This past month, a Georgia appellate court ruled that the General Assembly and its offices are not required to provide citizens with records under the Open Records Act (ORA). The decision comes in a case brought by the Institute for Justice (IJ), a nonprofit libertarian legal activity group that litigates on behalf of people “denied their constitutional rights.”
The IJ was researching the passage of a 2012 law that regulated the practice of music therapy, when they requested records from bodies “including the Office of the Clerk of the House of Representatives, the Office of the Secretary of the Senate, the House Budget and Research Office, the Senate Budget and Evaluation Office, the Senate Research Office, and the Office of Legislative Counsel.” They sued the state for the records, and in 2017, the IJ lost in court with the judge citing a previous legal precedent in regards to open records laws and the Georgia General Assembly.
The Open Records Act is a portion of the state code of Georgia which allows for citizens and groups to request information from public agencies, municipalities and boards. All 50 states have freedom of information laws, guaranteeing citizens a degree of transparency as to the workings of their government. The federal government, through the Freedom of Information Act (FOIA), also provides a route for citizens to petition for access to information. Not all public information is accessible through the ORA.
There are several categories that are protected by law, both state and federal, to ensure the privacy of individuals and the security of their data. There are many such protections in Georgia’s ORA; in fact, almost 14 of the ORA’s 23 report pages are concerned with what information may not be provided to citizens. This information ranges from obvious things, such as medical records or the keys to tests from state schools, to things that one would assume would be available, such as record from the offices of the General Assembly.
The appellate court’s basis for their rejection of the Institute of Justice’s claim was a precedent set in 1975 (Coggin v. Davey) in relation to Georgia’s Sunshine Law, the precursor to the current ORA. Per the 1975 decision, “The statute is applicable to the departments, agencies, boards, bureaus, etc. of this state and its political subdivisions … it is not applicable to the General Assembly.” This previous decision pulled from language in the Sunshine Law which explicitly did not include the word ‘offices’ when it defined the organizations that were subject to the law.
This hole was then cleared by a reference to a 1979 decision (Harrison County v. Code Revision Commission) about the general assembly. The decision said that, “the General Assembly, including its committees, commissions and offices, is not subject to a law unless named therein or the intent that it be included be clear and unmistakable.” The court’s reasoning, then, was that because neither the offices of the General Assembly nor the Assembly itself were mentioned in the ORA they are not included in the law.
The dissenting opinion, written by Judge Christopher McFadden, hinges on the “clear and unmistakable” line from the 1979 court decision, as McFadden holds that the intention of the ORA was to include the offices of the General Assembly, but not necessarily the General Assembly itself. It differs from the majority opinion in how it interprets a state office, pointing to the literal wording in the 1979 decision, which says “state … office,” and interpreting that to include offices of the General Assembly.
The decision has implications for governmental transparency in Georgia because there is now a judicial barrier separating citizens from information about how the legislative process is functioning. A similar transparency issue won a victory in the 11th Circuit Court of Appeals and is now on its way to the U.S. Supreme Court. The state of Georgia sued an online legal transparency organization for publishing the annotated Code of Georgia, a copyrighted version of the laws of Georgia that contains citations regarding legal precedents that puts the laws themselves into context.
The state contended that the annotated version of the code was the property of the original publishing company, LexisNexis, a legal research firm; the 11th Circuit Court of Appeals found that due to the content and process of creation “the People were constructively the authors of the annotations.” This was a win for legal transparency in Georgia as it gave citizens access to and important context for the laws that govern their lives without having to pay for access.
The Supreme Court will hear this case next term. The case of the Georgia ORA is expected to be appealed to the Georgia Supreme Court, which means that the IJ’s efforts to make the General Assembly more transparent are likely to be in contention for the time being.