Lead Opinion
The dispositive question in this appeal is whether certain documents prepared by appellee Georgia Department of Transportation (hereinafter DOT) are exempt from disclosure under the Open Records Act, OCGA Ch. 50-18, Art. 4, as “secrets of state,” OCGA §
Appellant the Hardaway Company is a construction company which was DOT’s general contractor for work on the Talmadge Memorial Bridge in Savannah. After a dispute developed between appellant and DOT concerning claims for payment, appellant filed suit against appellees, seeking an injunction to compel appellees to disclose documents pursuant to the Open Records Act. The documents, which are collectively identified as the “Engineer’s Cost Estimate” (hereinafter ECE), were generated by DOT as part of the process of evaluating bids for work on the bridge. The documents include a list of the costs that formed the basis of DOT’s estimate, and supporting calculations. The trial court granted summary judgment to appellees and denied appellant’s cross-motion for summary judgment. In support of its judgment, the court found that compelling disclosure of the ECE would be contrary to the publiс interest because it would reveal the methodology and formulas DOT used in arriving at the ECE, and thereby would compromise the bidding process for future projects by impairing DOT’s ability to evaluate bids. Appellant appealed the judgment.
1. We begin by outlining the steps in analysis of Open Records Act cases. OCGA § 50-18-70 (b) provides that
[a] 11 state . . . records, except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.
Another statute, OCGA § 50-18-72, sets forth a list of instances in which disclosure of public records is not required, but the list is not exhaustive, as prohibitions or exemptions from disclosure may be found in other areas of the code, see generally Napper v. Ga. Television Co.,
In suits under the Open Records Act, the first inquiry is whether the records are “public records.” Napper, supra,
Section 24-9-21 states that “[t]here are certain admissions and communications excluded on grounds of public policy. Among these are: . . . [sjecrets of state. . . .” Section 24-9-27 (d) provides that “[n]o official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.” For the following reasons, we decline to construe either of these statutory privileges as exempting public records from disclosure.
2. The term “secrets of state” in § 24-9-21 (4) is not defined therein, but a common definition of the term is that it refers to matters of national security, such as military and diplomatic information, see generally 81 AmJur2d 537, Witnesses, § 533. However, it is apparent that this definition cannot be the legislatively intended meaning in the Georgia Code, as a close variant of thе term, “confidential state secrets,” has been used in statutes that concern subjects at a lower level than national or state security, see OCGA § 42-5-36 (confidentiality of information supplied by inmates to the Department of Corrections);
(a) The key to determining this question is found in § 50-18-72, which “directs a narrow construction of its exclusions, exempting ‘only that portion of a public record to which an exclusion is directly applicable.’ [Cit.]” Bd. of Regents, supra, 259 Ga. (3b) at 215 (quoting former § 50-18-72 (f), now § 50-18-72 (g)). This direction is by its terms applicable only to the exemptions listed in § 50-18-72, but we find that it would be incongruous were the same standard of narrow construction not apрlied to exemptions found in other parts of the Code. Moreover, § 50-18-70 (b) requires that all public records shall be disclosed except those which “by law are prohibited or specifically exempted from being open to inspection by the general public.” (Emphasis supplied.) Accordingly, we conclude that any purported statutory exemption from disclosure under the Open Records Act must be narrowly construed.
3. The remaining question is whether under § 24-9-27 (d) the ECE is exempt from disclosure as a “state matter [ ] of which the policy of the state and the interest of the community require concealment” (hereinafter “the state matter exemption”). This specification may be intended as an еxpression of the concept of “executive privilege,” see 81 AmJur2d 537, Witnesses, § 534, but, as with the term “secrets of state,” the state matter exemption is not defined in the statute itself. It has been judicially construed as authorizing “the nondisclosure of the identity of an informant upon whose information an arrest or search is based [сit.],” Chancey v. Hancock,
(a) The difficulty with applying the state matter exemption to withhold the ECE from disclosure is that doing so would be inconsistent with Bd. of Regents, supra,
there is no claim on behalf of any individual оf an invasion of personal privacy [fn.]. It is not a personal right to privacy that is urged upon us, but rather a corporate preference for privacy, which is considered to be desirable for the efficacious administration of a public function. [Bd. of Regents, supra,259 Ga. at 217 .]
(b) We have noted the special concurrence of Justice Fletcher, and we are in agreement with him to the extent that he finds that thе public interest in exempting ECEs from disclosure until projects are completed or abandoned outweighs the public interest in favor of disclosure. However, unlike the author of the special concurrence, we do
(c) Accordingly, we hold that the state matter exemption may not be applied in the present case, as allowing such an exemption would serve to disregard the rule of Bd. of Regents.
4. For the foregoing reasons, the ECE does not qualify for exemptiоn from disclosure under the Open Records Act either as a “secret of state” or a “state matter.”
Judgment reversed.
Notes
Section 42-5-36 provides that
(a) Officials and employees of the department [the Department of Corrections] shall respect the confidential nature of information supplied by inmates who cooperate in remedying abuses and wrongdoing in the penal system. Any official or employee whо breaks such a confidence and thereby subjects a cooperating inmate to physical jeopardy or harassment shall be subject to suspension or discharge.
(b) Investigation reports and intelligence data prepared by the Internal Investigations Unit of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner.
(c) All institutional аnd inmate files and central office inmate files of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner; provided, however, these records shall be subject to subpoena by a court of competent jurisdiction of this state. [Emphasis supplied.]
Section 42-9-53 provides that
(a) . . . .
(b) All information, both oral and written, received by the members of the board in the performance of their duties under this chapter and all records, papers, and documents coming into their possession by reason of the performance of their duties under this chapter shall be classified as confidential state secrets until declassified by a resolution of the board passed at a duly constitutеd session of the board; provided, however, that the board shall be authorized to disclose to an alleged violator of parole or conditional release the evidence introduced against him at a final hearing on the matter of revocation of parole or conditional release.
(c) No person shall divulge or cause to be divulged in any manner any confidential state secret. Any person violating this Code section or any person who causes or procures a violation of this Code section or conspires to violate this Code section shall be guilty of a misdemeanor.
(d) . . . All records and documents which were public records at the time they were received by the board are exempt from subsection (b) of this Code section. All information, reports, and documents required by law to be made available to the General Assembly, the Governor, or the state auditor are exempt from subsection (b) of this Code section. [Emphasis supplied.]
Section 16-11-9 provides that
[t]hе Attorney General shall require the special assistant to maintain complete records of all information received by him and all matters handled by him under the requirements of this part. Such records as may reflect on the loyalty of any resident of this state shall not be made public or divulged to any person exceрt with permission of the Governor or the Attorney General to effectuate the purposes of this part. All such records shall be classified as confidential state secrets until declassified by the Governor or the Attorney General. [Emphasis supplied.]
We note that this holding in no way forecloses the General Assembly from amending § 50-18-72 to exempt engineering estimates for construction transactions.
Concurrence Opinion
concurring specially.
OCGA § 24-9-27 (d) provides: “No official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.” The community’s interest in competitive prices requires concealment of the statе’s estimate of a public project’s construction costs. Sealed bids on public construction projects are essential to ensure the integrity of the bidding process and to bar cronyism and corruption. Therefore, I conclude that the exception for state matters precludes disclosure of the engineer’s cost estimate prior to the completion of any state construction project.
1. This court has interpreted the Open Records Act as requiring a balancing of the public interest in favor of inspection against the public interest in favor of non-inspection. Houston v. Rutledge,
The state matter exemption, like other exemptions to the Open
Although the majority opinion cites Board of Regents v. Atlanta Journal & Const.,
2. Moreover, I disagree that the General Assembly must amend OCGA § 50-18-72 to exempt the engineering cost estimate in this case. See p. 636, supra, n. 4. Engineering estimates relate to the costs of constructing improvements on real estate, whether the state presently owns the property or plans to acquire it. I would hold that engineering estimates for construction projects are exempt under § 50-18-72 (a) (6) until the state completes or terminates the construction project.
I am authorized to state that Justice Hunt joins in this special concurrence.