303 Ga. 828
Ga.2018Background
- CCRF contracted with a Kennesaw State University researcher; the researcher signed a confidentiality agreement with CCRF but KSU/the Board did not. CCRF objected to public disclosure of the researcher’s correspondence with CCRF.
- CFA submitted an Open Records Act request to KSU seeking the researcher’s correspondence and related records to educate the public about funding sources for the study.
- KSU notified CCRF of its intent to disclose; CCRF sued the Board seeking a declaratory judgment and injunction that the records were exempt under OCGA § 50-18-72(a)(35) and (36).
- Trial court ruled KSU could disclose records at its discretion (did not decide whether exemptions applied) and stayed disclosure pending appeal; Court of Appeals reversed based on its reading of Bowers v. Shelton.
- Supreme Court granted certiorari to resolve whether ORA exemptions listed in OCGA § 50-18-72(a) categorically prohibit disclosure (i.e., create mandatory nondisclosure) or merely exempt records from mandatory disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORA exemptions in OCGA § 50-18-72(a) categorically prohibit disclosure of covered records | CCRF: "shall not be required" means "prohibited"; any record falling under an exemption cannot be disclosed | Board/CFA: Exemptions free agencies from a duty to disclose but do not automatically forbid disclosure; some exemptions expressly prohibit disclosure and others do not | Court held exemptions generally relieve mandatory disclosure but do not create a blanket prohibition; agencies may have discretion to disclose unless a statute/subsection expressly forbids disclosure |
| Whether Bowers v. Shelton requires nondisclosure of all exempted records | CCRF/Ct. of Appeals: Bowers mandates nondisclosure for records covered by ORA exemptions | Board/CFA: Bowers was narrower—it addressed records protected by independent statutes that expressly prohibit disclosure | Court disapproved the broad reading of Bowers; Bowers applies where another law expressly forbids disclosure, not to all ORA exemptions |
| Whether CCRF could sue to enjoin disclosure under the ORA | CCRF: entitled to bring an action to enjoin disclosure | Board/CFA: disputed practical effect but conceded standing to sue under ORA | Court reaffirmed that parties with an interest may sue under OCGA § 50-18-73(a) to seek enforcement, but victory depends on whether nondisclosure is legally mandated |
| Effect of allowing discretionary disclosure on confidentiality and contracts | CCRF: discretionary disclosure would destroy willingness to contract with public universities; private interests need protection | Board/CFA: contracts can secure confidentiality; many statutes and ORA subsections already prohibit disclosure of sensitive categories | Court: policy concerns are for the legislature; ORA doesn’t prevent agencies from contracting to keep records confidential, and other statutes already protect many sensitive records |
Key Cases Cited
- Bowers v. Shelton, 265 Ga. 247 (1995) (recognized right to sue under Georgia ORA and upheld nondisclosure where another statute expressly prohibited release)
- Harris v. Cox Enterprises, Inc., 256 Ga. 299 (1986) (interpreted earlier ORA language that expressly prohibited disclosure for certain categories)
- Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444 (1978) (ORA requires redaction, not maintenance of two separate records)
- Howard v. Sumter Free Press, 272 Ga. 521 (2000) (cited Bowers for mandatory nature of ORA compliance)