To meet high standards of transparency in the United States, open records acts make sure that the public has access to any unexempted public record from “agencies” as deﬁned by the Georgia Open Meetings Act. The definition of “agency” includes the city and all city departments, agencies, boards, bureaus, commissions, authorities, and other similar bodies. Additionally, this definition includes any association, corporation, or other similar organization that has a membership or ownership body composed primarily of counties, municipal corporations, or school districts of this state, their officers, or any combination thereof and derives more than 33 1/3 percent of its general operating budget from payments from such political subdivisions.
Public records are records prepared and maintained or received in the course of a government agency’s operation. They may exist electronically, as a hard copy, or in some other format. The substance of the content matters, not the format. As a result, public records may include:
- Handwritten notes
- Text messages
- Computer-based or computer-generated information
- Data fields
Public records also include records possessed by a private person or entity in the performance of a service or function on behalf of the “agency.” Providing accurate and timely responses to open records requests is vital to the operation of a transparent local government. It is important that the city attorney be consulted on complicated or unusual open records requests to ensure that responses comply with state law and that the records requested are subject to open records.
Provisions in the Georgia Open Records Act
City clerks need to especially note a few provisions about Georgia open records laws.
- The city may appoint one or more records custodians and open records officers (O.C.G.A. §50-18-71(b)(1)(B)). The city clerk often serves as the city’s single records custodian and open records officer but it’s possible to designate multiple open records officers (such as for different departments like personnel or public safety). This will ensure compliance that an agency cannot delay its response to an open records request just because the designated open records officer is absent. Review your city’s charter and records ordinance to see if a records custodian is designated. If not, consult with your city attorney to have your city council do so by ordinance.
- After designating an open records officer, the city must provide notice of the designation. That means providing notice to any person requesting records, notifying the county’s legal organ, and posting the information on the agency’s website (if it has one).
- Public records (except those legally exempted from disclosure) should be made available if you have them within a reasonable period of time not to exceed three (3) business days from the receipt of the request. If the record cannot be produced within three (3) business days, it is acceptable to respond within the three (3) days with information about when the public record will become available (and the associated cost). It is strongly suggested that if a record cannot be produced within the three (3) days that the city attorney be consulted to ensure that the response provides proper protections to the city.
Steps to Take When Receiving an Open Records Request
For more details, refer to GMA’s publication, Government in the Sunshine: A Guide to Georgia’s Open Meetings and Open Records Laws for Municipal Officials.
- Check to see if your city has the requested records. If you have the records, you must provide them to whoever requested them. But if the requested records are not in existence at the time of the request, then the city does not have to create them.
- Check to see if the requested records are subject to an exemption to the open records law. If the document falls under one of the legal exemptions (see below), your city must provide, in writing, the speciﬁc legal authority that exempts your city from releasing the public record. List the Official Code of Georgia Annotated code section, subsection, and paragraph in your response. If a document contains both open and exempted information, then provide the record while redacting or marking out the exempt information. Again, it is strongly suggested that the city attorney be consulted to ensure the response provides proper protections to the city.
- Provide the requester with an estimate of any copying, production, and administrative charges (O.C.G.A. §50-18-71(d)). If the costs are expected to exceed $25.00, then inform the requester of the total charge within 3 business days. You may defer the search and retrieval of public records until the requester agrees to pay the estimated costs. Copying fees must not exceed 10 cents per page. The total charge for searching, retrieving, and redacting must not exceed the prorated hourly salary of the lowest paid full-time employee who has the skill and training to perform the request. There shall be no cost for the first quarter hour.
- Make sure the requester may inspect and copy the requested documents, if available. The requester may bring in their own paper and copier.
A person who wishes to legally enforce compliance after making an open records request can only do so when a written request is made. An oral request is not legally enforceable. To help ensure written documentation, we recommend that an open records request form be used.
Open Records Disclosure Exemptions
While not a complete list of exemptions, the following list provides some of the most common. For a complete list of exemptions, see GMA’s publication, Government in the Sunshine: A Guide to Georgia’s Open Meetings and Open Records Laws for Municipal Officials. If it is unclear about whether a record fits within an exemption, it is strongly suggested that you consult with your city attorney.
- Medical records
- Social security numbers
- Mother’s birth name
- Credit and debit card numbers
- Bank account information
- Account numbers (including utility account numbers and passwords used to access the account)
- Financial data
- Insurance information
- Unlisted telephone numbers if so designated in a public record
- Personal email addresses
- Cellular telephone numbers
- Month and date of birth
The Government in the Sunshine: A Guide to Georgia’s Open Meetings and Open Records Laws for Municipal Officials states, “There are certain people, however, who may request and receive access to the personal and ﬁnancial data generally exempted from access as discussed above.” If one of these situations arise, it is strongly suggested you consult with your city attorney before releasing any of this normally protected information. These exemptions to the exemption are as follows:
- An individual or his or her legal representative may obtain records containing that individual’s social security numbers, mother’s birth name, credit card, debit card, bank account, ﬁnancial data, insurance data, or medical information.
- A government employee may obtain records containing social security numbers, mother’s birth name, credit card, debit card, bank account, ﬁnancial data, insurance data, or medical information if he or she is doing so for administrative or law enforcement purposes.
- Any individual may obtain date of birth and mother’s birth name of a deceased individual.
- Consumer reporting agencies may obtain credit and payment information.
- Tax matters made conﬁdential by state law, such as certain occupation tax records, must not be released. Trade secrets and certain proprietary information protected by the Georgia Trade Secrets Act of 1990 may not be released.
- Records speciﬁcally required by federal statute or regulation to be kept conﬁdential may not be released.”
- Certain law enforcement related records unless specific criteria are met.
The following records are temporarily exempt from disclosure:
- Investigation of complaints against city employees (until 10 days after the investigation is complete or terminated).
- Appointment of the executive head. Records of applicants may be withheld until up to three finalists are selected 14 days before a decision is made. Names and application records of as many as three finalists must be made available upon request unless the applicant is no longer seeking the position.
- Land acquisition until after the transaction is completed or terminated.
- Pending bids and proposals until after the contract is awarded, abandoned, or a public vote is taken.
- Pending investigations (other than the initial incident report) until after prosecution or direct litigation is finalized or terminated.
The following records may be withheld:
- Those which invade privacy (according to Georgia case law O.C.G.A. § 50-18-72(a)(2); Dortch v. Atlanta Journal, 261 Ga. 350, 405 S.E.2d 43 (1991); Fincher v. State, 231 Ga.App. 49, 497 S.E.2d 632 (1998).)
- Those which involve attorney-client privilege and attorney work product (though this exception is more narrow than in other areas of the law)
- Those which reference information from security systems and neighborhood watch programs
- Those which reference information about carpools and rideshare programs
- Georgia Uniform Motor Vehicle Accident Reports unless the person requesting the accident report is named in the report, represents someone named in the report, or files a statement of need
- Agency security plans (but not usually security videos)
- Information from emergency telephone calls unless provided to the accused or the attorney of the accused in a criminal case
- Information from agency job examinations and references supplied by agency job applicants
- Records of athletic or recreational programs for children under 12
- Trade secrets
- Documents maintained by the Department of Economic Development concerning a proposal to locate or expand a business that would involve the expenditure of more than $25 million or the hiring of more than 50 employees, along with records related to a job training program operated under the State Board of the Technical College System of Georgia for such an economic development project
The following exemptions are specific to Georgia law.
- Information provided by victims participating in a notiﬁcation program
- Annual public school teacher, administrator, and superintendent annual performance evaluations
- Library records that could identify the user of library materials
- Potentially commercially valuable hospital plans, proposals, or strategies
- Vital records (such as birth certiﬁcates)
- Work papers, analysis, information, and documents from another state or any other materials produced or obtained pursuant to Chapter 2 of Title 33 of the Georgia Code, or any materials produced or obtained by the Commissioner of Insurance for analysis of the ﬁnancial condition or market conduct of a company
- Records a city obtains from the insurance commissioner through the administration of a tax, such as the insurance premium tax
- Records provided to the county board of tax assessors by a taxpayer, other than the tax return (e.g. taxpayers’ accounting records, proﬁt and loss statements, balance sheets, etc.)
- Information on gross receipts received by a business or practitioner provided to a city for purposes of occupation taxes
- Geographic information systems information in electronic form
- Records on candidates and peace ofﬁcers prepared pursuant to the Georgia Peace Ofﬁcer Standards and Training Act
- Crime scene photographs and video recordings