Open Records Noncompliance by Board of Regents

Schick v. Board of Regents, 334 Ga. App. 425 (Nov. 12, 2015)

Starting in 2012, the editor of the Georgia Perimeter College student newspaper commenced open records requests for documents concerning a $25 million budget shortfall at the College and personnel layoffs. The request for document by Schick was expansive and would have been costly to fulfill. For example, the documents covered a period of time of approximately six years. College and Board of Regents representatives discussed with Schick that he might want to narrow the scope of his request and the amount he would have to pay to have the documents provided. As the Board undertook these discussions with Schick, the Board never invoked any statutory exemption to withhold any of the requested documents. Ultimately, with the assistance of counsel, the Board’s cost estimate to produce the documents was reduced from approximately $2,500 to $291.

The Board then began the process of reviewing and providing documents to Schick. By February 2013, the Board had produced over 12,000 pages of documents and it notified Schick that the compliance with his request was complete.

Schick believed there were certain “missing” documents and filed suit in June 2013 seeking complete production of documents responsive to his request. In its answer, the Board asserted that some documents were withheld under O.C.G.A § 50-18-72(a)(4) [for law enforcement, prosecution or regulatory agency pending investigation documents], and the Board produced an additional 713 pages of documents.

The case went to trial in Superior Court. The trial court found that the Board had violated the Open Records Act by failing to timely designate specific exemptions upon which it relied to withhold documents, and imposed a $1,000 penalty. The trial court did agree that the Board could withhold documents under the “pending investigation” exception, and Schick appealed.

On appeal, the key holdings of the Court in connection with the Open Records Act were these:

  • The Court reaffirmed that the Open Records Act is to be broadly construed in favor of allowing inspection of government records, and any exceptions should be narrowly interpreted.
  • One purpose of the Act is to make the production of records expeditious.
  • The Court did not accept the argument that the Board of Regents was a “regulatory agency” for purposes of the pending investigation exception in 50-18-72(a)(4).
  • And most importantly, the Court of Appeals rejected the argument that some documents were exempt just because the Board had shared these documents or provided them to “a law enforcement agency.” The Court of Appeals said that the exemption in (a)(4) is for records of a law enforcement, prosecution or regulatory agency, and not records merely related or pertaining to an investigation.
  • There is a separate exemption in 50-18-72(a)(3) of records “compiled for” law enforcement purposes, but these are limited to documents that would identify a confidential source, disclose confidential investigation or prosecution material that would endanger life or physical safety, or that would disclose a confidential surveillance or investigation.
  • The Court of Appeals affirmed the trial court’s refusal to impose attorney’s fees on the Board for the amount of time it took to produce the voluminous records. The Court found that the Board had worked diligently including nights, weekends and holidays to provide documents.
  • However, the Court of Appeals did remand the case for the trial court to determine if attorney’s fees should be assessed because of the Board’s invalid reliance on withholding some records based on the pending investigation exception.

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