Jennifer Colangelo 404-656-4168 jcolangelo@law.ga.gov Page 1
O.C.G.A. 50-18-70 (a) The General Assembly finds and declares 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. The purpose of the Open Records Act and Open Meetings Act is to encourage public access to information and to foster confidence in government through openness to the public. The Open Records Act, as well as the Open Meetings Act, is always interpreted in favor of openness. Exceptions that allow certain records to be withheld should be narrowly construed. If a record can be redacted instead of withheld completely, then it should be redacted. The Role of the AG The Attorney General has the power to enforce the law in civil or criminal actions. Our goal in most cases is to obtain compliance, not to sanction; we have an informal open government mediation program to try to resolve disputes between local governments and their citizens. The mediation program does not apply to our clients; we advise clients about the law. The Attorney General has the power to enforce the Open Meetings Act and the Open Records Act in civil or criminal actions. The goal of the Attorney General in most cases is to obtain compliance, not to sanction, and to educate the public and agencies about the requirements of the Acts. Therefore, he has created an informal open government mediation program to try to resolve disputes between local governments and their citizens. (However, the mediation program cannot include any state agencies represented by the Attorney General.) The Role of the AG The mediation program allows any citizen to submit a complaint to the Attorney General s office by mail, email, or through a form available on the Attorney General s website. We are also available to talk to public officials, public employees, or records custodians about what the Act requires We have publications and other resources available on our website. The mediation program allows any citizen to submit a complaint to the Attorney General s office by mail, by email, or through a form available on the Attorney General s website. If the complaint appears to describe a possible violation of the Open Records or Open Meetings Act, someone from the office will then contact the agency to get their response to the complaint. Nearly all the complaints are resolved at this stage once an agency receives a letter from the office and has a chance to discuss the issue and the requirements of the Acts, the agency generally complies with the Open Records request, or modifies their meeting procedures to comply with the Open Meetings Act. Page 2
Most violations that are brought to the Attorney General s attention are the result of a lack of knowledge about what the Acts require, and those disputes have usually been resolved through mediation and education. On rare occasions, the Attorney General will file a lawsuit. This generally occurs when there are repeated violations, deliberate and knowing violations, or an inability to agree on what the law requires. The Role of the AG The Attorney General s office also takes calls from local government employees or officials who need information about the requirements of the Acts. However, we cannot provide legal advice to anyone except our clients. A city or county attorney can provide advice to local governments and agencies. Drafts of documents What is a Public Record? 'Public record' means 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. Your agency may have documents that are in the process of being written and are not in their final version, such as the draft of a report, or a proposed budget. There is not any exception in the Act for drafts; they are subject to the same rules for their release as the final version would be. Page 3
Record held by 3 rd parties An agency has 2 options when someone requests records that are held by a 3 rd party: 1 get a copy of the records from the 3 rd party, and provide them to the requester 2 ask the 3 rd party to provide the records directly to the requester The important thing is that either way, the agency is responsible for making sure the Open Records Act is followed. If you rely on the 3 rd party to provide access to the records, you must make sure that they respond within 3 days, and follow all other requirements. Court Records Because the Open Records Act does not apply to the judiciary branch, records from Superior, State, Juvenile, Magistrate or Probate courts are not covered by the Act.* However, city courts and municipal courts are subject to the Act.** *Ga. Const. Art. VI, I, Para. I. **Rule 6 of the Uniform Rules of the Municipal Courts of the State of Georgia. The Uniform Rules of the Municipal Courts say: RULE 6. WITHDRAWAL OF PAPERS FROM THE MUNICIPAL COURT No original papers may be withdrawn from the municipal court. However, copies of any documents may be obtained by any party or the attorney for any party upon payment of copy costs to the clerk. All court records are public and are to be available for inspection in accordance with and as limited by the Georgia Open Records Act, as amended. Page 4
Superior & State Court Superior Court Rule 21: Limitation of Access to Court Files All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below. The rest of Rule 21 talks about the procedures for sealing records, and the parts of records that must be redacted. O.C.G.A. 9-11-7.1 puts the burden on someone filing a pleading to redact certain information. State courts follow the same rule. Probate Court Rule 4.1 -- Access to court files. All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below. Rule 4.3 -- Copies of records. Copies of records may be obtained for a reasonable cost. Emails and Data Stored Electronically Agencies shall produce electronic copies of or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. * The agency should use its existing tools to search by keyword, date range, or other parameters that their software allows. * O.C.G.A. 50-18-71(f) For example: If a requester asks for all emails to or from employee John Smith between 1/1/2014 and 1/1/2016 : You can search your email server using appropriate search terms in the to, from and date fields Page 5
If a requester asks for all documents that discuss the issue of fees for court transcripts : You are NOT required to read all the documents on your server to see if they meet that description. (See O.C.G.A. 50-18-71(g)) Usually the most efficient response is to tell the requester: We will search our server for documents that contain the search terms fees and court transcripts and provide you with the results. Please let us know if you would prefer different search terms. If a requester asks for all emails to or from employees of the Attorney General s office : Inform the requester that you will search for all emails that contain the characters @law.ga.gov. You are not required to independently acquire a list of all Attorney General emails. Phone Records If the request is for phone records from the agency s phones, those would probably be considered records held by a 3 rd party, and the agency is responsible for producing them to the requester. If an employee or public officer uses their personal phone for agency business, then the portion of the record that contains records of those calls should be made available to the requester. Remember that the Open Records Act does not cover the retention of records. If an agency is unable to provide records of phone calls because they have not been kept, then inform that requester that the records do not exist. Text Messages If an agency issues cell phones to its employees, then the text messages sent and received on those cell phones that concern agency business are public records, and should be provided in response to a request. Again records retention can be a tricky issue, but the Open Records Act only requires an agency to produce the records they have or can get from their cell phone provider. If an employee uses a cell phone for personal text messages, those personal text messages would probably not be considered public records. Page 6
Emails from a Private Account Many small agencies or commissions are not able to provide official email accounts for employees or public officers; therefore, they use their own private email accounts for public business. Those emails should be provided in response to a request. In a situation where employees or public officers cannot be provided with official email addresses, they should strongly consider creating new email accounts to be used for public business. For example, a new city council member whose private email address is joesmith@gmail.com could create a new account, joesmithcity@gmail.com, and only use that one for public business. Facebook and Tweets If an agency has a Facebook page or a Twitter account, and uses it to post information related to the agency s business, then that is a public record. A public official s Facebook page could be a public record if it identifies the official by their title and only contains posts about their official role i.e., Mayor Susan Ross has a Facebook page that says Mayor Susan Ross, and all the posts are about city business, with no posts or pictures of her dog or family What about comments that members of the public post on a Facebook page? Those could be considered public records; but they may not need to be saved, depending on the records retention policy. Records That Can t Be Copied You may have some records that can t be copied. For example: microfilm or microfiche; extremely large displays or posters. The ORA only requires that you provide the requester with a chance to inspect the records and make their own copies. O.C.G.A. 50-18-72(a) says that All public records shall be open for personal inspection and copying. Therefore, even if your agency is unable to make a copy of the record, the requester may bring their own equipment to make copies. For example, they could use their cell phone to take photographs of the screen of the microfilm machine. Page 7
Records Retention State Records Committee Mission Statement: The mission of the State Records Committee is to provide review for the approval, disapproval, amendment, or modification of retention schedules submitted by state agency heads and local governments through the Department of Archives and History in accordance with O.C.G.A. 50-18-92. The State Records Committee issues guidelines for use by local governments; the local government then adopts its own schedule based on those guidelines. Records retention information is available on the Georgia Archives web site, at http://www.georgiaarchives.org/records/laws and http://www.georgiaarchives.org/records/retention_s chedules Some records are considered transitory, which means their useful life is limited. These are records, correspondence, and communications received or sent that do not document decisions regarding significant matters, or that that have no documentary or evidential value. These only have to be saved as long as they are useful. Records Retention The retention schedule for a record is determined by its content, not its format. This means that you should not have a retention schedule for emails. For example, the retention schedule for Meeting Notices is 5 years. This includes Official notification of the time and place of regular and special meetings. Therefore, such notices should be saved for 5 years regardless of whether they are printouts, electronic documents, or emails. Page 8
Records Retention The Open Records Act requires that the public be given access to records that exist at the time of the request. If a requested record used to exist but has been destroyed by the time of the request, that is not a violation of the Open Records Act regardless of whether the agency was required to retain that record. The Attorney General is not given specific authority to enforce the records retention statutes. However if a record is destroyed AFTER an Open Records request is received, that may be a violation of the Open Records Act. Records Retention Adherence to records retention schedules can help with privacy concerns that arise from Open Records requests. Example: job applications GASC-06-003 Applications for Employment, Not Hired Category: Personnel Description: Records documenting employment applications of persons not hired. Records may include but are not limited to: unsolicited, incomplete, and complete applications; supporting documentation, interview notes and materials; background surveys; and correspondence. Retention: Unsolicited and incomplete applications: Useful life; All other records: 3 years. Classification: Temporary-Short-Term Legal Citation: 29 CFR 1602.31 Page 9
Exceptions O.C.G.A. 50-18-72(a) contains a list of about 50 types of records that are exempt from release. If a request is made for records that fall under one of these exceptions, then the agency must specifically cite the exception relied upon, including the code section, paragraph, and subparagraph. For example, the agency should not respond the requested records cannot be provided because they contain medical information. The proper response would be the requested records contain medical records that are exempt from disclosure under O.C.G.A. 50-18-72(a)(2). Exceptions Should Be Interpreted Narrowly O.C.G.A. 50-18-70(a) states: The exceptions set forth in this article, 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. In other words, if confidential information can be redacted, then it should be redacted and the rest of the record should be provided, as opposed to withholding the whole record. O.C.G.A. 50-18-72(a)(2) [private medical information] Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy This is not quite the same as what HIPAA requires. O.C.G.A. 50-18-72(a)(20)(B)(x) O.C.G.A. 50-18-72(a)(20) [personal information] This exception provides a list of personal information that should be redacted, such as social security number, month and day of birth, credit card numbers, and so on. Exception to the Exception: Reporters with an affidavit, they can get SSNs and birthdates; Prosecutors and law enforcement can get unredacted information; Person requesting their own information, it does not have to be redacted. This paragraph shall have no application to The disclosure of the date of birth within criminal records Page 10
You should redact the following: * social security number * mother's birth name * credit card information * debit card information * bank account information * account number * utility account number * passwords * financial data or information * insurance or medical information in all records * unlisted telephone number if so designated in a public record * personal e-mail address or cellular telephone number * day and month of birth Times when you would NOT have to redact that information: if the person requesting such records requests such information in a writing signed under oath by such person, AND that writing states that such person is gathering information as a representative of a news media organization for use in connection with news gathering and reporting; AND provided, further, that such access shall be limited to social security numbers and day and month of birth. And some more times you would not have to redact: An individual or his or her legal representative may obtain records containing that individual s social security numbers, mother s birth name, credit card, debit card, bank account, financial data, insurance data, or medical information A government employee may obtain records containing social security numbers, mother s birth name, credit card, debit card, bank account, financial data, insurance data, or medical information if he or she is doing so for administrative or law enforcement purposes Any individual may obtain date of birth and mother s birth name of a deceased individual Court orders or subpoenas for the information A request from a court, prosecutor, or publicly employed law enforcement officer seeking records in an official capacity; The disclosure of information necessary to comply with legal or regulatory requirements The disclosure of the date of birth within criminal records. NOTE: there is nothing requiring ages to be redacted. Page 11
O.C.G.A. 50-18-72(a)(21) [public employee information] You should redact the following: everything in the previous exception public employee s home address home telephone number day and month of birth financial data or information other than compensation by a government agency unlisted telephone number if so designated in a public record the identity of the public employee's immediate family members or dependents This applies to both current employees and former employees. Page 12
Jane Doe (a)(20 123 Maple Ave., Decatur GA 30030 (a)(20) (a)(20) Doe (a)(2) Doe (a)(2) (a)(2) Page 13
Incorrect Redactions Page 14
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COLANGELO 123 Maple Ave. Page 19
O.C.G.A. 50-18-72(a)(3) [records compiled for L/E or prosecution] NOTE: This exception applies to any agency that has such records, even if that agency is not a law enforcement agency. You may withhold the following: Records compiled for law enforcement or prosecution purposes... IF the production of those records is reasonably likely to disclose the identity of a confidential source, OR IF production is reasonably likely to disclose confidential or investigative or prosecution material which would endanger the life or physical safety of any person OR IF production is reasonably likely to disclose the existence of a confidential surveillance or investigation. O.C.G.A. 50-18-72(a)(4) [records of a pending investigation or prosecution] You may withhold the following: Records of a law enforcement, prosecution, or regulatory agency... in any pending investigation or prosecution of criminal or unlawful activity... other than initial incident reports and initial arrest reports This will include any material gathered or created by law enforcement during the investigation: statements written by witnesses, photographs, photo lineups, physical evidence, lab reports. NOTE: Does not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution. ANOTHER NOTE: There are no exceptions to this exception that would apply to an individual who is the subject of the investigation. The Defendant in a criminal case does get more (or less) records than any other requester. Page 20
O.C.G.A. 50-18-72(a)(5) [motor vehicle accident reports] Georgia Uniform Motor Vehicle Accident Reports may be withheld; But should be released... IF the person requesting it is named or identified in the report OR IF the person making the request submits a written statement of need, which contains one of 11 reasons. Report may be released to the person making the request if they submit a written statement of need, which contains one of these reasons: (A) Has a personal, professional, or business connection with a party to the accident; (B) Owns or leases an interest in property allegedly or actually damaged in the accident; (C) Was allegedly or actually injured by the accident; (D) Was a witness to the accident; (E) Is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident; (F) Is a prosecutor or a publicly employed law enforcement officer; (G) Is alleged to be liable to another party as a result of the accident; (H) Is an attorney stating that he or she needs the requested reports as part of a criminal case, or... (I) Is gathering information as a representative of a news media organization; provided, however, that such representative submits a statement affirming that the use of such accident report is in compliance with Code Section 33-24-53. (J) Is conducting research in the public interest for such purposes as accident prevention,... ; provided, however, that this subparagraph shall apply only to accident reports on accidents that occurred more than 60 days prior to the request and which shall have the name, street address, telephone number, and driver's license number redacted; or (K) Is a governmental official, entity, or agency, or an authorized agent thereof, requesting reports for the purpose of carrying out governmental functions or legitimate governmental duties; NOTE: O.C.G.A. 40-9-30 allows the Department of Transportation (and its third party designees ) to charge $5 for providing a copy of an accident report. Recently, DoT has said that they consider all local agencies to the 3 rd party designees. Page 21
O.C.G.A. 50-18-72(a)(8) [records of internal investigations] A common question is whether to release complaints that an agency receives, when those complaints lead to an investigation. You may withhold the following: Records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees UNTIL 10 days after the report has been presented to the agency for action, OR UNTIL 10 days after the investigation is otherwise concluded or terminated. O.C.G.A. 50-18-72(a)(26) [911 calls and CAD reports] NOTE: There is an exception to that exception if the request is made by the defendant in a criminal case. You should release: recordings of 911 calls CAD reports You should withhold the following: the part of the call or report that would reveal the name, address or telephone number of the person placing the call, IF redacting it is necessary to prevent the disclosure of the identify of a confidential source, OR IF redacting it is necessary to prevent the disclosure of information that would endanger the life or safety of a person, OR IF redacting it is necessary to prevent the disclosure of the existence of a confidential surveillance or investigation. O.C.G.A. 50-18-72(a)(26.1) [911 calls] 911 calls which 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 do not have to be released. There is a long list of exceptions to the exception: If the requester is one of a list of people, as shown by a sworn affidavit, the records should be released to them. If the requester is one of these people, as shown by a sworn affidavit, the records should be released to them: A duly appointed representative of a deceased caller's estate; A parent or legal guardian of a minor caller; An accused in a criminal case when, in the good faith belief of the accused, the audio recording of the 9-1-1 telephone call is relevant to his or her criminal proceeding; A party to a civil action when, in the good faith belief of such party, the audio recording of the 9-1-1 telephone call is relevant to the civil action; An attorney for any of the persons identified in subparagraphs (A) through (D) of this paragraph; or Page 22
An attorney for a person who may pursue a civil action when, in the good faith belief of such attorney, the audio recording of the 9-1-1 telephone call is relevant to the potential civil action; O.C.G.A. 50-18-72(a)(26.2) [ body cams and dash cams ] I think the idea behind this exception is to avoid conflicts with Georgia s wiretapping laws. You should NOT release 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. In other words body cams and dash cams. This statute has the same list of exceptions as (a)(26.1). O.C.G.A. 50-18-72(a)(9) [real estate appraisals] You may withhold 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 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)(34) [trade secrets] You may withhold any trade secrets obtained from a person or business entity that are required by law, regulation, bid or request for proposal to be submitted to an agency. HOWEVER, the entity that wants to protect its trade secrets must submit and attach to the records an affidavit affirmatively declaring that the information constitutes trade secrets. Page 23
Things that don t have an exception in the ORA Drivers license numbers* Names of rape victims** Home addresses of victims or witnesses (unless the record shows that they are public employees) Uniform Traffic Citations Agency handbooks or policies/procedures*** Employment applications Personnel files, performance evaluations, training records, POST certification records * O.C.G.A. 40-5-2(b) says: The records maintained by the department [of drivers services] on individual drivers are exempt from any law of this state requiring that such records be open for public inspection; provided, however, that initial arrest reports, incident reports, and the records pertaining to investigations or prosecutions of criminal or unlawful activity shall be subject to disclosure pursuant to paragraph (4) of subsection (a) of Code Section 50-18-72 and related provisions. That means that DDS s own records should be withheld, if you have received records from them. DL numbers that appear in other types of records, such as a citation or initial incident report, does not need to be redacted. ** There used to be a law that prohibited newspapers from publishing those names, but the Supreme Court said it was unconstitutional. *** A law enforcement agency may need to redact some things that might compromise security, such as procedures for dealing with confidential informants. (a)(25) Privacy Concerns Court cases have sometimes held that there is a right of privacy that can allow records to be withheld. This would occur when releasing the records would constitute the tort of invasion of privacy. If you have records that contain information that raises a concern about privacy, you should talk to the attorney for your agency. Page 24
Exceptions Outside the ORA Many statutes, scattered throughout the Georgia Code, exempt various records from release. O.C.G.A. 45-16-27 Coroners, death investigations, and autopsies Autopsies and coroners reports should be released, except as follows: Photographs should not be disclosed Crime scene photos that show death, dismemberment, etc. But remember there s usually exceptions to the exceptions these can be released to next of kin, or to law enforcement. Autopsies and coroners reports should be released, except as follows: (d) Autopsy photographs shall not be subject to disclosure pursuant to [the Open Records Act]; provided, however, that this subsection shall have no application to the disclosure of such photographs to law enforcement agencies and prosecutors for law enforcement purposes or, in closed criminal investigations, to medical schools, medical facilities, and physicians for medical purposes; to individuals who have secured a written release from the deceased's next of kin; or to the next of kin. (e) (1) Crime scene photographs and video recordings, including photographs and video recordings created or produced by a state or local agency or by a perpetrator or suspect at a crime scene, which depict or describe a deceased person in a state of dismemberment, decapitation, or similar mutilation including, without limitation, where the deceased person's genitalia are exposed, shall not be subject to disclosure pursuant to [the Open Records Act]; Except to next of kin, as in section (d) There are also some exceptions having to do with a habeas corpus lawsuit Page 25
O.C.G.A. 17-4-20.1 Family Violence Report O.C.G.A 17-4-20.1 requires a Family Violence Report to be made on a form provided by the GBI. This report is made for statistical purposes only If no arrest is made, then it does not have to be released EXCEPT: A defendant who has been arrested for family violence, or the victim in the incident, is entitled to view and copy the report. This exception only applies to the Family Violence Report made on the GBI form, not to any other records collected or created as part of the investigation, such as video or witness statements. O.C.G.A. 49-5-40 Reports of child abuse O.C.G.A. 49-5-40 says that records concerning child abuse are confidential and should not be released: Each and every record concerning reports of child abuse and child controlled substance or marijuana abuse which is in the custody of the department or other state or local agency is declared to be confidential, and access thereto is prohibited except as provided in Code Section 49-5-41 and Code Section 49-5-41.1. O.C.G.A 49-5-41(e) contains an exception: any agency that needs to use the reports in order to carry out its legal duty to protect children from abuse and neglect Other exceptions are: a court-issued subpoena but first the court must do an in-camera inspection OR a grand jury subpoena OR a request from the DA and some other ones O.C.G.A. 35-3-37(h) Criminal History Reports Ie., GCIC reports should be withheld But if the report just lists GA felony convictions, then it should be released It should also be released if it s in a closed investigatory file. Page 26
A few other exceptions: Birth certificates: O.C.G.A. 31-10-25(a) Probation and parole records: O.C.G.A. 42-9- 53(b), 42-8-40 DD-214: O.C.G.A. 15-6-72(c)(1) Reports of elder abuse or exploitation of residents in an elder-care facility: O.C.G.A. 31-8-86 Records Concerning Juveniles Most of the rules applying to records of juveniles who are arrested or charged with a crime are contained in Title 15, the juvenile code. Examples of things that should be released in some circumstances: Incident reports, arrest reports, and closed case files Circumstances when you release records: The juvenile is age 13 or over AND the crime is one that is sent to Superior Court (this would include the seven deadlies plus other cases that are transferred to Superior Court) And also these circumstances: The juvenile is age 13 or older AND the crime is a Class A or B designated felony More: The juvenile is any age AND he has previously been adjudicated delinquent The juvenile is any age AND he committed a traffic offense AND he has not previously been adjudicated delinquent The case is adjudicated in open court, regardless of the age or charges Page 27
Exceptions for witnesses, victim, and minors HOWEVER: O.C.G.A. 50-18-72(a)(3) allows you to redact information that would reveal a confidential investigation, or endanger a person s safety. There are no ORA exceptions that specifically allow the names of victims to be redacted There are no ORA exceptions that specifically allow the names of witnesses to crimes to be redacted There are no ORA exceptions that specifically protect the identify of a minor who is a victim or a witness. Record Restriction Expungement is now Record Restriction. Records are not destroyed; the records will still exist in an agency s files, but are only accessible for certain purposes For arrests after July 1, 2013: Defendants do not need to fill out an application to have an arrest removed from their GCIC history There are additional steps to have other agencies restrict their records. For arrests prior to July 1, 2013: A defendant must apply for restriction at the arresting agency. O.C.G.A. 35-3-37 Forms and information are available on the GBI website: https://gbi.georgia.gov/georgia-criminalhistory-record-restrictions Record Restriction Restriction of a GCIC criminal history happens automatically WHEN: (1) Before indictment/accusation: LEA closes case and no further prosecution occurs, And 2 years pass (for misdemeanor), or 4 years pass(felony), or 7 years pass (serious violent felony or sexual offense), The case is referred to the prosecuting attorney but later dismissed (and not accused/indicted), The grand jury returned two no bills. * If later on, charges are somehow indicted, then GCIC unrestricts the record. Page 28
Record Restriction Restriction of a GCIC criminal history happens automatically WHEN: (2) After accusation/indictment: the case is dismissed or nolle prossed, Defendant gets a conditional discharge (OCGA 16-13-2) and successfully completes sentence, Defendant acquitted by a jury, Defendant successfully completes a drug court or mental health court program. There are some other situations involving convictions for defendants under 21 Record Restriction There are other situations where a defendant may petition the Superior Court to have their records restricted. For example, they are convicted but their conviction is reversed on appeal and they are not retried. (Check the statute for other situations.) Record Restriction When GCIC determines that a record should be restricted, they must notify the arresting agency. Then the arresting agency should restrict their own records. To have jail records restricted (after other records have been restricted), a defendant must submit a written request to the appropriate jail or detention center. To restrict criminal history record information maintained by the clerk of court, the defendant must petition the court that had jurisdiction over the case O.C.G.A. 35-3-37(j) Record Restriction and the ORA O.C.G.A. 35-3-37(q): It shall be the duty of the entity to take such action as may be reasonable to prevent disclosure of information to the public which would identify any individual whose criminal history record information is restricted pursuant to this Code section. Response to an ORA request: We do not have any records responsive to your request. Information should not be disclosed to the public ; this seems to suggest that an individual can still get their own information. O.C.G.A. 35-3-37 There is nothing in the statute that talks about restricting access to the District Attorney s files. When "criminal history record information" has been incorporated by a law-enforcement agency into an investigatory case file, it should be open for public inspection unless its disclosure would constitute an invasion of privacy. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987) Page 29
Requests for Records An agency may designate a specific individual to be an open records officer upon whom requests for inspection and copying should be made. That designation should be in writing, and should be provided to anyone who asks. That information should also be provided to the legal organ of the county, and should be posted on the agency s website. The advantage of having an open records officer is that the three-day period for responding to a request does not begin until that person receives the request in writing. The advantage of having an open records officer is that the three-day period for responding to a request does not begin until that person receives the request in writing. However, the agency should make sure that someone else is available to receive the requests if the open records officer is away from work. Regardless of which of these options is chosen, an agency must still allow verbal requests. O.C.G.A. 50 18 71(b)(2). Requests for Records The Open Records Act says: A request made pursuant to this article may be made to the custodian of a public record orally or in writing. Keep in mind that not all requesters have the literacy skills to be able to make a written request. An agency can provide a form for requesters to fill out this will help requesters provide the necessary information. If the agency has a web site, the form can be posted there. Many agencies also have forms on a web page that citizens can fill out online; the information from the forms is then emailed to the people responsible for responding to the requests. You should have at least 2 people monitoring the form submissions. In addition, the Act says that an agency shall permit receipt of written requests by e-mail or facsimile transmission in addition to any other methods of transmission approved by the agency, provided such agency uses e-mail or facsimile in the normal course of its business. O.C.G.A. 50 18 71(b)(1)(B) Nothing in the Open Records Act specifically allows an agency to require that a person requesting records provide their name, address, or phone number. If a person walks in and verbally requests a record that can be provided immediately, and the person is able to pay the costs then and there, then there is not any practical need to require any identifying information. If the records are not available immediately, the requester will have to provide enough information that they can be notified when the records are available to be picked up. If the requester wants to know if the estimated cost of the records exceeds $25, they will have to provide some kind of contact information. Page 30
Requests for Records In addition, the Act says that an agency shall permit receipt of written requests by e-mail or facsimile transmission in addition to any other methods of transmission approved by the agency, provided such agency uses e-mail or facsimile in the normal course of its business. O.C.G.A. 50 18 71(b)(1)(B) Requests for Records Nothing in the Open Records Act specifically allows an agency to require that a person requesting records provide their name, address, or phone number. If a person walks in and verbally requests a record that can be provided immediately, and the person is able to pay the costs then and there, then there is not any practical need to require any identifying information. If the records are not available immediately, the requester will have to provide enough information that they can be notified when the records are available to be picked up. If the requester wants to know if the estimated cost of the records exceeds $25, they will have to provide some kind of contact information. Page 31
Sample: Open Records Request Page 32
Sample: Open Records Request January 11, 2016 Floyd County Police Department Chief Bill Shiflett 5 Government Plaza Rome, GA 30161 RE: Georgia Open Records Act Request Dear Chief Shiflett: This is an Open Records Request, pursuant to O.C.G.A. 50-18-70, for a copy of the following records: Any video or audio recordings of the arrest of Robert Worthington on February 5, 2015. (I believe there may be a dashcam video.) If the file is larger than 5 MB, please mail a copy to me, since our email system does not accept attachments larger than 5 MB. Also please let me know if the cost is expected to exceed $25. Thank you in advance for your assistance in this matter. In the meantime, if you have any questions, please free to call. Sincerely, Jennifer Colangelo Assistant Attorney General Page 33
Sample: Open Records Request Form Page 34
Sample: Local Government Web Site Page 35
Sample: Local Government Web Site Page 36
Responding to Requests Records should be made available within three business days from receipt of the request. When some documents are available and some are not, immediate access must be permitted to the ones that are available.* This is rolling access. When in doubt about what is sought, the agency should confer with the requester. The ORA requires that an agency produce for inspection all records responsive to a request. For some types of records, this may mean that you allow the requester to come look at the records in person. *O.C.G.A. 50 18 71(b)(1)(A) Through our mediation program, we have found that frequent communication with a requester can prevent many complaints. 3-Day Letters If the records are available, the agency must produce them for inspection within 3 days. When some documents are not immediately available, or the agency estimates it is going to charge more than $25 to produce the records, it must send a letter within 3 business days from receipt of the request.* 3-Day Letters The three-day letter should include a timeline of when the documents will be made available. If the estimated cost is more than $25, the threeday letter should also provide the cost estimate. In that case, the agency should wait for approval from the requester before proceeding to work on the request. O.C.G.A. 50-18-71(b)(1)(A) Although the Act does not specifically state this, an agency should notify the requester if the timeline changes. For example, if the agency originally estimates that the records will be available in 5 days, but on the 5 th day they realize that it will take longer, they should let the requester know about the delay and provide an updated timeline. The law does not require the agency to provide an itemized breakdown of costs if the estimated cost is more than $25. However, doing so can save an agency time in the long run, because it may help the requester modify their request to reduce the time and cost to retrieve the records. Many complaints about costs are received through the mediation program; the Attorney General s office tries to help resolve those disputes by pointing out to an agency that providing a detailed breakdown of costs will help achieve the goals of the Open Records Act, which includes foster[ing] confidence in government. Page 37
Sample: Response to an Open Records Request December 8, 2015 Joe G. Smith 123 Valley Drive Atlanta, Georgia 30303 RE: Your Open Records request, received December 4, 2015 Dear Mr. Smith: I am writing in response to your request for records, which the Attorney General received on December 4, 2015. You made the following request: 1. All emails, documents and records that have the following names in the body, subject or title that have been sent to and or received from any person directly or indirectly since January 1, 2015: Patrick Flanagan, Patricia Flanagan 2. All emails, documents and records that have the following names in the body, subject or title that have been sent to and or received from any person directly or indirectly since January 1, 2013: Water Department, Facilities Department We searched our document server, which contains letters, spreadsheets, and other types of files, for all the keywords that you provided. We found one document that was responsive to your request for documents containing the search term Patrick Flanagan and another containing Patricia Flanagan. Those two documents are enclosed. We searched our case management system, which tracks the physical files that we have opened. One of those files contained a letter with an attachment matching the search term Water Department; that letter and attachment are enclosed. We searched our email server for all the keywords that you provided. We have located approximately 870 emails that may be responsive to your request, but many of them appear to be duplicates. I estimate that it will take 5 days to go through the emails that we have located, eliminate any duplicate records, and redact any information that may need to be withheld. I expect that some records may be withheld pursuant to O.C.G.A. 50-18-72(a)(41) [Attorney-client privilege] and 50-18-72(a)(42) [Confidential attorney work product]. If any other exceptions are relied on after the records are reviewed, I will provide those statutory provisions. I estimate that it will take approximately 5 hours to review and redact the records. At an hourly rate of $17.50 for an administrative assistant to do the work, the approximate cost would be $87.50; that amount will vary based on the actual number of records and time required. Page 38
If printouts of the records are provided, at a cost of 10 per page, I estimate the copying cost will be $20. If you would rather have the records scanned and burned onto a CD, please let me know; the cost for that will be less than $5.00. I think that the number of pages will be too large for us to email the records, but I will let you know if that turns out to not be the case. Therefore, I expect the total cost to be approximately between $92.50 and $107.50. Please let me know if you would like us to proceed with assembling and providing you with the remaining records that we have located. Sincerely, JENNIFER COLANGELO Assistant Attorney General Enclosure Page 39
Calculating Costs Agencies are not required to charge a fee. Many agencies will waive fees if the amounts are small, in order to avoid the administrative work of collecting the fees. Costs on letter or legal sized paper are 10 cents per page if copies are made. For copies of CDs, DVDs, videotapes, etc., the actual cost of producing the copy can be charged. When calculating the cost for time spent retrieving records, the first 15 minutes are free. O.C.G.A. 50 18 71(c)(2). In addition, the agency may charge for the search, retrieval, redaction, and production or copying costs for the production of records. The rate charged for time is 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 with the first 15 minutes free. The agency must utilize the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents. If more than one person works on a request, then the cost should be calculated using the hourly rate for each person. For example, an IT person with a high hourly rate may be needed to retrieve the requested records, but an administrative assistant with a lower hourly rate can make copies and mail the records. O.C.G.A. 50 18 71(c)(1). Costs for Certified Copies The Open Records Act says: Where fees for certified copies or other copies or records are specifically authorized or otherwise prescribed by law, such specific fee shall apply when certified copies or other records to which a specific fee may apply are sought. Therefore, you may only charge an extra fee for certified copies if there is a statute that specifically allows your agency to do so. There are a variety of places that the fees might be provided, depending on which agency has the records. O.C.G.A. 50 18 71(c)(1). For example, O.C.G.A. 31-10-27 says that the state shall prescribe uniform fees to be paid to the State Office of Vital Records, local registrars, and local custodians for certified copies of [vital records]... The fee for each search or service, certified copy, or record shall be determined by the board. So if your agency maintains copies of birth certificates or marriage certificates, you would need to check with the State Office of Vital Records to see what fees you are allowed to charge. Page 40
Flat Fees The Open Records Act does not generally allow flat fees to be charged for the production of records. Fees must be based on the actual cost of producing the records. However, there may be other sections of law that allow a flat fee to be charged such as the $5 fee for accident reports, or the $10 fee for dash-cam and body-cam videos. Prepayment and Non-payment The agency may not require prepayment of estimated costs unless the estimated cost is $500 or more. The agency may require prepayment if a requester did not pay for a previous request where the costs were properly estimated. If an agency requires prepayment, and the actual final cost is less than the amount prepaid, the agency must refund the overpayment. Some agencies ask for 50% of the estimated cost to be prepaid, in order to avoid the administrative work of refunding overpayments. If a requester refuses to pay properly estimated costs, the agency may enforce payment like an unpaid tax. O.C.G.A. 50 18 71(d), O.C.G.A. 50 18 71(c)(3). Non-Existent Records An agency does not have to provide records that do not exist at the time the request is made. A request cannot be made in advance for records that will exist in the future. O.C.G.A. 50 18 71(j). An agency does not have to compile records, create spreadsheets, or create summaries that don t already exist. For example, if a request is received for a list of the years that each employee was hired, then the requester should be informed that the response will be a copy of a document from each individual s personnel file that shows that information. Page 41
Sanctions Violations of the law can lead to a $1000 fine for a first violation and a $2500 fine for each additional violation within 12 months. The standard for a civil violation is negligence. The standard for a criminal violation (a misdemeanor) is willfulness. Attorney s fees may also be awarded. Page 42
http://www.gmanet.com/gmasite/media/pdf/publications/openrecords.pdf Page 43
http://law.ga.gov/open-government Page 44
www.accg.org Page 45
ORA Exceptions Located Outside the Act Page 46
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