Records & officials

The two laws

Georgia's Sunshine Laws are the Open Records Act (O.C.G.A. §§ 50-18-70 through 77) and the Open and Public Meetings Act (O.C.G.A. §§ 50-14-1 through 6). Both start from a presumption of openness: § 50-14-1(b)(1) states that "all meetings shall be open to the public"; § 50-18-70(a) declares that public records "should be made available without delay," that the Act is to be broadly construed, and that its exceptions are to be interpreted narrowly.

"Agency" is defined at § 50-14-1(a)(1) and reaches every county, municipal corporation, and political subdivision; every board, bureau, commission, and authority of a county or municipality; and every city, county, regional, or other authority established under state law. Private entities carrying out governmental functions are subject to the Open Records provisions (*Cent. Atlanta Progress, Inc. v. Baker*, 278 Ga. App. 733 (2006)).

Records "prepared or maintained by a private entity in cooperation with public officials, or contemplating the use of public resources and funds" are public records (*Cent. Atlanta Progress*, 278 Ga. App. 733). Records transferred by an agency to a private person or entity for storage or future governmental use remain public records (§ 50-18-70(b)(2)).

What counts as a record

Section 50-18-70(b)(2) defines public records to include documents, papers, letters, maps, books, tapes, photographs, computer-based or generated information, data, data fields, and similar material prepared, maintained, or received by an agency. Documents named in the statute's illustrative list and in case law include licensing, permitting, and zoning regulations and decisions; municipal bid offers; officials' salaries and expense reports; and litigation settlement terms (*Mullins v. City of Griffin*, 886 F. Supp. 21 (N.D. Ga. 1995)).

The Open Records process

Fees

If an agency does not comply

1. Informal follow-up with the records custodian. The Act does not govern this step.
2. Attorney General's Open Government Mediation Program. Department of Law attorneys contact the local government to attempt resolution where they believe a colorable claim exists. They do not represent the requester. Complaints are filed at law.georgia.gov or by phone at (404) 656-7298. A submitted complaint becomes an open record and may be shared with the government entity involved. Mediation does not preclude later legal action by the Attorney General.
3. Civil action. Any person, firm, corporation, or entity may sue to enforce compliance; the Attorney General may bring civil or criminal action (§ 50-18-73(a)). Courts may address whether a denial was improper and whether assessed fees or delays violated the Act. Attorney's fees may be assessed against either party that acted without substantial justification (§ 50-18-73(b)).
4. Penalties. Knowing and willful failure to provide timely access to non-exempt records is a misdemeanor punishable by a fine up to $1,000. A court may alternatively impose a civil penalty up to $1,000 for negligent failure, and a criminal fine or civil penalty up to $2,500 for each additional violation within a year of the first (§ 50-18-74(a)).

Exemptions that arise in development matters

Section 50-18-72(b) limits every exemption to the portion of the record to which it directly applies. Georgia courts construe the exclusions narrowly (*City of Brunswick v. Atlanta Journal-Constitution*, 214 Ga. App. 150 (1994); *City of Atlanta v. Corey Entm't, Inc.*, 278 Ga. 474 (2004)).

Open Meetings: notice, agenda, and minutes

A meeting is subject to the Act whenever a quorum meets for the discussion or presentation of official business or policy, or takes official action. Workshops, fact-finding sessions, and purely deliberative sessions are covered even when no final action is taken or anticipated. Meetings conducted by telephonic, electronic, wireless, or other virtual means are covered (*Claxton Enter. v. Evans Cnty. Bd. of Comm'rs*, 249 Ga. App. 870, 875 (2001)). Committee meetings relating to policy or official business are covered, and a committee need not be composed exclusively of agency members to be an agency under the Act (*Jersawitz v. Fortson*, 213 Ga. App. 796 (1994)).

The Act does not generally exempt agency adjudicative sessions, budget sessions, or meetings regarding business or industry relations, financial data, or negotiations.

Closing a meeting

An agency may close a meeting only under a specific statutory exception (§ 50-14-3) and only by majority vote of the members present, taken in a properly noticed open meeting. The portion of the meeting before that vote is open. The specific reasons for closure and the names of those voting for closure go in the official minutes, and that portion of the minutes is public. The presiding officer — or each attending member, if agency policy so provides — must execute and file a notarized affidavit stating under oath that the closed portion was devoted to matters within the exceptions and identifying the specific exception (§ 50-14-4(b)(1)). Executive-session minutes must be kept in writing for possible court examination and are not available for public inspection (§ 50-14-1(e)(2)(C)). If someone initiates an unauthorized discussion in executive session, the presiding officer must immediately rule it out of order and, if it continues, adjourn the session (§ 50-14-4(b)(2)).

Commonly used exceptions include personnel matters (discussion and deliberation only, not votes); attorney-client discussion of actual or potential litigation; and real estate. In a closed meeting an agency may take preliminary votes on real estate, but a transaction does not become binding until a public vote is taken.

On "potential litigation," *Decatur Cnty. v. Bainbridge Post Searchlight, Inc.*, 280 Ga. 706 (2006) holds that an unrealized or idle threat does not suffice; the entity must show a threat beyond mere fear or suspicion of being sued, with factors including a formal demand letter or other writing showing intent to sue, prior or ongoing litigation between the parties, or proof that a party retained an attorney and expressed an intent to sue.

Penalties and remedies

• Actions taken in a meeting closed in violation of the Act are void and can be set aside if challenged within 90 days of discovery (§ 50-14-1(b)(2); *Moon v. Terrell Cnty.*, 249 Ga. App. 567, 569 (2001)).
• Knowing and willful violation is a misdemeanor punishable by a fine up to $1,000; a court may alternatively impose a civil penalty up to $1,000 for negligent violation, and a criminal fine or civil penalty up to $2,500 for each additional violation within 12 months of the first (§ 50-14-6). Good faith is a defense to criminal action.
• Failure to give adequate notice can result in invalidation of the proceedings, injunctions, and payment of the objecting party's legal costs (§ 50-14-5(a), (b); *Howard v. Sumter Free Press, Inc.*, 272 Ga. 521 (2000)).
• Officials who participate in unlawfully closed meetings are subject to recall (*Steele v. Honea*, 261 Ga. 644, 646 (1991)).
• Superior courts have jurisdiction to enforce the chapter, including injunctive relief; the Attorney General may bring civil or criminal enforcement actions (§ 50-14-5(a)). Attorney's fees are assessed in favor of a complaining party where an agency acted without substantial justification, absent special circumstances (§ 50-14-5(b)).

Records that answer this report's open questions

Each item in what still needs to be verified corresponds to a record held by an identifiable custodian.

Because § 50-18-71(f) allows the requester to specify format, correspondence can be requested with headers and attachments intact rather than as printed copies.

Request template

Adapted from Appendix 3 of the Attorney General's guide. The guide states that delivery should be by hand or by certified mail, return receipt requested; that for urgent requests hand delivery, or fax or e-mail followed by a confirming phone call, is most effective; and that mailed requests should be marked "Attention: Open Records Act office" or "Attention: Public records custodian" on the envelope.

Dear [custodian]:

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Pursuant to the Georgia Open Records Law (O.C.G.A. § 50-18-70 et seq.), you are hereby requested to make available for review and copying all files, records, and other documents in your possession that refer, reflect, or relate to [the proposed data center at (parcel / location), including any project referenced under a code name]. This request includes, but is not limited to, all applications, site plans, staff reports, engineering submittals, water and electrical load calculations, will-serve letters, development agreements, incentive documents, and all communication and correspondence in whatever tangible medium between and among [agency and its officials] and [the applicant, its agents, consultants, and site selectors], for the period [start date] to the present.

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Please produce electronic records in the format in which the agency maintains them, including message headers and attachments, as provided by O.C.G.A. § 50-18-71(f).

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If this request is denied in whole or in part, we ask that you cite in writing the specific statutory exemption upon which you have relied, as required by O.C.G.A. § 50-18-71(d). We also ask that you release all separate portions of otherwise exempt material, as provided by O.C.G.A. § 50-18-72(b). Please waive any costs associated with this request, or first inform us about such costs as required by Georgia law.

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As you know, the Law requires a response within three business days of your receipt of this letter and provides sanctions for non-compliance. I look forward to hearing from you.

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Sincerely,

Sumter County publishes an Open Records Request Form (rev. 11/06/2019) directing requests to the Board of Commissioners at 500 West Lamar Street, Suite 100 / P.O. Box 295, Americus, GA 31709, phone (229) 928-4500, fax (229) 928-4503. The form offers three options: to inspect and copy, to obtain copies, or to obtain information by e-mail. Using an agency form is not a statutory prerequisite; § 50-18-71 requires only that a written request reach a custodian, or the designated custodian where one has been designated.

Contacting officials

Sumter County Board of Commissioners

500 West Lamar Street, Suite 100, Americus, GA 31709 · P.O. Box 295, Americus, GA 31709 · (229) 928-4500 · fax (229) 928-4503 · sumtercountyga.us · office hours Monday–Friday, 8:00 a.m.–5:00 p.m.

Work session: second Tuesday monthly, 6:00 p.m. Regular board meeting: third Tuesday monthly, 6:00 p.m. Both at 500 West Lamar Street; the county states all meetings are open to the public and offers Zoom attendance. Source: Board of Commissioners Members & Meetings. Agendas: County Agenda Center. Calendar: county calendar.

City of Americus

City Hall, 101 West Lamar Street, Americus, GA 31709 · (229) 924-4411 · americusga.gov · office hours Monday–Friday, 8:00 a.m.–5:00 p.m.

Source: Mayor & City Council. Individual e-mail addresses and direct phone numbers are not published on that page; the city clerk's office at City Hall is the route for council correspondence, agendas, minutes, and records requests. Council meetings have been held at the Russell Thomas Jr. Public Safety Building, Lee Street.

Sumter County Development Authority

Rees Park Economic Development Center, 409 Elm Avenue, Americus, GA 31709 · P.O. Box 925, Americus, GA 31709 · (229) 924-7007 · info@selectsumter.com · selectsumter.com

State agencies and offices

Practical points from the statutes

• Only a written request triggers the enforcement provisions of § 50-18-71(b)(3), so verbal requests at a meeting sit outside the penalty structure.
• Where an agency has designated a records custodian, § 50-18-71(b)(2) requires that person to be identified on the agency's website; a request sent to the designated custodian starts the three-day clock.
• Correspondence about agency business held in an official's account is a public record under § 50-18-70(b)(2) regardless of which body the official sits on.
• A meeting agenda must be made available on request under § 50-14-1(e)(1); that request does not require an Open Records Act letter.
• Minutes must identify who made and seconded each motion and how each member voted (§ 50-14-1(e)(2)), which establishes an individual voting record for correspondence purposes.

Verification notes for this page