POLITICAL PULSE

The 157th session of the Georgia General Assembly

CHRISTY TARALLO

Hopefully, just about anyone can tell you that there are three branches of government: the executive, the legislative, and the judicial. Their purposes are simple, the legislature makes laws, the executive enforce laws, and the judicial interpret laws. The judges who sit on Georgia’s esteemed courts, however, sometimes adhere to a “strict constructionist” approach. That is to say they interpret laws very narrowly, they don’t consider legislative intent, there are only black and white words on a page and it’s this type of interpretation of the law that sometimes completely and totally challenges the status quo. And that’s important: bear with me.

This past summer, the Georgia Supreme Court turned the open records act on its head and significantly expanded what constitutes a public record and how one may access it. In MILLIRON V. ANTONAKAKIS, a gentleman named Ryan Milliron requested various records from a professor, who is also a contractor, at Georgia Tech named Emmanouil Antonakakis. The ruling by the Supreme court stated that Milliron asserted Antonakakis “‘prepared and maintained or received records,’ including ‘documents related to Georgia Tech business,’ for ‘storage or future governmental use,’ and these documents were considered ‘public records’ under the Open Records 5 Act.”

The case originally went to Fulton County court, then to the Georgia Court of Appeals, who both sided with the professor. According to 11Alive News, those courts “rejected arguments that a public or state employee is personally responsible for producing public records documents under an Open Records Act request – rather than specifically appointed public records officers within agencies that must fall under compliance with the act.”

The Supreme Court disagreed and stated in the ruling that “we conclude that, even when an agency has designated an open records officer to whom requests must be made for public records within the agency’s custody, an open records request can still be made to a custodian of public records outside the agency, like here to a private contractor working for an agency.” Or, say, a consulting engineer.

Status quo, meet challeng

The ruling makes it clear that any entity who conde.ucts business for a public agency and is in custody of any records regarding that work for the agency, be it a department or local government, is subject to Georgia’s Open Records Act. This allows any individual to request public documentation directly from a private contractor, even if the agency for which the contractor is conducting work has a designated public records officer.

Full compliance with the Open Records Act requires a great deal of knowledge of the extensive Act. The law states that “all public records shall be open for personal inspection and copying” unless specifically exempted from disclosure “within a reasonable amount of time not to exceed three business days of receipt of a request” which “may be made to the custodian of a public record orally or in writing.” In the event that not all records can be made available within those three days, “an agency shall, within such time period, provide the requester with a description of such records and a timeline for when the records will be available for inspection…and provide the responsive records or access thereto as soon as practicable.”

The agency may designate an individual as the public records officer for whom these requests can be made; however, “the absence or unavailability of the designated agency officer or employee shall not be permitted to delay the agency’s response.” The agency may, however, “impose a reasonable charge for the search, retrieval, redaction, and production or copying costs” of the requested records. The Act goes on to explain how “reasonable charges” may be determined.

Simply put, once a public records request is made, the entity—even if they are private—must respond within three business days with either the records or a description of the records, a timeframe, and the total cost if one is incurred, for when the requester should expect them.

The consequences of noncompliance with the Open Records Act are also spelled out in law. OCGA § 50-18-74 states that “any person or entity knowingly and willfully violating [the law] by failing or refusing to provide access to records not subject to exemption…by knowingly and willingly failing or refusing to provide access to such records within the time limits… or 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 subject to a fine of not more than $1,000 for the first violation. A civil penalty or criminal fine that may not exceed $2,500 may be assessed for any subsequent violation. Further, the Act gives superior courts adjudication authority and allows the court to “assess in favor of the complaining party reasonable attorney’s fees” or litigation costs.

The results of this Supreme Court decision are vast and widespread for consulting engineers and the business community in general. The cost of noncompliance, even unwilful noncompliance, can be incredibly burdensome and expensive.

Senate Bill 12 by Senator Frank Ginn (R-Danielsville) seeks to redefine what is considered a public record to include only documents that are prepared, maintained, or received by a public agency and not in the possession of a private individual or entity. This would re-establish the open records standard that all public agency contractors have been operating under.

Eighteen other senators have signed the legislation in a bipartisan fashion, signally strong support for this common sense fix that will ease the burden on private entities who provide the state and its political subdivisions services and simplify the way in which the public can request records.

The business community strongly supports this fix and is advocating for the swift passage of this legislation to re-establish the status quo before potentially nefarious actors have the chance to exploit the new ruling and cause noncompliance issues amongst firms who aren’t aware of the new standard.