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Consumer Credit Research Foundation v. Board of Regents of University System of Georgia

Court of Appeals of Georgia, First Division

May 4, 2017

CONSUMER CREDIT RESEARCH FOUNDATION
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         At issue in this appeal is whether state agencies have the discretion to release materials related to academic research in response to a request made under the Georgia Open Records Act, even if the Act specifically exempts the materials from disclosure to the public and a private party has sued to enjoin their release. The trial court concluded that state agencies have such discretionary authority, leading the court to grant summary judgment to the Board of Regents of the University System of Georgia and the Campaign for Accountability (collectively, the "University Defendants") and to deny summary judgment to the Consumer Credit Research Foundation (the "Foundation"). However, in Bowers v. Shelton, 265 Ga. 247, 248-249 (1) (453 S.E.2d 741) (1995), the Supreme Court of Georgia held that a state agency's compliance with the specific exceptions to disclosure contained in the Open Records Act is mandatory rather than discretionary, and that private parties may sue to enjoin an agency from releasing records that fall within one of those exceptions. Based on the Bowers decision, the trial court erred in holding that a state agency's compliance with the specific exceptions to disclosure for materials related to academic research was discretionary. Accordingly, because the trial court relied on an erroneous legal theory, we vacate the trial court's summary judgment order and remand for further proceedings consistent with this opinion.

         The relevant facts are undisputed. In November 2013, the Foundation entered into a consulting agreement with the Kennesaw State University Research and Service Foundation. In accordance with the agreement, a Kennesaw State University ("KSU") professor conducted statistical research and analysis relating to "payday" loans, which the professor incorporated into a paper that was published in 2014.

         In June 2015, the Campaign for Accountability ("CFA") sent a request to KSU under the Georgia Open Records Act, OCGA § 50-18-70 et seq., for copies of certain correspondence, including e-mails and other communications between the KSU professor and the Foundation relating to the professor's payday-loan research (the "research correspondence"). KSU informed the CFA that it did not oppose the release of the research correspondence in redacted form and notified the Foundation that it planned to release the redacted correspondence to the CFA in response to the open records request.

         The Foundation objected to KSU releasing the research correspondence to the CFA. Because KSU is part of the University System of Georgia, the Foundation filed the instant action for declaratory and injunctive relief against the Board of Regents in the Superior Court of Fulton County to prevent the release of the research correspondence under the Open Records Act. The trial court granted the CFA's motion to intervene in the action as a party defendant.

         The parties filed cross-motions for summary judgment regarding the release of the research correspondence. The Foundation emphasized that the Open Records Act contains a list of specific exceptions to public disclosure in OCGA § 50-18-72 (a) and argued that the research correspondence was specifically exempt from disclosure under two of those exceptions for academic research-related materials, OCGA § 50-18-72 (a) (35) and (36) (the "research exceptions").[1] The Foundation further argued that because the research exceptions to disclosure applied, KSU was prohibited from releasing the research correspondence to the CFA.

         The University Defendants responded that the Foundation had failed to prove that the research correspondence fell within either of the two research exceptions found in the Open Records Act. The University Defendants further responded that even if the research correspondence fell within the two research exceptions, those exceptions simply permitted, but did not require, KSU to withhold the correspondence from disclosure. Consequently, the University Defendants argued, KSU had the discretionary authority to release the research correspondence to the CFA even if the research exceptions found in OCGA § 50-18-72 (a) (35) and (36) applied.

         In response to the cross-motions for summary judgment, the trial court granted summary judgment to the University Defendants and denied it to the Foundation. The trial court ruled that the two research exceptions in the Open Records Act authorized a state agency to withhold research materials covered by the exceptions from public disclosure, but that the Act did not mandate nondisclosure. Based on its conclusion that the research exceptions did not place a mandatory duty on state agencies to withhold research materials covered by the exceptions from public disclosure, the trial court ruled that KSU had the discretion to release the research correspondence in response to the Open Records Act request made by the CFA, even assuming that the correspondence fell within one or both of the research exceptions. The trial court ultimately did not resolve whether any of the research correspondence fell within the two research exceptions contained in the Open Records Act. The Foundation now appeals the trial court's summary judgment order.

         Our review of a trial court's statutory interpretation is de novo, Kennedy Dev. Co. v. Camp, 290 Ga. 257, 258 (719 S.E.2d 442) (2011), and we begin our review with a summary of the applicable statutory framework. The Georgia Open Records Act authorizes the personal inspection and copying of public records, "except those which by order of a court of this state or by law are specifically exempted from disclosure." OCGA § 50-18-71 (a). As previously noted, several specific exceptions to disclosure are listed in OCGA § 50-18-72 (a) of the Act, including the two research exceptions found in OCGA § 50-18-72 (a) (35) and (36).

         "Because public policy strongly favors open government, any purported statutory exemption from disclosure under the Open Records Act must be narrowly construed." (Punctuation, footnote, and emphasis omitted.) City of Atlanta v. Corey Entertainment, 278 Ga. 474, 476 (1) (604 S.E.2d 140) (2004). See OCGA § 50-18-70 (a). "However, although exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed in derogation of its express terms." (Citation and punctuation omitted.) Evans v. Ga. Bureau of Investigation, 297 Ga. 318, 319 (773 S.E.2d 725) (2015). "[E]ven when documents are found to be public records, and therefore open for inspection by the public, there may be some material contained therein which for competing public policy reasons are not subject to disclosure." Harris v. Cox Enterprises, 256 Ga. 299, 300 (348 S.E.2d 448) (1986) (per curiam) (on motion for reconsideration), The Open Records Act also authorizes actions to enforce its provisions. Specifically, the Act grants legal and equitable jurisdiction to the superior courts of this state "to entertain actions against persons or agencies having custody of records open to the public under [the Open Records Act] to enforce compliance with the provisions of [the Act]." OCGA § 50-18-73 (a). Enforcement actions "may be brought by any person, firm, corporation, or other entity." Id. And while the Open Records Act does not authorize an award of compensatory or punitive damages to a party bringing a civil enforcement action, McBride v. Wetherington, 199 Ga.App. 7, 8 (403 S.E.2d 873) (1991), a court can sanction state agencies that negligently violate the Act with civil penalties and award attorney fees under certain circumstances. OCGA §§ 50-18-73 (b); 50-18-74 (a).

         Mindful of this statutory framework, we turn to the specific arguments raised here. On appeal, the Foundation argues that the trial court erred in ruling that KSU had the discretion to release the research correspondence to the CFA, even if the correspondence was specifically exempt from disclosure under the research exceptions found in OCGA § 50-18-72 (a) (35) and (36) of the Open Records Act. According to the Foundation, the trial court's ruling is inconsistent with the reasoning and analysis of the Georgia Supreme Court in Bowers v. Shelton, 265 Ga. 247, 248-249 (1) (453 S.E.2d 741) (1995). We agree.

         In Bowers, the Supreme Court addressed the question whether a private party can bring suit to enjoin the disclosure of public records under the Open Records Act. 265 Ga. at 248-249 (1). In addressing this question, the Supreme Court compared the Georgia Open Records Act to the federal Freedom of Information Act, 5 USC § 552 et seq. ("FOIA"). Bowers, 265 Ga. at 248-249 (1). The Supreme Court noted that the FOIA's "provisions exempting specified information from disclosure [are] meant only to permit the governmental agency to withhold certain information, and [are] not meant to mandate nondisclosure." Id. at 248 (1). See 5 USC § 552 (b); Chrysler Corp. v. Brown, 441 U.S. 281, 290-294 (II) (99 S.Ct. 1705, 60 L.Ed.2d 208) (1979). Thus, the Georgia Supreme Court pointed out, the FOIA "imposes no affirmative duty on an agency to withhold information sought, " even if the information is specifically exempted from disclosure. Bowers, 265 Ga. at 248 (1).

         The Supreme Court emphasized, however, that the Georgia Open Records Act "materially differs from the FOIA." Bowers, 265 Ga. at 249 ...


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