Open Meetings and Open Records

February 20, 2018

“All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people and are at all times amenable to them. The people of this state have the inherent right of regulating their internal government. Government is instituted for the protection, security, and benefit of the people; and at all times they have the right to alter or reform the same whenever the public good may require it” (Ga. Const. Art. I, Sec. II, Par. I et seq.). These words in the Georgia Constitution are the starting point for any consideration of Georgia’s laws on open meetings and open records. They are a reminder that government is created by and for the people to promote the common good and that public officials and employees are the servants, not the masters. Public servants are expected to execute their duties in an honest and trustworthy manner that can be reviewed, judged and critiqued by the people. The only way the people can regulate their government is if they know what it is doing. Thus, openness in government must be the rule and not the exception. Openness in government is also a key to building public trust.

Open Meetings

Georgia’s open meetings law applies to meetings of the governing authority of every “agency” as that word is defined in the statute. The definition includes every county, municipal corporation, school district, or other political subdivision of the state and every municipal, county, regional or other authority. Thus, meetings of the city council and meetings of the city’s downtown development authority are covered meetings. The term “agency” also applies to the governing body of every city department, agency, board, bureau, office, commission, authority, or similar body (O.C.G.A. § 50-14-1(a)(1)).

The first requirement for a "meeting" is the gathering of a quorum of the members of the governing body of an agency, any committee of the members of the governing body of an agency, or any committee created by such governing body (O.C.G.A. § 50-14-1(a)(3)). The second requirement is that the gathering must be one at which any official business, policy, or public matter of the agency or committee is formulated, presented, discussed or voted upon. Both of these requirements must be met to come within the statute’s definition of “meeting”.

The definition of “meeting” does not include certain gatherings of a quorum of a governing body or committee so long as the primary purpose of the gathering is not to evade or avoid the requirements of the Open Meetings Act and so long as no official action is taken by the members during that gathering (O.C.G.A. § 50-14-1(a)(3)(B)). For example, it is not considered a “meeting” when a quorum of a governing body or committee gathers to inspect physical facilities or property under the jurisdiction of the agency or gathers to meet with officials of the legislative or executive branches of the state or federal government at state or federal offices. Similarly, it is not considered a “meeting” when a quorum of a governing body or committee of an agency gathers to attend statewide, multijurisdictional, or regional meetings to participate in seminars or courses of training on matters related to the purpose of the agency or to receive or discuss information on matters related to the purpose of the agency. It also is not considered a “meeting” when a quorum of the members of a governing body of an agency gets together for the purpose of traveling to a meeting or gathering as otherwise authorized by the law. Again, no official business, policy, or public matter can be formulated, presented, discussed, or voted upon by the quorum while attending the training or traveling.

The law also recognizes that city officials are often present at the same social, ceremonial, civic, or religious events but are there to participate in that event and not to conduct official business. Thus, the law states that when a quorum of the body or committee is at such an event it is not a “meeting” so long as no official business, policy, or public matter is formulated, presented, discussed, or voted upon by the quorum. Even though these types of gatherings are not considered “meetings” and thus are not subject to the requirements for notice, agenda and minutes, city officials should always be mindful of the public’s perception that official decisions are being made informally in these types of settings.

City officials must remember that exclusion from the definition of “meeting” of the exemptions noted above will not apply “…if it is shown that the primary purpose of the gathering or gatherings is to evade or avoid the requirements for conducting a meeting while discussing or conducting official business” (O.C.G.A. § 50-14-1(a)(3)(B)). Thus, city officials utilizing most of the exemptions noted above from the definition of “meeting” need to scrupulously avoid discussing any policy, public matter, or official business of or related to the city. Note that the exception for meeting with state or federal legislative or executive branch officials at a state or federal office only prohibits taking official action by the members. It makes sense that discussion or formulation of official business, policy or a public matter would be allowed in such circumstances but a vote would not. However, when a quorum is traveling to such a meeting, attending a funeral, or participating in training on city functions, such officials are advised to limit discussion with one another to matters that do not implicate city business.

Also not subject to the Open Meetings Act are incidental conversations unrelated to the business of an agency. An example of this would be something like “How about them Braves?” Finally, the law states that e-mail communications among members of an agency are not subject to the Open Meetings Act (O.C.G.A. § 50-14-3(a)(7) et seq.). Note, however, that such communications are subject to disclosure pursuant to the Open Records Act. The intent of this provision is to recognize and treat e-mail communications like hard copy memoranda shared with members of an agency. City officials are cautioned not to use technology in an attempt to avoid the requirements of the Open Meetings Act.

The city must provide the public with advance notice of meetings. Notice of the time, place, and dates of regular meetings (e.g., the city council’s monthly meeting) must be made available to the general public and be posted in a conspicuous place at the regular meeting place of the agency and must be posted on the agency’s website, if it has one. For any meetings that are not conducted at the regular meeting place or time, the agency must post the time, place, and date of the meeting for at least 24 hours at the regular meeting location and give written or oral notice at least 24 hours in advance of the meeting to the legal organ of the county or a newspaper with equal circulation. For emergency meetings (i.e., meetings with less than 24 hours’ notice), the meeting notice must include the date, time, and location of the meeting, the subjects expected to be covered at the meeting, and the reason for meeting with less than 24 hours’ notice (O.C.G.A. § 50-14-1(d)(1) et seq.). Notice must be provided to the county legal organ or a newspaper with greater circulation in the county than the legal organ. Many cities have made it a practice to simply notify all of the newspapers, radio stations, and television stations serving the area when there are special called meetings or there is an emergency meeting.

Regularly scheduled meetings can be cancelled or postponed (O.C.G.A. § 50-14-1(d)(1)). This often happens when the customary meeting date falls on a holiday.

An agenda of all matters expected to come before the council or other governing body must be made available upon request and must be posted at the meeting site as far in advance as is practicable during the two weeks prior to the meeting (O.C.G.A. § 50-14-1(e)). If a particular issue is not included on the posted agenda it may still be considered by the council if it is deemed necessary to address it. The courts have not yet defined what is meant by “necessary to address,” and individuals—often with competing political agendas—may have different definitions. However, the clear intent of this provision is to ensure that the public is informed of the matters that will come before the body. Thus elected officials should avoid amending the agenda at the meeting to add a matter, particularly one that is known to be controversial, unless there is a clear and unambiguous necessity to do so.

Members of the public must be allowed access to the meeting and must be allowed to make visual and sound recordings of the open portions of any meeting (O.C.G.A. § 50-14-1(c)). Some city councils designate an area or areas where equipment for visual and sound recordings can be placed so that the equipment does not obstruct the view of meeting attendees and use of the equipment is not disruptive to the meeting. If a city or any other “agency” subject to the Open Meetings Act is going to do this, they should formulate and adopt a clear policy addressing the issue at a time when there is nothing controversial going on to avoid the perception that the policy on recording equipment is aimed at a particular person or constituency. Given modern phone capabilities, most open meetings could easily be recorded without the governing body of an agency aware that it was occurring.

If attendance at a meeting is larger than the meeting room can accommodate, then the council should move the meeting to a larger venue, if available (Maxwell v. Carney, 273 Ga. 864, 548 S.E.2d 293 (2001)).

A written summary of the subjects acted on and a list of the officials attending the meeting must be prepared and made available within two business days of the meeting. Minutes of the meeting must be prepared and made publicly available after having been approved as official; such approval is to occur at the next regular meeting of the agency (O.C.G.A. § 50-14-1(e)(2)). The minutes must, at a minimum, contain the names of the governing body members present at the meeting, a description of each motion or other proposal made, a record of who made and seconded each motion, and a record of all votes including who voted for and who voted against each motion. It shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining. For meetings with less than 24 hours’ notice, the minutes must also describe the notice given and the reason for the emergency meeting (O.C.G.A. § 50-14-1(d)(3)). Minutes of executive sessions must be taken, but they are not open to the public. Such minutes must specify each issue discussed, but the substance of attorney-client discussions need not be recorded and are not to be identified in the minutes (O.C.G.A. § 50-14-1(e)(2)(C)).

In situations necessitated by emergency conditions involving public safety or the preservation of property or public services cities may conduct meetings via teleconference so long as the proper notice requirements are met and the public is given access to the teleconference meeting. A city council or other agency can also meet by teleconference if necessary due to the health of a member or the absence of a member from the jurisdiction so long as a quorum is present in person and the other requirements for an open meeting are met (O.C.G.A. § 50-14-1(g)). Under this exception, a member of an agency can only participate by teleconference twice in one calendar year unless there are emergency conditions or the member has a written opinion of a physician or other health professional stating that reasons of health prevent that member’s physical presence. However, a quorum of the members must still be present in person. Finally, teleconference meetings are allowed to be held when one or more of the city’s members are on ordered military duty at the time of the meeting, so long as the meeting is otherwise held in compliance with state law (O.C.G.A. § 38-2-279(g)).

Although there are numerous exceptions to the requirements of the open meetings law, there are six primary reasons why a city council would lawfully hold a closed meeting or executive session. These reasons are:
  1. to discuss pending or potential litigation with legal counsel and to discuss or vote on settlement (O.C.G.A. § 50-14-2(1))
  2. to discuss or vote on authorizing negotiations to purchase, dispose of, or lease property
  3. to discuss or vote on the acquisition, disposition, or lease of real estate by the city (O.C.G.A. § 50-14-3(b)(1))
  4. to discuss hiring, compensation, evaluation, or disciplinary action for a specific public officer or employee (O.C.G.A. § 50-14-3(b)(2))
  5. to interview an applicant to be executive head of a department, or
  6. to discuss records that are exempt from disclosure (O.C.G.A. § 50-14-3(b)(4)).
The governing body of an agency may close the portion of the meeting during which the members are deliberating on hiring, appointing, compensating, disciplining, or dismissing a public officer or employee. However, any portion of a meeting during which the body receives evidence or hears arguments on personnel matters must be open. A city council may also go into executive session to discuss or deliberate on the periodic evaluation or rating of a public officer or employee, or to interview applicants for the position of executive head of an agency. Note that the exceptions allow certain discussions and interviews to take place in an executive session but that all votes on personnel matters must be taken in public (O.C.G.A. § 50-14-3(b)(2)).

Because closed meetings are the exception and not the rule, if there is any doubt whether a topic may be discussed in a closed meeting, the city attorney should be consulted. If doubt remains, the meeting should be open. Furthermore, it does not matter what a closed meeting is called. A closed meeting may be called an executive session, a work session, or something else. For purposes of the open meetings law, there are only two types of meetings—open or closed. Whatever a meeting is called, it should be clear to the public whether the meeting is open or closed.

A majority vote of the quorum present for the meeting is required to close a meeting. The specific reason for closing the meeting must be stated in the minutes, the minutes must reflect the names of the members of the governing authority present and those voting to close the meeting, and these portions of the minutes must be made available to the public. When a meeting is properly closed but the discussion begins to stray into an area of discussion required to be open, the presiding officer must rule the discussion out of order and the discussion must cease (O.C.G.A. § 50-14-4(a) et seq.). If one or more persons continue or attempt to continue the discussion after being ruled out of order, the presiding officer must immediately adjourn the executive session.

When a meeting is closed under the Open Meetings Act, the person presiding over such meeting or, if the agency’s policy so provides, each member of the governing body of the agency attending such meeting, must execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception (O.C.G.A. § 50-14-4(b)(1)). False swearing is a felony under Georgia law (O.C.G.A. § 16-10-71).

Any action taken at a meeting that was not open, but should have been, is not binding (O.C.G.A. § 50-14-1(b)(2)). Parties who wish to contest that an action was invalidly taken in a closed meeting must do so within 90 days after the date the action was taken or, if the meeting was held in a manner not permitted by law, within 90 days from the date the party alleging the violation knew or should have known about the alleged violation so long as such date is not more than six months after the date the contested action was taken. Any action under the Open Meetings Act contesting a zoning decision must be commenced within 30 days.

Any person knowingly and willfully conducting or participating in a meeting in violation of the Open Meetings Act may be convicted of a misdemeanor and fined not more than $1,000. Alternatively, a civil penalty not to exceed $1,000 for the first violation may be imposed by the court in any civil action brought under the Open Meetings Act against any person who negligently violates the Act. A civil penalty or criminal fine not to exceed $2,500 per violation may be imposed for each additional violation committed within a 12-month period from the date that the first penalty or fine was imposed. It shall be a defense to any criminal action that a person has acted in good faith. An agency or person who provides access to information in good faith pursuant to the Open Meetings Act will not be held liable for having provided such access (O.C.G.A. § 50-14-6). If anyone signs an executive session affidavit containing false information, he or she may be convicted of a felony and fined $1,000 and/or imprisoned for up to five years (O.C.G.A. § 16-10-71). Further, participation in a meeting that is held in violation of the Open Meetings Act may be grounds for a recall action (O.C.G.A. § 21-4-3(7); David v. Shavers, 263 Ga. 785, 439 S.E.2d 650 (1994)).

Someone who sues for a violation of the Open Meetings Act is to be paid their attorney’s fees and other litigation costs, unless special circumstances exist. The test for whether fees and other expenses will be assessed against the governing body is whether the position of the complaining party was substantially justified. The Attorney General is authorized to bring enforcement actions, either civil or criminal, as appropriate to enforce the law (O.C.G.A. § 50-14-5(b)).

Open Records

Georgia’s open records law generally applies to the same “agencies” as defined by the Open Meetings Act. Thus, it applies to the city and all city departments, agencies, boards, bureaus, commissions, authorities, and other similar bodies (O.C.G.A. § 50-18-70(b)(1)).

Generally, the city employee or official who maintains the records is the records custodian who actually responds to requests for city records. The city can designate one or more persons to serve as the custodian of agency records and open records officer. A city may want to review its charter to determine whether a custodian of records is named in the charter and determine whether the city’s charter should be amended to authorize the appointment of additional records officers. An agency can require that all written records requests be made upon the designated open records officer. However, the law specifically provides that an agency cannot delay its response to an open records request just because the designated open records officer is absent or unavailable (O.C.G.A. § 50-18-71(b)(1)(B)). Thus, a city needs to ensure that at all times there is available to the public a designated open records officer who can receive and respond to their request. If an agency designates one or more open records officers, it must provide notice of such designation(s) to any person requesting records, must notify the county legal organ, and must post the designation(s) on the agency’s website, if it has one (O.C.G.A. § 50-18-71(b)(2)).

“Public record” is defined to include all documents, papers, letters, maps, books, tapes, photographs, computer-based or computer-generated information, data, data fields, or similar material prepared and maintained or received in the course of the operation of an agency. Such records are subject to disclosure unless they fall within one of the legal exemptions to the open records law. Handwritten notes, e-mails, text messages, calendars, etc., are all public records subject to disclosure under the Open Records Act. It does not matter whether the record exists electronically, as a hard copy or in some other format. Additionally, records prepared and maintained or received by any company, individual, or other entity that does business with or has contracts with the city to provide services for the city must be available to the public under the Open Records Act (O.C.G.A. § 50-18-71(b)(2)). This rule applies to records possessed by a private person or entity in the performance of a service or function on behalf of the “agency.”

The open records law requires that all public records, except those legally exempted from disclosure, must be open for personal inspection by any individual at a reasonable time and place, usually within three business days from the receipt of the request. Available documents must be made available within three business days. For records or documents that cannot be made available within three business days, a written description of the records, along with a timetable for inspection and copying, must be provided within three business days (O.C.G.A. § 50-18-71(b)(1)(A)). In lieu of providing printouts or copies of records or data, the city can provide access to records through a website accessible to the public (O.C.G.A. § 50-18-71(h)).

The city is not required to prepare any reports, summaries, or compilations that are not in existence at the time of the request (O.C.G.A. § 50-18-71(j)). However, so long as the city’s existing computer programs can handle it, the city cannot refuse to produce electronic records just because production of the records will require inputting search, filter, or report parameters into the city’s computer system. Once it has been determined that all or part of a document falls under one of the legal exemptions, the city must provide, in writing, the specific legal authority exempting such record from disclosure by code section, subsection, and paragraph (O.C.G.A. § 50-18-71(d)). If a requested document contains both open and exempt information, the records custodian must still release the document but may redact or mark out the exempt information.

Many cities are making routine records more accessible to the public by posting records on the city’s website or allowing citizens to access records through the Internet. This makes getting information easier for citizens and saves staff time.

Although the records custodian may ask that open records requests be made in writing, he or she may not require them to be in writing. However, municipal employees that receive records requests should be instructed to make a written record of oral open records requests. Most requesters will readily provide a written request for two reasons: it protects from misunderstanding the request and helps focus the request to avoid excessive charges, when the request is for something other than meeting minutes, agendas, ordinances, etc. A written request also becomes an identifiable record, clearly triggering the three business day time period for access when received by the open records officer or records custodian designated by the city. Finally, legal action to enforce compliance with the Open Records Act is only available when a written request is made (O.C.G.A. § 50-18-71(b)(3)).

The city may impose a reasonable charge for search, retrieval, redaction, and production or copying costs to produce responsive records but is required to use the most economical means reasonably calculated to identify and produce the records. This charge must be calculated using the prorated hourly salary of the lowest paid full-time employee with the necessary skill and training to fulfill the request minus the first fifteen minutes of search and production. Additionally, the city may charge up to ten cents per page for letter- or legal-size copies, the actual cost of producing larger copies, and the actual cost of the media on which records or data are produced (O.C.G.A. § 50-18-71(c)(1) et seq.). To avoid the introduction of viruses or malware onto the city’s computer or system, the city should always use a new flash drive or other media if providing electronic data rather than accepting one from the requester.

In any instance in which the city plans to charge more than $25 to respond to a request, the city must notify the requester within the three-day time limit and provide an estimate of costs. Unless the requester stated in the request a willingness to pay an amount that exceeds the estimated cost, the city can defer any search for records until the requester has agreed to pay such estimated cost. If the estimated cost of production exceeds $500, the city may insist on prepayment (O.C.G.A. § 50-18-71(d)). Note that a requester may prefer to inspect records rather than receive copies. In such a case, the city should have someone with the requester while inspecting records to ensure they are not removed or altered. If confidential information must be redacted from records, the city can choose to provide redacted copies (O.C.G.A. § 50-18-71(b)(1)(B)).

The city should update its records retention schedule and make sure that employees responding to records requests are familiar with the schedule. State law requires cities to have a records retention schedule, and all department heads and records custodians should familiarize themselves with and follow the records retention plan adopted by the city (O.C.G.A. § 50-18-99).

The following records may be (but are not required to be) withheld for a specific period of time:
  1. Investigation of complaints against city employees. Records containing materials from investigations of complaints against public employees or relating to the suspension or termination of an employee are not subject to disclosure until 10 days after the investigation is complete or otherwise terminated (O.C.G.A. § 50-18-72(a)(8)).
  2. Appointment of the executive head. Records that would identify all of the applicants for the position of executive head of an agency (such as city manager) may be withheld until up to three finalists are selected, unless the public has had access to the application and interview process (O.C.G.A. § 50-18-72(a)(11)). 14 days prior to the final decision, the names and application materials of as many as three finalists must be made available to the public upon request, unless the applicant no longer seeks the position. However, the city may be required to provide information regarding the number of applicants and the race and gender of those applicants.
  3. Land acquisition. Real estate appraisals, engineering or feasibility estimates, or other records relating to the acquisition of real property may be withheld only until the transaction has been completed or terminated (O.C.G.A. § 50-18-72(a)(9)). 
  4. Pending bids and proposals. Competing bids and proposals may be withheld until such time as the final award of the contract is made, the project is abandoned, or the agency takes a public vote regarding the sealed bid or proposal, whichever comes first (O.C.G.A. § 50-18-72(a)(10)).
  5. Pending investigations. Records of law enforcement, prosecution, or regulatory agencies in any pending investigation, other than the initial incident report, may be withheld until the prosecution or any direct litigation is final or terminated (O.C.G.A. § 50-18-72(a)(4)). However, note that this exception does not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.
  6. Attorney-client privilege and attorney work product. Records subject to the attorney-client privilege and confidential attorney work product may be withheld (O.C.G.A. §§ 50-18-72(a)(41), (42)). However, if an attorney is conducting an investigation on behalf of an agency, the legal conclusions of the attorney are protected. Factual findings are not protected unless the investigation pertains to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee of the agency. 
An action to enforce the Open Records Act may be brought by any person, firm, corporation or other entity, and by the Attorney General. The Attorney General is also authorized to file a criminal action against individuals who violate the open records law. Anyone who knowingly and willfully violates the open records law, by refusing access, failing to provide documents within the requisite time, or “attempting to frustrate access by intentionally making records difficult to obtain or review”, may be found guilty of a misdemeanor and may be subject to a fine not to exceed $1000 for the first violation. A civil penalty or criminal fine not to exceed $2500 can be imposed for each additional violation committed within a twelve-month period. Additionally, civil penalties may also be imposed by the court on any person who negligently violates the terms of the statute. As with the open meetings law, the Attorney General or any other person, firm, or corporation may bring a civil action in superior court to require the municipal records custodian to release records, and the city may be required to pay the complaining party’s attorney’s fees if the records custodian acted without substantial justification in denying an open records request (O.C.G.A. § 50-18-73 et seq.).

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