334 Ga. App. 425
Ga. Ct. App.2015Background
- In July 2012 Schick (editor of a student newspaper) submitted two open-records requests: one to Georgia Perimeter College (GPC) for records about a 282-person layoff and one to the Board of Regents (Board) seeking broad communications spanning months to years.
- GPC estimated costs (~$927.99) and required prepayment; Schick did not pay and GPC produced no documents for that request.
- The Board initially estimated very high production costs (~$2,536.29), later lowered after negotiation to $291; it then produced large batches (≈12,195 pages) on a rolling basis and later produced an additional 713 pages discovered months after production.
- The Board did not timely identify statutory exemptions it was relying on when withholding/redacting records as required by OCGA § 50-18-71(d); after suit it invoked OCGA § 50-18-72(a)(4) (pending-investigation exemption) as a basis to withhold some records.
- Trial court found the Board violated the Open Records Act for failing to designate exemptions, assessed a $1,000 penalty, but held the Board could withhold some records under OCGA § 50-18-72(a)(4) and denied attorney fees.
- On appeal the Court of Appeals reversed the trial court’s allowance of the (a)(4) exemption to the Board, ordered disclosure of records withheld solely under that exemption, and remanded to reconsider attorney fees in light of that ruling.
Issues
| Issue | Schick's Argument | Board's Argument | Held |
|---|---|---|---|
| Whether OCGA § 50-18-72(a)(4) (records "of law enforcement, prosecution, or regulatory agencies in any pending investigation") authorized the Board to withhold requested records | (Schick) The exemption does not apply to the Board; the Board failed to identify statutory authority timely and cannot broadly withhold records under (a)(4) | (Board) Even if not a law‑enforcement/regulatory agency, the Board may withhold documents that it compiled/possesses that are part of an ongoing criminal investigation (in cooperation with law enforcement) | Reversed: (a)(4) applies to "records of" specified agencies; cannot be read to cover any records merely related to an investigation or compiled by a nonlisted agency; Board may not withhold solely under (a)(4) |
| Whether Schick is entitled to attorney fees under OCGA § 50-18-73(b) for the Board’s alleged violations (including failure to designate exemptions and late production) | (Schick) Multiple violations were without substantial justification and warrant fee award | (Board) Late production and procedural shortcomings were substantially justified given volume, rolling review, and efforts to produce; other exemptions may apply | Affirmed in part and remanded: trial court did not abuse discretion in denying fees for the late 713-page production; but remand required to determine fees relating to records wrongly withheld under (a)(4) and any other exemptions properly invoked |
Key Cases Cited
- Singh v. Hammond, 292 Ga. 579 (discussion of appellate review standards for bench trials)
- Deal v. Coleman, 294 Ga. 170 (statutory construction principles: plain meaning and context)
- Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820 (statutory interpretation caution against forced constructions)
- Gordon v. Atlanta Cas. Co., 279 Ga. 148 (do not add to or vary unambiguous statutory language)
- Hardaway Co. v. Rives, 262 Ga. 631 (Open Records Act exemptions must be narrowly construed)
- Bd. of Regents v. Atlanta Journal & Const., 259 Ga. 214 (Open Records Act construed in favor of disclosure)