Georgia’s Open Records Act has now been revamped with the Governor’s signature on a 42-page bill that overhauls the existing law.

The long-overdue need to harmonize settled case law with the statutory scheme, a desire to stiffen the penalties imposed on violators, and an attempt to increase Georgia’s competitiveness in attracting new businesses were some of the primary policy considerations driving the update.

Governor Nathan Deal signed House Bill 397 on April 17, 2012, and it took effect immediately. 

Some of the key changes to the Act are as follows:

Changes Related to Open Meetings

 What Constitutes a “Meeting”

“Meeting” is defined by the new act as the gathering of a quorum of members or a quorum of any committee where “any official business, policy, or public matter of the agency is formulated, presented, discussed, or voted upon.” But, the new Act carves out several instances in which such a gathering does not constitute a “meeting” so long as no official business is discussed or official action taken and the primary purpose of the meeting is not to evade the Act’s requirements: (1) gathering to inspect physical facilities or property under jurisdiction of the agency; (2) gathering to attend certain types of meetings, seminars, or training courses on matters related to the agency’s purpose; (3) meeting with state or federal legislative or executive officials; and (4) gathering for social ceremonial, civic, or religious events.

Notice of Regular and Special Meetings

Even the former version of the Act required agencies to give notice of regular meetings, but the new Act requires agencies to post notice at least one week in advance—both at the regular place of the agency and on the agency’s website. Notice of special meetings still must be given, at least 24 hours in advance, to the appropriate county legal organ or to a general circulation newspaper. However, the new Act requires that when such notice is given, the organ or newspaper must make the information available upon public inquiry. Upon the legal organ’s or newspaper’s request, the agency also must provide a copy of the meeting agenda.

Agendas and Minutes

The old law required agencies to make agency meeting agendas available prior to meetings. The new law expands on that to require committees to release their meeting agendas as well. Likewise, minutes now must be kept for both agency and committee meetings, and must include the names of individuals making and seconding motions and other proposals. The new Act also requires agencies and their committees to record the minutes of executive sessions and preserve them for potential inspection by a court should any dispute later arise regarding the propriety of any executive session. Executive session minutes will not be open to the public, however.

Attendance of Members at Meetings

The new Act allows agencies not otherwise permitted to conduct meetings via teleconference to do so in emergency situations involving public safety or the preservation of property or public services. And, particular members may participate in any meeting via teleconference so long as a quorum of members is present for the meeting. However, absent emergency or health reasons, no member is allowed to participate by teleconference more than twice in one calendar year.

When Executive Session is Permitted

Both the former and new Acts outline a handful of topics that agencies may discuss in executive session. For example, agencies previously could enter executive session when discussing the “future acquisition of real estate.” The new Act clarifies this general language by permitting executive session when discussing or voting on negotiations to purchase, dispose of, or lease property, the ordering of an appraisal related to the acquisition or disposal of real estate, or entering into a contract or option to purchase, dispose of, or lease real estate. Executive session also now may be used when discussing or voting to authorize the settlement of a legal dispute. Several other bases for executive session are provided by the new Act, and agencies should review them to ensure compliance. If, during executive session, a member initiates an unauthorized discussion, the new Act requires the presiding officer to end the discussion or adjourn the executive session.

Exemptions

Under the former version, only staff meetings held for certain investigative purposes, deliberations of the State Board of Pardons and Paroles, and law enforcement and grand jury meetings were wholly exempt from the Act. The new Act adds several exemptions, including formal mediations, certain meetings of public hospital staff or authorities, incidental conversation unrelated to agency business, and e-mail communications among agency members.

Changes Relating to Open Records

Presumption in Favor of Inspection

The legislature added language to the new Act declaring a “strong presumption” that public records should be made available for inspection without delay, stating that the portion of the Act pertaining to public records shall be broadly construed to allow inspection, and stating that any exceptions provided by the Act shall be interpreted narrowly.

Costs

Previously, agencies could charge a 25-cent-per-page copying fee; now, they can charge 10 cents per page for letter/legal sizes and can pass along their actual costs for other sizes and any media on which electronic records are provided. Where the cost of any copy job is expected to exceed $25, an agency can defer search and retrieval until the requestor has agreed to pay the total amount, and where the cost exceeds $500, an agency can require prepayment. Additionally, if a requestor fails to pay for copied records, an agency now may require that requestor to prepay for future requests made before the requestor pays for the unpaid copies.

Electronic Record-Keeping Systems

The Act’s former version said little to nothing about electronic records, but the new Act provides detailed parameters related to requests for records maintained electronically. For example, agencies must provide electronic or printed copies of electronic records using the computer programs that the agency uses. Individuals may request production in the format in which the agency keeps the record or in a standard export format such as ASCII. Alternatively, an agency may provide access to records via a website accessible by the public.

Exceptions

The new Act lists 47 types of records that do not have to be disclosed to the public. Many of the exceptions were carried over from the former version, but there are also many notable additions and alterations. For instance, the new Act provides broader protection to individuals’ private information, requiring redaction of information like personal e-mail addresses and cell phone numbers in addition to more traditional types of excepted data like Social Security numbers and bank account information. The new Act also now provides an exception for documents pertaining to economic development projects until the projects are secured by binding commitment. The economic development exception is expected to make Georgia more competitive with other states when courting new businesses and projects. Previously, competing states could view the incentives offered by Georgia, giving them an advantage in the process.

Enhanced Penalties for Violations

The new Act also provides stiffer penalties for violators of rules related to open meetings or records. Knowing and willful violators now will incur a $1,000 fine upon conviction (as opposed to the previous $100 fine for Open Records and $500 fine for Open Meetings violations). Alternatively, a court may impose a civil penalty on negligent violators of up to $1,000 for the first violation. For each additional violation committed within 12 months of an initial violation, a maximum $2,500 fee may be imposed. The new Act also includes a reminder that agency members who destroy records for the purpose of preventing disclosure may subject themselves to a felony conviction and two to 10 years in prison.

Given the heightened penalties now imposed for violations, agencies should take this time to review their current policies and procedures related to meetings and records. Agencies that do not have formal policies and procedures should carefully review the new Act and put them in place. Members and appropriate employees should be trained to ensure compliance. Agencies also should be vigilant to protect any information that may be exempt from the Act or protected by a privilege such as the attorney-client privilege. This becomes especially important when faced with requests for electronic records, as review and redaction from electronic databases of information not required to be disclosed often can become burdensome and costly.

The attorneys at Ballard Spahr LLP’s Atlanta office are familiar with the parameters of the new law and can help agencies update their existing policies and procedures, develop new ones, and/or provide training on compliance with the new law. We also can help agencies navigate the potential pitfalls of responding to records requests, particularly where those requests are voluminous or involve sensitive matters.

For more information about the changes to Georgia’s Open Records Act or for assistance in complying with the new law, please contact Byung J. Pak at 678.420.9344 or pakb@ballardspahr.com, Han C. Choi at 678.420.9308 or choih@ballardspahr.com.

 


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