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The Georgia Open Records Act

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Presentation on theme: "The Georgia Open Records Act"— Presentation transcript:

1 The Georgia Open Records Act

2 Official Code of Georgia Annotated (Lawyer Speak)
O. C. G. A. Official Code of Georgia Annotated (Lawyer Speak)

3 House Bill 397 Passed by the Georgia General Assembly in 2012, and changed the Open Records Act. Original provisions of the Act are in white, changes are in red italics.

4 Purpose “The General Assembly finds and declares that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.”

5 Purpose “The General Assembly further finds and declares that there is a strong presumption that public records should be made available for public inspection without delay. This article shall be broadly construed to allow inspection of governmental records.”

6 Purpose “The exceptions set forth in this article, together with any other exception located elsewhere in the Code, shall be interpreted narrowly to exclude only those portions of records addressed by such exception.” -O. C. G. A

7 Approach of this Law “All public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure.” - O. C. G. A (a)

8 Applies to: “. . . Any state office, department, division, board, bureau, commission, authority, or other separate unit of state government created or established by law.” - O. C. G. A (1)

9 Applies to: “ 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 the 33 1/3 percent of its general operating budget from payments from such political subdivisions.” O. C. G. A (1)

10 Applies to: “This Code section shall be interpreted narrowly so as to exclude from disclosure only that portion of a public record to which an exclusion is directly applicable all other portions of a record shall be provided.” - O. C. G. A (b)

11 Public Records: “ all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency . . .

12 Public Records: or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.” - O. C. G. A (2)

13 Court Records “ All documents, papers, letters, maps, books (except books formally organized in libraries), microfilm, magnetic tape, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance, or, in the necessary performance of any judicial function

14 Court Records Created or received by an official of the Supreme Court, Court of Appeals, or any superior, state, juvenile, probate or magistrate court.” - O. C. G. A (2)

15 Court Records “ Includes records of the offices of the judge, clerk, prosecuting attorney, public defender, court reporter, or any employee of the court.” - O. C. G. A (2)

16 How Requested? “. . . may be made to the custodian of a public record either orally or in writing.” - O. C. G. A (B)

17 How Requested? The enforcement provisions of the law “shall not be available when such request is made orally.” - O. C. G. A (A)(1)(B)(3)

18 How Requested? An agency may, but shall not be obligated to, require that all written requests be made to one of the following: -agency director, chairperson or CEO -senior official at any satellite office -designated custodian of records -open records officer - O. C. G. A (b)(1)(B)

19 How Requested? CYA—If the request is not in writing, you write it out. Time and date stamp all requests.

20 The Clock’s Running The absence of the designated official “. . . shall not be permitted to delay the agency’s response. - O. C. G. A (b)(1)(B)

21 How Quick? “. . .within a reasonable amount of time not to exceed three business days of receipt of a request. . .” - O. C. G. A (b)(1)(A)

22 How Quick? If the request is so large that it will take more than three days, within the three days “. . . the agency shall. . .provide the requester with a description of such records and a timeline for when the records will be available for inspection.” - O. C. G. A (b)(1)(A)

23 How Quick? The date of receipt, no matter when during business hours in the day, is day one of the three days.

24 Response to the Request
--Determine if the records requested are open or closed. --If open, provide the records as quickly as possible --If closed, and out of the ordinary, contact your attorney within the 3 days --If closed, respond in writing, citing the specific legal authority for non-disclosure

25 If records are closed. . . Take The Three Days!!

26 Response for Open Records
--Provide the copies as soon as possible --Have a written policy on “free” copies --If open and a large order, respond in 3 days with an estimate of the time to copy --written description of materials --time table for each step --estimate of cost (estimate high)

27 Responses for Open Records
Include: --the format the information is in --paper --film --electronic documents --optical

28 Responses for Open Records
Include: --content (what information is being provided --any information that is redacted --components if any

29 Responses for Open Records
Include: --where and when the information will be provided --detailed timetable --how long to collect --how long to copy --how long to redact

30 Responses for Open Records
Costs: --you may charge for searching for records. --you should have a written policy on how searches are conducted and who (by job title) does the search.

31 Copiers “At the time of inspection, any person may make photographic copies or other electronic reproductions of the records using suitable portable devices brought to the place of inspection.” - O. C. G. A (b)(1)(B)

32 Copiers But you have a responsibility to care for those documents. You must “. . .establish necessary safeguards against the removal or loss of records and such further safeguards as may be required. . .” - O. C. G. A (6)

33 Charges $ “An agency may impose a reasonable charge for the search, retrieval, redaction, and production or copying costs for production of records. . .” “an agency shall utilize the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents.”

34 Charges $ “Where fees for certified copies or other copies or records are specifically authorized such fee shall apply. . .” - O. C. G. A (C)(1)

35 Charges $ “. . . the charge for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and traing to perform the request . . .” - O. C. G. A (c)(1)

36 Charges $ “. . . provided, however, that no charge shall be made for the first quarter hour.” - O. C. G. A (c)(1)

37 Charges $ “In addition to [search charges]. . . an agency may charge a fee for the copying of records or data not to exceed ten cents per page for letter or legal size documents, or the actual cost of producing the copy.” - O. C. G. A (c)(2)

38 Charges $ “In the case of electronic records, the agency may charge the actual cost of the media on which the records or data are produced.” - O. C. G. A (C)(2)

39 Charges $ “Whenever any person has requested to inspect or copy a public record and does not pay the cost for such retrieval. . .the agency shall be authorized to collect such charges in any manner authorized by law for the collection of taxes, fees or assessments. . .” O. C. G. A (C)(3)

40 Charges $ “In any instance in which an agency will seek costs in excess of $ inform the requester of the estimate of the costs, and the agency may defer search and retrieval of the records until the requester agrees to pay the estimated costs. . .” - O. C. G. A (d)

41 Charges $ “In any instance Exceeds $500.00, an agency may insist on prepayment of the costs prior to beginning search, retrieval, review, or production of the records.” - O. C. G. A (d)

42 Charges $ If a person has not paid for a previous search and requests another search, “an agency may require prepayment for all future requests until the costs for the prior production of records have been paid or the dispute regarding payment resolved.” - O. C. G. A (d)

43 Charges $ I cannot find the provisions which used to be in the law about how estimates could be altered.

44 Redacting Information
When much of a document can be opened, but a small amount of information must be closed, the closed information can be “redacted” and the document provided in that form.

45 Redacting Information
To redact information properly: --make a copy of the document --physically remove the closed information --make a copy of the copy with a “black” background --keep a copy of the redacted document in the file with the original

46 What is Closed? Records that don’t exist already:
”. . . nothing . . .shall require agencies to produce records in response to a request if such records did not exist at the time of the request.” - O. C. G. A (b)(1)(A)

47 What is Closed? Reports, summaries, or compilations that do not exist already. - O. C. G. A (j)

48 What is Closed? Records being in electronic format does NOT exclude their production, so long as the information can be produced “. . . using existing computer programs that the agency uses in the ordinary course of business. . .” - O. C. G. A (f)

49 What is Closed? Electronic records can be provided in any standard electronic format (see IT) -O. C. G. A (f)

50 What is Closed? Materials closed by Federal law and Presidential Directive: --Privacy Act --Executive Order (classified information) --Medical Information (HIPPA) - O. C. G. A (a) - O. C. G. A (a)(1)

51 What is Closed? Materials closed by order of any court in Georgia. - O. C. G. A (a) All juvenile court records - O. C. G. A (a)

52 What is Closed? “Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.” - O. C. G. A (a)(2) No longer includes autopsy records

53 What is Closed? Law enforcement records that are “. . . reasonably likely to disclose the identiry of a confidential source, disclose confidential investigative or prosecution material which would endanger the life or physical safety of any person. . .” - O. C. G. A (a)(4)

54 What is Closed? Pending investigations or prosecution, other than initial police reports when no longer pending . . .”provided further that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.” - O. C. G. A (a)(4)

55 What is Closed? Individual Georgia Uniform Vehicle Accident Reports, except: --written statement of need --personal, professional, or business connection with a party in the accident. --was a witness to the accident --was allegedly or actually injured

56 What is Closed? Individual Georgia Uniform Vehicle Accident Reports, except: --is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident --is alleged to be liable to another party as a result of the accident

57 What is Closed? Individual Georgia Uniform Vehicle Accident Reports, except: --is a prosecutor or publicly employed law enforcement officer --is an attorney stating that he/she needs the reports --represents a news agency

58 What is Closed? Individual Georgia Uniform Vehicle Accident Reports, except: --conducting research in the public interest for such purposes as accident prevention, but only for accidents more than 30 days prior - O. C. G. A (a)(5)

59 What is Closed? But for researchers “in the public interest” you must redact: --name --street address --telephone number --driver’s license number

60 What is Closed? Georgia law does not require redacting a Social Security Number, but the Privacy Act does.

61 What is Closed? Jury List data
- O. C. G. A (a)(5) Confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee. - O. C. G. A (a)(7)

62 What is Closed? “Material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action. . .

63 What is Closed? . . . or the investigation is otherwise concluded . . .provided that this paragraph shall not be interpreted to make such investigatory records privileged.” - O. C. G. A (a)(8)

64 What is Closed? Confidential Evaluations of potential employees - O. C. G. A (a)(7) Real Estate appraisals, engineering or feasibility estimates, by state for property acquisition - O. C. G. A (a)(9)

65 What is Closed? Pending, rejected, or deferred sealed bids or sealed proposals and detailed cost estimates related thereto. - O. C. G. A (a)(10)

66 What is Closed? “Records which identify persons applying for or under consideration for employment or appointment as executive head of an agency or a unit of the University Sytem of Georgia; provided that And then there are lots of exceptions and conditions. See your lawyer quick. - O. C. G. A (a)(11)

67 What is Closed? Staff services for members of the General Assembly - O. C. G. A (a)(12) Records of historical value sold to or donated to a public institution (not more than 75 years) - O. C. G. A (a)(13)

68 What is Closed? DNR information relating to the location and character of historic properties. - O. C. G. A (a)(14) Records of farm water use by individual farms - O. C. G. A (a)(15)

69 What is Closed? “Agricultural or food system records, data or information . . .part of the critical infrastructure. . .” - O. C. G. A (a)(16)

70 What is Closed? “Records, data, or information collected, recorded, or otherwise obtained that is deemed confidential by the Debartment of Agriculture for the purposes of the National Animal Identification system. . .” - O. C. G. A (a)(17)

71 What is Closed? Records that contain site-specific information regarding the occurrence of rare species of plants or animals or the location of sensitive natural habitats - O. C. G. A (a)(18)

72 What is Closed? “Records that reveal the names, home addresses, telephone numbers, security codes, addresses, or any other data or information developed, collected, or received by counties or municipalities in connection with neighborhood watch or public safety notification programs O. C. G. A (a)(19)

73 What is Closed? PII-“Records that reveal an individual’s social security number, mother’s birth name, credit card information, debit card information, bank account information, account number, utility account number, password used to access his or her account, financial data or information, insurance or medical information in all records. . .

74 What is Closed? Unlisted telephone number if so designated in a public record, personal address or cellular telephone number, day and month of birth, and information regarding public utility, television, internet or telephone accounts. . .” with exceptions. See your lawyer. - O. C. G. A (a)(20)

75 What is Closed? “Records concerning public employees that reveal PII” - O. C. G. A (a)(21)

76 What is Closed? “Records of the Department of Early Care and Learning that contain: -the Names of children and day and month of birth -PII of parents, immediate family members and emergency contact -Names or PII of individuals who report violations - O. C. G. A (a)(22)

77 What is Closed? “. . . Information that would disclose or might lead to the disclosure of. . . electronic signatures.” - O. C. G. A (a)(23)

78 What is Closed? “Records acquired by an agency for the purpose of establishing or implementing. . . A rideshare or carpooling program.” - O. C. G. A (a)(24)

79 What is Closed? “Records the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the nondisclosure of which is necessary for the protection of life, safety, or public property, which shall be limited to: - Security plans and vulnerability assessments for public utilities etc.

80 What is Closed? . . . Limited to: -existence, nature, location or function of security devices designed to protect against terrorist attacks, -plans for protection against terrorist attacks -plans which if made public could compromise security. . .

81 What is Closed? . . . Limited to: -records of any government sponsored programs concerning training relative to governmental security measures which would identify persons being trained or instructors. - O. C. G. A (a)(25)

82 What is Closed? “Unless requested by the accused in a criminal case, public records of 911 systems containing PII of person placing a call . - O. C. G. A (a)(26)

83 What is Closed? “Records of athletic or recreational programs, that include PII of a child or children 12 years of age or under. - O. C. G. A (a)(27)

84 What is Closed? “Records of the State Road and Tollway Authority which would reveal the financial accounts or travel history of any individual who is a motorist upon any toll project.” - O. C. G. A (a)(28)

85 What is Closed? “Records maintained by public postsecondary educational institutions in the state and associated foundations That contain PII concerning donors or potential donors .” - O. C. G. A (a)(29)

86 What is Closed? “Records of MARTA or any other transit system connected to TransCard or SmartCard that reveal PII and travel history of individuals.” - O. C. G. A (a)(30)

87 What is Closed? “Building mapping information produced and maintained pursuant to Article 10 of Chapter 3 of Title 38” (statewide early responder mapping system) - O. C. G. A (a)(31)

88 What is Closed? “Any trade secrets obtained from a person or business entity that are required by law to be submitted to an agency.” - O. C. G. A (a)(34)

89 What is Closed? “Data, records, or information of a proprietary nature, produced or collected by or for faculty or staff of state institutions of higher learning, or other government agencies in the conduct of or as a result of study or research on commercial, scientific technical or scholarly issues.” - O. C. G. A (a)(35)

90 What is Closed? “Any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of an institution of higher learning in the conduct of study on scientific, medical, technical, scholarly or artistic issues until published, patented, or publicly disseminated. -O. C. G. A (a)(36)

91 What is Closed? “Any record that would not be subject to disclosure, or the disclosure of which would jeopardize the receipt of federal funds.” - O. C. G. A (a)(37)

92 What is Closed? “Records consisting of questions, scoring keys, and other materials; constituting a test . . .[given in schools] - O. C. G. A (a)(38)

93 What is Closed? “Records disclosing PII of persons participating in research on commercial, scientific, technical, medical, scholarly, or artistic issues conducted by Dept. of Community Health, Dept. of Public Health, or Dept. of Behavioral Health and Developmental Disabilities. -O. C. G. A (a)(39)

94 What is Closed? “Any permanent records maintained by a judge of the probate court pursuant. . .to weapons carry licenses. . . or other possession of firearms matter.” - O. C. G. A (a)(40)

95 What is Closed? “Records containing communications subject to the attorney-client privilege recognized by state law.” - O. C. G. A (a)(41) ”Confidential attorney work product.” - O. C. G. A (a)(42)

96 What is CLosed “Records consisting of any computer program or computer software used or maintained in the course of operation of a public office or agency.” - O. C. G. A (a)(44)

97 What is Closed? “Records relating to rating plans, rating systems, underwriting rules, surveys. . .used to provide or administer liability insurance or self-insurance coverage to an agency.” - O. C. G. A (a)(45)

98 What is Closed? “Documents maintained by the Department of Economic Development (DED) pertaining to an economic development project until the project is secured by binding commitment. - O. C. G. A (a)(46) Training Programs related to DED projects. -O. C. G. A (a)(47)

99 What is Closed? Court records have specific provisions closely controlled by judges.

100 Other than that It’s all open.

101 Questions?

102 Donald B. Schewe, CRM, FAI

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