Lead Opinion
In 2005, Appellee Athens Newspapers, LLC submitted a request under the Open Records Act, OCGA § 50-18-70 et seq., to Appellant Unified Government of Athens-Clarke County, seeking police department records relating to the investigation of the 1992 rape and murder of Jennifer Stone. Despite extensive investigation, no one has yet been arrested or identified as a suspect, and investigators have not identified any new evidence for several years. However, the police department has not closed the investigatory file, but has instead utilized certain procedures with the potential to provide new leads in the case, including the submission of a report to the FBI’s Violent Criminal Apprehension Program and regular computerized checks of DNA profiles obtained from the crime scene against state and federal DNA databases.
Pursuant to the exemption from disclosure in OCGA § 50-18-72 (a) (4) for records in pending investigations and prosecutions, Appellant refused to produce any of the requested investigatory records other than the initial incident report. Thereafter, Appellee brought suit against Appellant, seeking an order for disclosure of the records. Appellee also alleged that the response to its request was untimely and that it was entitled to attorney’s fees and litigation expenses. On cross motions for summary judgment, the trial court granted summary judgment in favor of Appellant, finding as a matter of law that the investigation into Ms. Stone’s death is still pending and subject to exemption from disclosure under OCGA § 50-18-72 (a) (4), and that Appellant’s response to Appellee’s request was not untimely.
On appeal, the Court of Appeals reversed, narrowly construing that exemption, relying on Parker v. Lee,
1. The Open Records Act provides for the right of citizens to inspect public records, stating that,
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, [they] 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.
OCGA § 50-18-70 (b). Other than the specific statutory exemptions, this has been the law since 1959. Ga. L. 1959, p. 88, § 1. In 1976, this Court recognized the need for a strong “pending investigation” exemption:
Statements, memoranda, narrative reports, etc. made and maintained in the course of a pending investigation should not in most instances, in the public interest, be available for inspection by the public. However, once an investigation is concluded and the file closed, either with or without prosecution by the state, such public records in most instances should be available for public inspection. ... Generally, the public records that are prepared and maintained in a current and continuing investigation of possible criminal activity should not be open for public inspection. On the other hand, and again generally, public records prepared and maintained in a concluded investigation of alleged or actual criminal activity should be available for public inspection.
Houston v. Rutledge,
In 1988, the legislature codified the exemptions for pending investigations and prosecutions in OCGA § 50-18-72 (a) (4). Ga. L. 1988, pp. 243, 247, § 3. That subsection provides that the following are exempt from public disclosure:
Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated ....
OCGA § 50-18-72 (a) (4). This subsection was first construed in Parker, which “interpret[ed] the pending-prosecution exemption of OCGA § 50-18-72 (a) (4) to refer to imminent adjudicatory proceedings of finite duration.” Parker v. Lee, supra at 198 (4). In making that interpretation, this Court first looked to the rule of construction that “courts should construe statutes in connection and harmony with existing judicial decisions where possible. [Cit.]” Parker v. Lee, supra. Because Parker involved the “pending prosecution” exemption, the relevant prior case law consisted of Napper, and Parker did indeed “[c]onstru[e] § 50-18-72 (a) (4) consistently with Napper . .. .” Parker v. Lee, supra.
However, this case does not involve the “pending prosecution” exemption. Instead, its focus is on the “pending investigation” exemption. We cannot define the “pending investigation” exemption to the Open Records Act by simply adopting the judicial definition of the “pending prosecution” exemption in Parker. The prior case law which is relevant here is found in Houston. The portion of Houston quoted above was also quoted in Napper, supra at 162 (1) (a), and was the law at the time Napper was decided. Thus, Napper itself made a distinction between a pending investigation and a pending prosecution, and nowhere in Parker is that distinction questioned. It is clear, therefore, that, under Houston and Napper, an investigation is “pending” until it “is concluded and the file closed.” Under Parker, the exemption in OCGA § 50-18-72 (a) (4), if possible, should be construed consistently with this definition.
Although exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed “in derogation of its express terms . . ..” The Corp. of Mercer Univ. v. Barrett & Farahany,
The focus of subsection (a) (4) . . . is not upon the specific type of information contained in law enforcement and prosecution records. That subsection broadly exempts from disclosure the entirety of such records to the extent they are part of a “pending investigation or prosecution” and cannot otherwise be characterized as the initial arrest ... or incident report.
Atlanta Journal & Constitution v. City of Brunswick,
This definition is consistent with both Parker and the final clause of OCGA § 50-18-72 (a) (4), which incorporated the holding of Napper. Considered together, that clause and Parker stand for the proposition that a prosecution is pending until a conviction has been reviewed on direct appeal and no further direct litigation of an imminent nature and finite duration remains. After that time, a public proceeding has resulted in a decision which has reached a high degree of finality, and there is no basis for an exemption because the prosecution should not be considered to “remain undecided.” Similarly, a seemingly inactive investigation which has not yet resulted in a prosecution logically “remains undecided,” and is therefore “pending,” until it “is concluded and the file closed.” Only at that point has an investigation, in the absence of any prosecution, reached a decision with a high level of finality, even though it could possibly be reopened thereafter.
This analysis of the “pending investigation” exemption is not out of step with other jurisdictions, and is supported by the rationale underlying a strong exemption for investigations.
What public records can be inspected is often vitally affected by provisions exempting certain police records from a general public disclosure requirement. Where courts have been faced with the need to explicitly construe such exemption provisions, they have reached varying conclusions as to their scope. In a number of these cases, the courts discussed the need for such an exemption to assure effective law enforcement, or in recognition of the right to privacy of an individual whose name may be in such police records. In several of these cases, the courts have gone on to construe provisions exempting investigative files from public disclosure to extend to all such files, whether of pending, contemplated, or concluded proceedings....
Anno., 81 ALR3d 19, § 2 [a]. Some exemptions “apply even after an investigation has ended. [Cits.]” 76 CJS, Records § 126. See also Williams v. Superior Court,
Exempting each investigation which does not result in prosecution until it is concluded and the file is closed does not constitute an unreasonable public policy choice. As noted above, that policy protects the right to privacy of individuals named in investigative records and the integrity of investigations. It is a hard fact of law enforcement, of which the General Assembly was undoubtedly aware, that crimes sometimes remain unsolved for years until a break in the case, whether from a formerly reluctant witness or some new connection of previously seized evidence to a particular suspect. See Manley v. State,
The . . . files in question contain information known only to the murderer[ ] and a limited number of. . . investigative personnel. Police Department management has asserted a need to maintain the confidentiality of the investigative records on the ground that if access to materials is limited to police personnel, statements of witnesses and suspects and other evidence can be checked against information known only to investigators.
Contrary to the dissent, we do not “recognize[ ] that OCGA § 50-18-72 (a) (4) so greatly superseded the analysis in Houston that Houston no longer reflects valid Georgia law.” (Dissent, pp. 202-203.) Rather, OCGA § 50-18-72 (a) altered the holding of that case in only one respect. In Houston, supra at 766, this Court required the trial court to examine the particular investigative files and “balanc[e] the public interest in favor of disclosure against the public interest in favor of non-disclosure . . ..” With the subsequent addition of OCGA § 50-18-72 (a) (4), however,
[t]his approach cannot be followed . .. because the statute does not define or establish any guidelines to limit the scope of the exemption. The ongoing nature of the investigation naturally provides no basis to decide what is important. Requiring a law enforcement agency to segregate documents before a case is solved could result in the disclosure of sensitive information. The determination of sensitive or nonsensitive documents often cannot be made until the case has been solved. This exemption allows the law enforcement agency, not the courts, to determine what information, if any, is essential to solve a case. The language used in the statute protects law enforcement agencies from disclosure of the contents of their investigatory files.
Newman v. King County,
These provisions for [limited] mandatory disclosure from law enforcement investigatory files represent the Legislature’s judgment .. . about what items of information should be disclosed and to whom. Unless that judgment runs afoul of the Constitution it is not our province to declare that the statutorily required disclosures are inadequate or that the statutory exemption from disclosure is too broad. . . . Requests for broader disclosure must be directed to the Legislature.
Williams v. Superior Court, supra at 393 (II) (B). Therefore, the Court of Appeals erred in requiring the disclosure of the relevant records.
2. OCGA §§ 50-18-70 (f) and 50-18-72 (h) “ ‘require an affirmative response to an open records request within three business days.’ [Cit.]” Benefit Support v. Hall County,
The trial court here found as a matter of law that the starting time for compliance with the three-day requirement began when the employee in control of the requested police investigation records received Appellee’s request. That employee responded within three business days. However, several days before that employee’s receipt of the request, someone else at Appellant’s offices had signed a certified mail receipt for the letter containing the request.
Although OCGA § 50-18-70 (f) refers to the “individual” in control of the public
that agencies should not be allowed to circumvent the statute’s time restrictions through inaction or malfeasance. We find that construing OCGA § 50-18-70 (f) to mean that the agency must respond to an Open Records Act request within three business days after the agency receives the request is necessary to prevent governmental abuse and to uphold the purposes of the Act. Accordingly, because the undisputed evidence showed that [Appellant] failed to respond to [Appellee’s] Open Records Act request within three business days of receiving the request, the trial court erred in finding as a matter of law that [Appellant] did not violate OCGA § 50-18-70 (f).
Athens Newspapers v. Unified Govt. of Athens-Clarke County, supra at 472 (3). Appellant’s policy arguments, including that the three-day limit provides an unreasonably short time for large public agencies to process requests, are properly addressed to the Legislature.
Judgment affirmed in part and reversed in part.
Concurrence Opinion
concurring in part and dissenting in part.
This Court has repeatedly stressed that “[t]he very purpose of the Open Records Act ‘is to encourage public access to government information and to foster confidence in government through openness to the public.’ [Cit.]” Howard v. Sumter Free Press,
In Parker v. Lee, supra,
The factual circumstances reflecting a “pending” matter were far stronger in Parker v. Lee, supra, than in the instant case, given that an accused had been identified, an indictment had been obtained and evidence sufficient to support a conviction had been compiled. Had this Court construed OCGA § 50-18-72 (a) (4) using the strict dictionary definition the majority applies in this case, there is no question that the rape prosecution in Parker v. Lee should have been deemed “pending.”
The majority’s holding is wholly inconsistent with Parker v. Lee and its interpretation of “pending,” but the majority does not overrule this controlling precedent. It cannot do so because of the well-established rule that
[o]nce the court interprets the statute, the interpretation has become an integral part of the statute. This having been done, (over a long period of history) any subsequent“reinterpretation” would be no different in effect from a judicial alteration of language that the General Assembly itself placed in the statute. The principle is particularly applicable where an amendment is presented to the legislature and the statute is amended in other particulars.
(Citations and punctuation omitted.) Tiismann v. Linda Martin Homes Corp., supra,
Instead, the majority “distinguishes” Parker v. Lee on the basis that it deals with prosecutions, not investigations. That distinction is not supported by the plain language in OCGA § 50-18-72 (a) (4). Subsection (a) (4) exempts “[rjecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity.” The Legislature did not create one exemption for pending prosecutions and a separate one for pending investigations with this language. “Pending” is the crucial word in the exemption because whether or not a matter is “pending” determines when the exemption applies, not whether the pending matter is an investigation or a prosecution. The majority’s holding creates the anomalous result that the same word in the same statute is given two diametrically opposite meanings. “Pending” requires proof of definite and imminent action when it comes to prosecutions but no amount of proof of inactivity can ever suffice when it comes to investigations: only official closure of the file by the government authority in charge of the investigation can authorize access of the investigation information to the public.
Because nothing in the plain language of OCGA § 50-18-72 (a) (4) supports the majority’s creation of two separate exemptions, it turns to Houston v. Rutledge,
The majority holds that a criminal investigation is no longer deemed to be pending only when the investigative file is closed. Maj. Op., p. 196. Nothing in OCGA § 50-18-72 (a) (4) supports the majority’s holding that closing of the file is the exclusive means of proving that an investigation has ceased to be “pending” for purposes of the exemption. When this Court in Parker v. Lee explicitly construed the last phrase of subsection (a) (4) as “but one example” of when a prosecution is no longer included within the exemption, we recognized that each case must be assessed in light of its unique facts in order to determine whether the exemption applies. There may be instances in which the closing of the file is indeed the point at which the investigation ceases to be pending. But the majority’s “bright line rule” allows for no exceptions, even in cases such as this one. It is not setting an “arbitrary time limit” to recognize under the particular facts established by the record in this specific case that the ACCPD’s investigation into Jennifer Stone’s murder is no longer “pending.” It is uncontroverted ACCPD has made no arrests and, indeed, has never identified anyone as a suspect. No litigation or prosecution has been undertaken in the 16 years since the crimes were committed. In addition to this undisputed lack of progress on the case, the record reflects that there has
The majority’s bright line rule broadly construes an exemption this Court is obligated to construe narrowly. City of Atlanta v. Corey Entertainment, supra,
is particularly important, both because of the potency of the police power and because police abuse is the type of government corruption that the FOIA [and OCGA § 50-18-72 (a) (4)] ha[ve] been successful in allowing the public to see. .. . Law enforcement records require a heightened level of openness given the expansive nature of the police power and the primary motivation of open records laws. They enable the public to serve the “watchdog” function of making sure their law enforcement officials are serving the public interest. The Rodney King beating,. . . the shootings at Ruby Ridge, and the FBI’s actions at Waco all underscore this need.
Jamison S. Prime, A Double-Barrelled Assault: How Technology and Judicial Interpretations Threaten Public Access to Law Enforcement Records, 48 Fed. Comm. L.J. 341, 345, 368 (1996). Because I would interpret the pending investigation exemption in the Open Records Act in a manner that encourages governmental officials and agencies to remain accountable to the people of Georgia, I respectfully dissent to Division 1 of the majority’s opinion.
I am authorized to state that Chief Justice Sears and Justice Thompson join this dissent.
Notes
See Parker v. State,
That final phrase states that an investigation or prosecution “shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated.” OCGA § 50-18-72 (a) (4).
I agree with the Court of Appeals that neither the “availability” of crime analysts to assist in investigating a case in which no work is being done nor an “extensive review” of a police file establishes that an investigation remains pending.
Even should a DNA profile match be made, there is no evidence that disclosure of the investigative file will hinder any subsequent prosecution. See, e.g., Walker v. State,