at Atlanta city council meetings).  The state’s Open Meetings Act does not address the issue of public comment.

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A. Is there a right to participate in public meetings?

Georgia county commissions and city councils and like bodies, e.g., school boards, typically have rules affording a limited right of public comment at meetings.  See, e.g., Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732, 734 (2012) (noting the existence of rules governing public comment at Atlanta city council meetings).  The state’s Open Meetings Act does not address the issue of public comment.

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B. Must a commenter give notice of intentions to comment?

Georgia county commissions and city councils and like bodies, e.g., school boards, typically have rules affording a limited right of public comment at meetings.  See, e.g., Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732, 734 (2012) (noting the existence of rules governing public comment at Atlanta city council meetings).  The state’s Open Meetings Act does not address the issue of public comment.

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C. Can a public body limit comment?

Georgia county commissions and city councils and like bodies, e.g., school boards, typically have rules affording a limited right of public comment at meetings.  See, e.g., Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732, 734 (2012) (noting the existence of rules governing public comment at Atlanta city council meetings).  The state’s Open Meetings Act does not address the issue of public comment.

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D. How can a participant assert rights to comment?

Georgia county commissions and city councils and like bodies, e.g., school boards, typically have rules affording a limited right of public comment at meetings.  See, e.g., Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732, 734 (2012) (noting the existence of rules governing public comment at Atlanta city council meetings).  The state’s Open Meetings Act does not address the issue of public comment.

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E. Are there sanctions for unapproved comment?

Georgia county commissions and city councils and like bodies, e.g., school boards, typically have rules affording a limited right of public comment at meetings.  See, e.g., Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732, 734 (2012) (noting the existence of rules governing public comment at Atlanta city council meetings).  The state’s Open Meetings Act does not address the issue of public comment.

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Appendix

The Law Library of Congress’ Guide to Law Online: Georgia has links to useful and reliable sites for Georgia legal information:   https://www.loc.gov/law/help/guide/states/us-ga.php

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