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Campaign for Accountability v. Consumer Credit Research Foundation

Supreme Court of Georgia

June 18, 2018

CAMPAIGN FOR ACCOUNTABILITY
v.
CONSUMER CREDIT RESEARCH FOUNDATION. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
v.
CONSUMER CREDIT RESEARCH FOUNDATION.

          NAHMIAS, Justice.

         In this case, the Court of Appeals held, based on its reading of this Court's decision in Bowers v. Shelton, 265 Ga. 247 (453 S.E.2d 741) (1995), that Georgia's Open Records Act prohibits the disclosure of all information that is not required to be disclosed based on the ORA exemptions listed in OCGA § 50-18-72 (a). See Consumer Credit Research Found. v. Bd. of Regents of the Univ. System of Georgia, 341 Ga.App. 323, 329 (800 S.E.2d 24) (2017). We granted a writ of certiorari to address that issue, and as explained below, we now disapprove the Court of Appeals' broad reading of Bowers and reverse the court's judgment.

         1. In November 2013, the Consumer Credit Research Foundation (CCRF) entered a consulting agreement with the Kennesaw State University Research and Service Foundation under which Dr. Jennifer Lewis Priestley, a professor at Kennesaw State University (KSU), would research the effects of payday loans on the financial health of their consumers. As part of this project, Dr. Priestley - but not KSU or the KSU foundation - signed a confidentiality agreement with CCRF agreeing not to disclose any information "relating in any manner to CCRF or CCRF's contributing sponsors." Dr. Priestley published an article about her findings in December 2014.

         In June 2015, the Campaign for Accountability (CFA) sent a request to KSU under Georgia's so-called Open Records Act, see OCGA §§ 50-18-70 to 50-18-77, [1] asking for copies of all correspondence, electronic or otherwise, between Dr. Priestley and a number of organizations and individuals, including CCRF and its chairman and CEO. The request explained that CFA sought the information "to educate the public about the true financial interests behind purportedly academic studies claiming payday loans do not pose a financial harm to borrowers." After KSU notified CFA and CCRF that it intended to disclose the requested records subject to possible redactions, CCRF filed a complaint in superior court against the Board of Regents of the University System of Georgia (the Board), because KSU is part of the university system. CCRF amended its complaint in April 2016. CCRF sought a declaratory judgment that the records requested by CFA are exempt from disclosure under OCGA § 50-18-72 (a) (35) and (36) and a permanent injunction prohibiting the Board from disclosing the records. The trial court granted CFA's motion to intervene in the case as a party defendant.

         In May 2016, all three parties moved for summary judgment. After a hearing on August 11, the trial court granted summary judgment to the Board and CFA on August 19. The court ruled that the Board could choose to disclose the requested records even if disclosure was not required by the Open Records Act; the court did not decide whether the requested records actually fell within any disclosure exemption. The court also granted a stay to prevent disclosure of the records until any appeal was resolved. CCRF appealed.

In May 2017, the Court of Appeals issued its opinion, which concluded:
[I]n light of the Supreme Court's decision in Bowers, the trial court erred in ruling that KSU had the discretion to release the research correspondence in response to CFA's open record request, even if [CCRF] brought suit to enjoin the disclosure and demonstrated that the correspondence was exempt from disclosure under OCGA § 50-18-72 (a) (35) or (36). Rather, pursuant to the analysis and reasoning of the Bowers decision, [CCRF] was entitled to enjoin KSU from disclosing the research correspondence to the CFA, if [CCRF] showed that the correspondence fell within one or both of the research exceptions found in the Open Records Act.

Consumer Credit Research Found., 341 Ga.App. at 329. The Court of Appeals therefore vacated the trial court's order and remanded the case for the trial court to determine whether an exemption applied to bar disclosure. See id. CFA and the Board filed petitions for certiorari, which this Court granted.

         2. Under our State's Open Records Act, "[a]ll 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." OCGA § 50-18-71 (a). Government agencies therefore have a duty to disclose public records unless relieved of that duty by a specific exemption or court order.[2]Many of the exemptions from disclosure provided by law are found in OCGA § 50-18-72 (a), which says: "Public disclosure shall not be required for records that are: . . ., " followed by a list of over 50 enumerated types of records.

         On that list are two exemptions dealing with certain records collected or produced "in the conduct of, or as a result of, study or research" by certain state agencies and affiliated individuals, including state universities and their faculty members. OCGA § 50-18-72 (a) (35) & (36).[3] CCRF argues that because the records CFA seeks are covered by these open records exemptions in § 50-18-72 (a), the Board cannot disclose the records. Our analysis will proceed, as the trial court's did, on the assumption that the requested records fit within one or both of these § 50-18-72 (a) exemptions.

         CCRF contends that the phrase "exempted from disclosure" in OCGA § 50-18-71 (a) means "prohibited from disclosure, " and that "disclosure shall not be required" as used in § 50-18-72 (a) means "disclosure shall be prohibited." Reading the statutory text as CCRF suggests would be contrary, however, to the English language. See Smith v. Northside Hosp., Inc., 302 Ga. 517, 521 (807 S.E.2d 909) (2017) ("In construing a statute, 'we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.'" (citation omitted)). In a legal context, "exempt" ordinarily means "not subject or bound by a rule, obligation, etc. applying to others, " Webster's New World College Dictionary 497 (4th ed. 2007), that is, freed from an otherwise binding obligation. "Require" means "to demand by virtue of a law, regulation, etc., " id. at 1219, so "not required" similarly means freedom from what is otherwise demanded by law. "Prohibit, " by contrast, means "to forbid by law or by an order, " id. at 1147, that is, to eliminate freedom of action. Thus, being "exempted" from a disclosure requirement or "not required" to disclose provides a freedom that is contrary to being "prohibited" to disclose.

         A few examples illustrate the ordinary usages of these words. Patriotic women who were exempt from the draft were not prohibited from volunteering for military service. Owners of vehicles that are exempt from emissions testing requirements are not prohibited from testing their vehicles' emissions. If a teacher tells his students that an extra credit assignment is not required, a student who completes the work would be quite annoyed if the teacher rejected it as prohibited. And a daughter surprising her father with a birthday visit after he had told her that a visit was not required would be rather confused if she found the door barred by her angry father shouting that she should have understood that her visit was prohibited. Read naturally and reasonably, OCGA §§ 50-18-71 (a) and 50-18-72 (a) do not prohibit disclosure of records simply because those records are not required to be disclosed by a specific exemption from the ORA's general disclosure duty.

         CCRF next maintains that we must adopt its interpretation of OCGA § 50-18-72 (a) because it is well understood that at least some of the records included in the § 50-18-72 (a) exemptions cannot be lawfully disclosed. And, CCRF argues, what applies to one exemption must be applied to all, meaning that every record that comes within a § 50-18-72 (a) exemption cannot be disclosed. CCRF points to subsection (a) (1) - the very first exemption listed in § 50-18-72 - which applies to records that are "[s]pecifically required by federal statute or regulation to be kept confidential." CCRF asserts that if we conclude that an agency may, in its discretion, disclose records covered by the § 50-18-72 (a) exemptions, we would be concluding that records required to be kept confidential by federal statutes and regulations can instead be legally disclosed. That is true only in this limited sense: § 50-18-72 (a) (1) does not prohibit disclosure of the records to which it applies, so an agency that decides to release documents that a federal statute or regulation requires to be kept confidential would not violate the Open Records Act. The agency would, however, violate the federal statute or regulation. The fact that the Georgia statute does not add an extra prohibition on top of the federal statute or regulation does not create any conflict or inconsistency with the federal law. The same is true of other § 50-18-72 (a) exemptions that invoke the confidentiality requirements of other laws, like the tax statute discussed below in relation to Bowers.

         CCRF also argues that if the ordinary understanding of "shall not be required" is applied to § 50-18-72 (a), it would render other language in the statute surplusage. See Beneke v. Parker, 285 Ga. 733, 734 (684 S.E.2d 243 (2009) (explaining that courts should "avoid a construction that makes some language mere surplusage"); Berryhill v. Georgia Community Support & Solutions, Inc., 281 Ga. 439, 441 (638 S.E.2d 278) (2006) ("Courts should give a sensible and intelligent effect to every part of a statute and not render any language superfluous."). CCRF points to language in OCGA § 50-18-72 (a) (16), which deals with agricultural or food system records that are part of the critical infrastructure, and (17), which deals with confidential records of the national animal identification system. Each of these subsections includes a proviso that "nothing in this paragraph shall prevent the release of such records, data, or information to another state or federal agency if the release . . . is necessary to prevent or control disease or to protect public health, safety, or welfare."[4] These grants of express authority to release records are needed, however, because the final sentences of these subsections say that such critical infrastructure and national animal identification system records "shall be subject to disclosure only upon [a court] order." Thus, these subsections are different from most of the other exemptions in § 50-18-72 (a) - including (a) (35) and (36) - because they have language expressly prohibiting disclosure without a court order. The express grant of discretion to disclose certain records to other government agencies in limited circumstances is necessary to allow such disclosure. In other words, disclosure of the records covered by subsections (a) (16) and (17) is prohibited not because they are one of the more than 50 types of records for which "[p]ublic disclosure shall not be required, " but because the language of those particular subsections expressly prohibits disclosure without a court order, unless the disclosure fits within the limited grant of discretion to disclose to another government agency.

         Express disclosure prohibitions are found in a couple other § 50-18-72 (a) exemptions as well, supporting the conclusion that such prohibitions do not automatically apply to every exemption in the list. See OCGA § 50-18-72 (a) (5) ("Georgia Uniform Motor Vehicle Accident Reports shall not be available in bulk for inspection or copying by any person absent a written statement showing the need for each such report pursuant to the requirements of this Code section."), (34) ("[T]he agency shall withhold [certain trade secret] records"). If saying that ...


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