Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, August 6, 2008

Georgia Supreme Court Rejects Newspaper's Request For Police Records Under Open Records Law; Investigation, Begun in 1992, Is "Pending"

Because a 1992 police investigation is categorized as pending, the Georgia Supreme Court has reversed an appellate court and denied a newspaper's request for access to the records of the investigation under the Georgia Open Records Act. Said the Court,

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."


Thereafter ... this Court articulated a "pending prosecution" exemption, adopting "the federal rule that a law-enforcement proceeding, to justify non-disclosure of a public record, must be an imminent adjudicatory proceeding of finite duration." ...

In 1988, the legislature codified the exemptions for pending investigations and prosecutions in OCGA § 50-18-72 (a) (4). 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. …


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.


It is not for this Court to set arbitrary time limits on how long an investigation can be kept open without tangible progress, when the legislature avoided any such time restrictions. Instead, the General Assembly made the legislative judgment that the only records in any pending investigations that must be disclosed in the public interest are "initial police arrest reports and initial incident reports. …"


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 record, the restrictive signification "private or natural person" is not necessarily inherent in the word "individual." Black's Law Dictionary, p. 696 (5th ed. 1979). Furthermore, both § 50-18-70 (f) and § 50-18-72 (h) refer to action, within three business days, by "the public officer or agency" in control of the requested records. A review of these statutes and the Open Records Act as a whole does not clearly indicate the legislative intent with respect to the starting point for the response time....However, "[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.]"... Appellee persuasively argued in the Court of Appeals that, if the response time begins only when the specific employee in charge of the records receives the request, "the agency would be able to extend the response time indefinitely, or even avoid sending the required response, by failing to forward the request to the appropriate employee in a timely manner after it has received the request." We approve the Court of Appeals' holding 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.

Read the opinion here.

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