By Seth Eisenberg
The Georgia Open Records Act (the “Act”) made headlines this past summer thanks to University of Georgia’s new football head coach, Kirby Smart. Coach Smart visited the Gold Dome during the 2016 Legislative Session and, as you can imagine, spoke with legislators about expectations for the Georgia Bulldogs. Nevertheless, the media reported that Coach Smart lobbied legislators about the Act claiming it was more stringent than other states’ reporting requirements. After the passage of legislation relaxing the response requirements for Georgia’s public colleges, the media proceeded to affectionately name it “Kirby’s Law.”
Kirby’s Law brought national attention to Georgia’s Open Records Act, codified at O.C.G.A. § 50-18-70 et seq., but Georgia trial lawyers are the ones who should understand its benefits. Kirby’s Law eases the response time to ninety (90) days for requests for records of intercollegiate sports programs of any unit of the University System of Georgia.(1) However, this new provision has little impact on the Act’s overall usefulness for Georgia trial lawyers.
If you are litigating against governmental agencies or public employees, taking advantage of the Act’s broad disclosure mandate is a must. Even in litigation not involving a government agency, there may be government records containing relevant information about private parties in your case. When utilizing the Act prior to a lawsuit, you can avoid pesky defense counsel stall tactics and objections of “relevance” and “unduly burdensome” that are commonly faced in discovery.
Procedure for Making a Request
The Georgia General Assembly enacted the current version of the Georgia Open Records Act, with the exception of Kirby’s Law, in 2012. The legislature expressly declared that there is a strong presumption to allow public access and inspection of governmental records.(2) The Act provides that all “public records of a “public agency,” except those exempted by law, be open to inspection by the general public.(3)
Any member of the public can make a records request, and said request can be made orally or in writing.(4) It is recommended that the request be made in writing because the Act’s enforcement protections for government compliance are only available to written requests.(5) A request can be sent by email, fax or other written delivery method so long as you can obtain proof of receipt.(6)
The Act requires public agencies to respond within three (3) business days of receipt of a request.(7) If the records are accessible but cannot be compiled for production within the three days, then the burden is on the government agency to provide a written description of the responsive documents as well as an estimate of time for when the records will be available for production or inspection.(8)
Government agencies typically designate a specific employee as open records officer to receive and process a request. The three (3) business day period for the government’s response is tolled until a requestor sends the written request to the designated custodian.(9) An agency may impose a reasonable charge for the search and production of any responsive records and may insist on prepayment prior to producing the records.(10)
Records Available Under the Act
Pursuant to the broad declaration in favor of open government, the Act requires production of “all public records” that are “prepared and maintained or received “by a government agency or on behalf of a government agency.(11) “Public records” is defined as “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.”(12) This definition includes electronic records such as emails and text messages even if these records are maintained on a home computer or personal device.(13)
Simply, if the record can be related to the service or function of a “government agency”, it must be produced barring a statutory exemption. Government agency is defined as “Every state department… [e]very county, municipal corporation, school district… [e]very city, county, regional or other authority established pursuant to the laws of this state…”(14) This definition includes non-profits receiving at least a one-third percent of their funding from a governmental entity.(15) Transit; hospital; and housing authorities are all subject to the Act’s disclosure requirements.(16)
Georgia courts have authorized the disclosure of records regarding (1) a bus drivers’ job performance, disciplinary actions, and accidents on the job(17); (2) city employees’ cellular telephone numbers and bills(18); and (3) the insurance commissioner’s investigatory report into the claims handling practices of an insurance company(19). The Act further provides for disclosure of incident reports and closed investigation files in the possession of law enforcement.
There is a statutory list of exceptions from disclosure of certain records, but this list must be interpreted narrowly by agencies to exclude only portions of records.(20) Notable exemptions include (1) pending law enforcement investigation files; (2) trade secrets; and (3) attorney client and work product privileged records.(21) It is the government agencies’ burden to expressly state the applicable statutory exception in its response letter.
This article does not advocate relying upon the provisions of Georgia’s Open Records Act in lieu of traditional discovery procedures. Certain excepted records will no doubt be discoverable in civil litigation and of course the availability of records outside of discovery is no replacement for requests for admission or depositions. It is a tool that should be used in conjunction with discovery. When investigating your client’s claims against a public entity, the Act can provide access to useful records for shaping your client’s claims before filing suit. Most importantly, this information is not subject to a defense counsel’s subjective view as to relevance or the increasingly popular “confidentiality order.”
About the Author
Seth Eisenberg is the founder of The Eisenberg Firm. Seth is a personal injury and government liability law specialist having obtained victories worth millions of dollars to his clients. He is a seasoned trial lawyer with significant trial and appellate court experience in Georgia. After graduating from Emory University and Georgia State University College of Law with high marks, Seth was hired by a top tier insurance defense firm before he went to work defending the city of Atlanta. He now represents plaintiffs. Seth grew up in New Jersey and now resides in Candler Park in Atlanta, Georgia. He is blessed with an amazing family for which he gives complete credit to his beautiful wife, Suzanne.
1 O.C.G.A. § 50-18-71(d)(1).
2 O.C.G.A. § 50-18-70(a).
3 O.C.G.A. § 50-18-71(a).
4 O.C.G.A. § 50-18-71(b)(1)(B).
5 O.C.G.A. § 50-18-71(b)(3).
6 O.C.G.A. § 50-18-71(b)(2).
7 O.C.G.A. § 50-18-71(b)(1)(A).
8 See, e.g., Napper v. Georgia Television Co., 257 Ga. 156 (1987).
9 O.C.G.A. § 50-18-71(b)(2).
10 O.C.G.A. § 50-18-71(d).
11 See O.C.G.A. § 50-18-70(b)(1),(2).
13 See, e.g., Schick v. Board of Regents of University System of Georgia, 334 Ga. App. 425 (2015).
14 See O.C.G.A. § 50-18-70(b)(2).
17 (Hackworth v. Board of Educ. For City of Atlanta, 214 Ga. App. 17 (1994))
18 (Dortch v. Atlanta Journal, 261 Ga. 350 (1991))
19 (Hoffman v. Oxendine, 268 Ga. App. 316 (2004))
20 O.C.G.A. § 50-18-70(a).
21 O.C.G.A. § 50-18-72.
Young Lawyer Oral Arguments
By Matthew Wilson
Attention lawyers who have practiced less than five years, do you have a federal case in the Northern District of Georgia? Many of the district court judges in the Northern District will grant oral argument on a civil motion automatically where a young lawyer will present at least a significant portion of the argument.
Currently, nearly all of the non-senior status judges allow special dispensation for young lawyers wanting to argue a motion. These include:
• Judge Timothy C. Batten, Sr.
• Judge Mark H. Cohen
• Judge Leigh Martin May
• Judge Eleanor L. Ross
• Judge Richard W. Story
• Judge Amy Totenberg
Use this to your advantage to obtain some oral argument experience in federal court! As many of the judges have stated in their standing orders, “it [is] the Court’s belief that young attorneys need more opportunities for Court appearances than they usually receive.”
The Northern District has recently expanded their website to provide more transparency to both parties and counsel. You can view the standing orders from the court’s main website, under the “Individual Judge Instructions.”
About the Author
Matthew Wilson is a partner at Akin & Tate, P.C. where his practice focuses on general litigation and appeals. Matthew was named a 2017 Super Lawyers Rising Star, is a 2016 graduate of the GTLA LEAD Program, and currently serves on both the Verdict Editorial Board and Civil Justice PAC Young Lawyers Committee. He can be reached at email@example.com.