*1 timеly despite objection counsel, in this case sentation supra, 352-353.] thus, [Wilson, 257 Ga. at reverse. we alleged Although discussed therein involved Wilson and the cases equal representation, apply joint arising the rules from conflicts representation arising alleged defense counsel’s conflicts force to prosecution Isrаel, See LaFave & in unrelated matters. witness of Criminal Rep (1984);Lowenthal, 2, § Procedure, Successive Vol. 11.9 (1983); Lawyers, By 1, Lever L.J. 40-41 Criminal 93 Yale resentation sen v. (1-4) Orange County, Superior 755, 668 P2d 758-760 Court 1983). (Cal. case, counsel’s statements to the trial
In the instant defense loyalties facing conflicting counsel. We con- defense established proceed requiring defense counsel the trial court erred clude representation Mitchell, and we therefore reverse. with his Judgment except concur, Hunt, J., All the Justices reversed. only. judgment who concurs in the
Decided June appellant. Flanders, Flanders, Jr., for Larsen & H. Gibbs Craig Ralph Attorney, Walke, Fraser, L. H. District Assistant Attorney, Attorney Benja- Bowеrs, General, C. A. District Michael J. appellee. Woolf, min for et v. ATLANTA & ATLANTA
S91A0488.DORTCH al. JOURNAL al.
CONSTITUTION et Justice. Fletcher, Appellant Dortch is of the Bureau of General Ser- the Director (the City “city”). May pursuant In vices for the of Atlanta (the “act”), seq. appel- Act, the lees, OCGA 50-18-70 et requested Constitution, The Atlanta Journal The Atlanta appellants provide аll bills them with 1990 cellular paid by city. provided
Appellants all from them the documents but deleted city telephones. Appellants numbers called from cellular assigned city telephones also deleted the numbers but did place the amount the name bill each such beside who used it. responded
Appellees by filing seeking act, аn in- suit under the junction require appellants provide docu- that would unredacted Appellants ments. See OCGA 50-18-73. no evidence offered application injunction argue but did that deletion city telephones necessary all numbers called from of order to might interests of who numbers un- have assigned listed numbers.1 also maintained prohib- were deleted because it would become itively expensive permitted if members of the were to call *2 telephones. officials such The trial court concluded that the docu- ments were not from the act for to of the reasons asserted appellants appellees provide and ordered with unredacted docu- ments. Appellants argue consolidating that,
1. absent an order the issues authority provide permanent trial, for following the trial court lacks relief interlocutory injunction. an OCGA 9-11-65 How- interlocutory hearing, ever, where there of is notice an a trial court parties reach a final determination the issues if the do not object acquiesced. or have appellants The record here demonstrates that had notice of the during hearing, that, the trial court indicated that it appellees. in intended to rule ing, appellants’ favor of At the conclusion of the hear- inquired attorney “making whether the trial responded this a final dеcision.” The court that it was and objection. appel- circumstances, made no lants trial court did not Under these we hold that acquiesced in the court’s decision on the merits. Therefore the permanent granting
err relief. question subject concede that the documents are (a). appel- However, to disclosure under the act. OCGA 50-18-70 city lants assert that the numbers of called on cel- telephones properly expunged lular bers were num- because some of the might unlisted their disclosure would amount to privacy. invasion of Appellants argue documents fall within the exemption records, “the disclosure of which would be an invasion pеrsonal privacy.” of invasion of We have held that personal privacy encompassed by exception such is to be privacy. determined an examination of the Ath- tort of invasion (263 128) (1980). ens Observer v. Anderson, 245 Ga. How- 63 SE2d inquiry “legitimate ever, the is not meant to exclude into operation government employed by the Id. at of а those it.” institution and Enterprises, 66; Harris v. Cox 256 Ga. 301-302 SE2d 448) (1986). city attempted stated that it had determine which of the numbers called However, were unlisted. Southern Bell informed provide it would such information each unlisted absent consent of the whom assigned. number was protects, alia, inter to be of invasion of The tort ‘“ “publicizing publicity as from the as well unwаrranted free from legitimate private has no con- affairs with which the one’s ’ ” Napper Co., v. Ga. Television cern.” 640) necessary recovery are at least three elements There privacy: of one’s an invasion (a) (b) disclosure; must be a facts the disclosure private, must be se- the facts disclosed to (c) public оnes; facts and not matter cluded or secret objectionable to a must be offensive and ordinary reason- made sensibilities under circumstances.” man of able Hipsley, App. [367, v. Cabaniss (1966)]; Napper, supra at 160-161. publication of num- if we hold that unlisted
Even were to say, private facts, we cannot involved disclosure of secret bers2 presented here, that such disclosure would be so the circumstances objectionable to man as to constitute the offensive or a reasonable privacy. Therefore, we affirm trial hold- invasion of court’s tort of *3 exempt ing are not from disclosure under that the records § they required Appellants arguе that should not be to make public assigned the because “it magnitude incoming impossible calls,” the and would be control telephone bills. While understand this could result increased we potential problems the financial that disclosure of the cellular tele- phone presently create, there is for such numbers could no Any remedy the must come from the General records under act. such Assembly. appeal appellants argue court,
4. In their
to this
the first time
may
sought
be
that there is a likelihood that some of the numbers
from disclosure under OCGA 50-18-72
they
inter-
maintain that
locutory
did not
this issue at the
on the
raise
they
anticipate
injunction
did
the trial
because
not
following
hearing. However,
issues
would enter a final order
the
in the
will
first
raised
trial court
not be considered for the
time
585) (1986);
appeal.
County,
Vickers v.
The
Constitution draws a balance between the state’s
duty
and welfare of its citizens and the individ-
right
ual’s
to be free from excessive state intrusion into his
Georgia
affairs. See Preamble to the
Sec. Par. I.
I,
Constitution of
and Art.
Although
guaranteeing
accountability
I,
is an im-
portant
may
interest,
state
that interest
not be used to overwhelm the
example, combatting
individual. For
crime is fundamental to our con-
cept
society.
requires
so,
of ordered
our
Even
criminal law
the state to
guidelines
act within certain
before an individual’s
infringed.
require
police
We
to obtain a search warrant
procedures
installing pen register,
and to follоw certain
before
a
a de-
phone
incoming
outgoing
which
vice
records the
numbers of both
16-11-60;
State,
calls. OCGA
Ellis v.
telephones, claiming legitimate that has a interest in know- ing They who officials and others call. cite Athens v. Observer 128) (1980), Anderson, 245 for the idea that privacy, protectable only “[t]he . tort. . extends unnec- essary public scrutiny.” Assuming argument for the sake of appellee’s legitimate, majority stated interest is fails to *4 privacy required by Griffin-Spalding the interests of individuals as County Hosp. WKEU, Auth. v. Radio Station 240 Ga. 196) (1978). Griffin-Spalding, recognized public’s In this Court the right private public to see certain records but ruled that where and requires sepаrate mixed, information are the statute to a custodian only the two to and release the The Court information. inter- preted requiring open § 40-2701, statute, Code Annotated the former as preserve a of “custodian records to the confidential- ity appellants’ right of information that the does to see.” The not have а by supra Griffin-Spalding, actions are authorized at separating “[t]he which held manner of is left to this information optional; public agency.” is not it is The deletion of the discretion the revealing per- by Griffin-Spalding, which holds that also in mandated liability privacy. for invasion of tort can lead to sonal information3 personal telephone unpublished infor- number is and An unpublished majority any opinion, city-subscribed of an the holder mation. Under number who is tomatically telephone is cellular au- called a confidentiality no of his number. There is robbed of the police particularly objectionable officer, in the case of a This is notice. who is on call rеquired day give been to 24 hours a and well have supervising phone for contact the line of number his officer his to duty. using telephone home, him at his If calls an official cellular telephone publicly personal his available without number becomes knowledge. consent or privacy duty the of the to
This Court a constitutional рrivacy Georgia. “The within certain the of citizens of State right. guaranteed this the consti- to State limits is a tutions of Georgia. . . .” the the United States and of State England Co., 122 SE v. New Ins. Pavesich Life today’s opinion is that member the The real result of personal general public, including felons, the access convicted including citizens, our offiсers unlisted numbers of required person’s home receive families. All that is is that a and their phone. especially city-subscribed This is troub- from a call pay ling many police light of the fact that officers order and unpublished telephone their families order to effectively Today’s opinion officers, from harassment. denies these attempts others, their and shield their families and homes from intrusion. their and frustrates city’s Additionally, giving public, the release of the telephone numbers, and the means to call officialsat will purpose. city’s expense has al- serves no conceivable ready complied by releasing with the Act names accounting of the оfficial users of each cellular adequately expenses pro- This of each of those individuals. pub- expenditure vides the with the means “evaluate supra Observer, lic Athens funds.” at 66.
Revealing nothing will do improve public’s ability government or with the to communicate “personal Assembly specifically exempt information” from General saw no need to previous OCGA by such information 50-18-72 as statute had been construed eliminate judicial Griffin-Spalding subsequent change construction. amendments did not statutory presumed “It be enacted is a well settled canon of construction statutes are Owens-Illinois, legislature existing knowledge Hart v. law.” 462) (1982).
355 government expenses oрen to monitor will but leave officials to city treasury open harassment and the to unchecked If costs.4 appointed officials, is one access to elected and easily published are numbers, officials accessible their office most of the officials have listed residential numbers as well. pressing keep hаve even more reasons to their cellular drug suppression squad, special numbers confidential. The
agents, city-subscribed Georgia Investigation and other branches of the Bureau of use Among in their official duties. informants, those duties are contact with confidential coordination among Allowing activities and maintenance of contact team members. general public, pranksters, including clog the lines these confidential may seriously impair police’s ability communicate, re- spond public’s safety. calls, and insure the Finally, today’s protect, required by, law, decision fails to as safety agents, informants, lives and undercover and others who endаngered by be a blanket disclosure of records. (a) (3) explicitly § OCGA 50-18-72 states that such information ex- is empt yet disclosure, from the Court refuses to review this issue. This promote error, is a State, Court correct not it. Miller v. 642) (1990) (Smith, very dissenting). 191, 197 J., P. At the given jeopardy places agents least, in which disclosure undercover unambiguous legislative informants, and the intent to shield such persons, by enforcing this Court should them OCGA 50-18- (a) (3). dissenting. Justice, Benham, majority opinion, I Because take issue with Division of the I must dissent.
While it is true that did not raise the trial court5 sought by appellee the concern that some of the exempt (a) (3),6 from disclosure under OCGA 50-18-72 I interesting Assembly exempted compli It is to note that the General itself from provisions ance with certain of Records Act. OCGA § 50-18-72 While Geor gia history legislative why legislative given, has no official to show a rea reading on-going sonable would be that crucial and need to be confidential discussions protected jeopardize positions so negotiating as not to sensitive business transactions and equally apply undertaken for the benefit. This rationale could officials. 5 Appellants they maintain the issue was not raised in the trial court because did ’ anticipate, hearing equitable injunction, on the final that the trial court would enter a following transcript hearing. hearing order that after the trial court reflects findings mаde tendance, participants oral of fact and conclusions of for their at law and thanked the query attorney making she affirmed the that she a final decision the case. (3) (a) exempts compiled law disclosure. require justice expand us to traditional interests of believe standard procedure appеllate the trial remand this case to rules and specific telephone whether to determine for a § 50-18-72 under OCGA from disclosure are Assembly en- subsection to law enacted the The General physical sources, whose lives confidential officers’ forcement might *6 endangered of of if were disclosed release their idеntities to the potential gravity public. to the Due law enforcement this issue and protection was to those whom the Act in order to afford protect, I the case to the trial court would remand intended subject are statuto- which to demonstrate allow (3) (a) rily exempt disclosure. under subsection 21, 1991. Decided June Ewing, Dempsey, Jr., Hаrris, Monica E. Mitch- J. Joe M. Alford appellants. Coleman, ell V. for Carolyn Forrest, Dow, Albertson, Y. Terrence B. Lohnes & appellees. Canfield, Adamson, C. for Peter v. THE STATE. S91A0532.STEPHENS (405 SE2d Justice. Fletcher, visiting evening August 1988, 11, Linda in with Butler was On Stephens angry Betty Stephens the trailer where lived. became briefly. Stephens into another Butler and the two scuffled room then went handgun, trailer, killed returned with a and shot and felony Stephens aggravated mur Butler. was convicted of assault merged aggravated der. The trial court assault conviction imprison felony Stephens to life that of the ment murder and sentenced felony Stephens appeals affirm. and we murder. Stephens error, 1. In her contends that thе first enumeration of enforcement identity Stephens one case was tried decision, felony count of motion and the The crime occurred of a confidential persons. murder conviction. was denied on felony without . murder, appeal . . purposes . murder and jury oral one count of docketed on source оn argument, to the extent July 18, July August Stephens aggravated . . . which in this court felony murder, 1990. 11, 1988. On October filed motion for new trial March Stephens’ would assault and the trial court 20, production on 1989. endanger January and one count of notice On of such 11, 1988, July appeal 1991. The case life or 20, 1989, records would disclose the Stephens on aggravated was filed on physical imposed August jury was submitted 18, assault. The sentence indicted on August convicted 15, on