GA Code § 50-18-71 (2021)
2021 Georgia Code|Title 50 - State Government|Chapter 18 - State Printing and Documents|Article 4 - Inspection of Public Records|§ 50-18-71. Right of Access; Timing; Fees; Denial of Requests; Impact of Electronic Records

  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. Records shall be maintained by agencies to the extent and in the manner required by Article 5 of this chapter.       Agencies shall produce for inspection all records responsive to a request within a reasonable amount of time not to exceed three business days of receipt of a request; provided, however, that nothing in this chapter shall require agencies to produce records in response to a request if such records did not exist at the time of the request. In those instances where some, but not all, records are available within three business days, an agency shall make available within that period those records that can be located and produced. In any instance where records are unavailable within three business days of receipt of the request, and responsive records exist, the agency shall, within such time period, provide the requester with a description of such records and a timeline for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.   A request made pursuant to this article may be made to the custodian of a public record orally or in writing. An agency may, but shall not be obligated to, require that all written requests be made upon the responder's choice of one of the following: the agency's director, chairperson, or chief executive officer, however denominated; the senior official at any satellite office of an agency; a clerk specifically designated by an agency as the custodian of agency records; or a duly designated open records officer of an agency; provided, however, that the absence or unavailability of the designated agency officer or employee shall not be permitted to delay the agency's response. 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. Notwithstanding any other provision of this chapter, an agency may, in its discretion, provide copies of a record in lieu of providing access to the record when portions of the record contain confidential information that must be redacted.     Any agency that designates one or more open records officers upon whom requests for inspection or copying of records may be delivered shall make such designation in writing and shall immediately provide notice to any person upon request, orally or in writing, of those open records officers. If the agency has elected to designate an open records officer, the agency shall so notify the legal organ of the county in which the agency's principal offices reside and, if the agency has a website, shall also prominently display such designation on the agency's website. In the event an agency requires that requests be made upon the individuals identified in subparagraph (B) of paragraph (1) of this subsection, the three-day period for response to a written request shall not begin to run until the request is made in writing upon such individuals. An agency shall permit receipt of written requests by email or facsimile transmission in addition to any other methods of transmission approved by the agency, provided such agency uses email or facsimile in the normal course of its business.   The enforcement provisions of Code Sections 50-18-73 and 50-18-74 shall be available only to enforce compliance and punish noncompliance when a written request is made consistent with this subsection and shall not be available when such request is made orally.       An agency may impose a reasonable charge for the search, retrieval, redaction, and production or copying costs for the production of records pursuant to this article. An agency shall utilize the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents. Where fees for certified copies or other copies or records are specifically authorized or otherwise prescribed by law, such specific fee shall apply when certified copies or other records to which a specific fee may apply are sought. In all other instances, 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 training to perform the request; provided, however, that no charge shall be made for the first quarter hour.   In addition to a charge for the search, retrieval, or redaction of records, an agency may charge a fee for the copying of records or data, not to exceed 10› per page for letter or legal size documents or, in the case of other documents, the actual cost of producing the copy. In the case of electronic records, the agency may charge the actual cost of the media on which the records or data are produced.   Whenever any person has requested to inspect or copy a public record and does not pay the cost for search, retrieval, redaction, or copying of such records when such charges have been lawfully estimated and agreed to pursuant to this article, and the agency has incurred the agreed-upon costs to make the records available, regardless of whether the requester inspects or accepts copies of the records, the agency shall be authorized to collect such charges in any manner authorized by law for the collection of taxes, fees, or assessments by such agency.     In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days or in the event the search and retrieval of records is delayed pursuant to this subsection or pursuant to subparagraph (b)(1)(A) of this Code section, then no later than three business days after the records have been retrieved. In any instance in which an agency will seek costs in excess of $25.00 for responding to a request, the agency shall notify the requester within a reasonable amount of time not to exceed three business days and 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 unless the requester has stated in his or her request a willingness to pay an amount that exceeds the search and retrieval costs. In any instance in which the estimated costs for production of the records exceeds $500.00, an agency may insist on prepayment of the costs prior to beginning search, retrieval, review, or production of the records. Whenever any person who has requested to inspect or copy a public record has not paid the cost for search, retrieval, redaction, or copying of such records when such charges have been lawfully incurred, an agency may require prepayment for compliance with all future requests for production of records from that person until the costs for the prior production of records have been paid or the dispute regarding payment resolved.   Requests by civil litigants for records that are sought as part of or for use in any ongoing civil or administrative litigation against an agency shall be made in writing and copied to counsel of record for that agency contemporaneously with their submission to that agency. The agency shall provide, at no cost, duplicate sets of all records produced in response to the request to counsel of record for that agency unless the counsel of record for that agency elects not to receive the records.   As provided in this subsection, an agency's use of electronic record-keeping systems must not erode the public's right of access to records under this article. Agencies shall produce electronic copies of or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. An agency shall not refuse to produce such electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency's computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data. A requester may request that electronic records, data, or data fields be produced in the format in which such data or electronic records are kept by the agency, or in a standard export format such as a flat file electronic American Standard Code for Information Interchange (ASCII) format, if the agency's existing computer programs support such an export format. In such instance, the data or electronic records shall be downloaded in such format onto suitable electronic media by the agency.   Requests to inspect or copy electronic messages, whether in the form of email, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.   In lieu of providing separate printouts or copies of records or data, an agency may provide access to records through a website accessible by the public. However, if an agency receives a request for data fields, an agency shall not refuse to provide the responsive data on the grounds that the data is available in whole or in its constituent parts through a website if the requester seeks the data in the electronic format in which it is kept. Additionally, if an agency contracts with a private vendor to collect or maintain public records, the agency shall ensure that the arrangement does not limit public access to those records and that the vendor does not impede public record access and method of delivery as established by the agency or as otherwise provided for in this Code section.   Any computerized index of county real estate deed records shall be printed for purposes of public inspection no less than every 30 days, and any correction made on such index shall be made a part of the printout and shall reflect the time and date that such index was corrected.   No public officer or agency shall be required to prepare new reports, summaries, or compilations not in existence at the time of the request.   Scanned ballot images created by a voting system authorized by Chapter 2 of Title 21 shall be public records subject to disclosure under this article.    (d.1)Any other provision of this Code section to the contrary notwithstanding, the period within which any production, access, response, or notice is required from an agency with respect to a request for records, other than salary information for nonclerical staff, of intercollegiate sports programs of any unit of the University System of Georgia, including athletic departments and related private athletic associations, shall be 90 business days from the date the agency received the request.   (Ga. L. 1959, p. 88, § 2; Ga. L. 1982, p. 1789, § 1; Ga. L. 1988, p. 243, § 2; Ga. L. 1992, p. 1061, § 6; Ga. L. 1996, p. 313, § 1; Ga. L. 2012, p. 218, § 2/HB 397; Ga. L. 2013, p. 141, § 50/HB 79; Ga. L. 2016, p. 6, § 1/SB 323; Ga. L. 2021, p. 14, § 51/SB 202; Ga. L. 2021, p. 922, § 50/HB 497.)    The 2021 amendments.  The first 2021 amendment, effective March 25, 2021, added subsection (k). The second 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted "email" for "e-mail" twice in the last sentence of paragraph (b)(2), and near the middle of subsection (g).   Editor's notes.   - Ga. L. 2021, p. 14, § 1/SB 202, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Election Integrity Act of 2021."'   Ga. L. 2021, p. 14, § 2/SB 202, not codified by the General Assembly, provides: "The General Assembly finds and declares that:   "(1) Following the 2018 and 2020 elections, there was a significant lack of confidence in Georgia election systems, with many electors concerned about allegations of rampant voter suppression and many electors concerned about allegations of rampant voter fraud;   "(2) Many Georgia election processes were challenged in court, including the subjective signature-matching requirements, by Georgians on all sides of the political spectrum before and after the 2020 general election;   "(3) The stress of the 2020 elections, with a dramatic increase in absentee-by-mail ballots and pandemic restrictions, demonstrated where there were opportunities to update existing processes to reduce the burden on election officials and boost voter confidence;   "(4) The changes made in this legislation in 2021 are designed to address the lack of elector confidence in the election system on all sides of the political spectrum, to reduce the burden on election officials, and to streamline the process of conducting elections in Georgia by promoting uniformity in voting. Several examples will help explain how these goals are achieved;   "(5) The broad discretion allowed to local officials for advance voting dates and hours led to significant variations across the state in total number of hours of advance voting, depending on the county. More than 100 counties have never offered voting on Sunday and many counties offered only a single day of weekend voting. Requiring two Saturday voting days and two optional Sunday voting days will dramatically increase the total voting hours for voters across the State of Georgia, and all electors in Georgia will have access to multiple opportunities to vote in person on the weekend for the first time;   "(6) Some counties in 2020 received significant infusions of grant funding for election operations, while other counties received no such funds. Promoting uniformity in the distribution of funds to election operations will boost voter confidence and ensure that there is no political advantage conferred by preferring certain counties over others in the distribution of funds;   "(7) Elections in Georgia are administered by counties, but that can lead to problems for voters in counties with dysfunctional election systems. Counties with long-term problems of lines, problems with processing of absentee ballots, and other challenges in administration need accountability, but state officials are limited in what they are able to do to address those problems. Ensuring there is a mechanism to address local election problems will promote voter confidence and meet the goal of uniformity;   "(8) Elections are a public process and public participation is encouraged by all involved, but the enthusiasm of some outside groups in sending multiple absentee ballot applications in 2020, often with incorrectly filled-in voter information, led to significant confusion by electors. Clarifying the rules regarding absentee ballot applications will build elector confidence while not sacrificing the opportunities for electors to participate in the process;   "(9) The lengthy absentee ballot process also led to elector confusion, including electors who were told they had already voted when they arrived to vote in person. Creating a definite period of absentee voting will assist electors in understanding the election process while also ensuring that opportunities to vote are not diminished, especially when many absentee ballots issued in the last few days before the election were not successfully voted or were returned late;   "(10) Opportunities for delivering absentee ballots to a drop box were first created by the State Election Board as a pandemic response. The drop boxes created by rule no longer existed in Georgia law when the emergency rules that created them expired. The General Assembly considered a variety of options and constructed a system that allows the use of drop boxes, while also ensuring the security of the system and providing options in emergency situations;   "(11) The lengthy nine-week runoffs in 2020 were exhausting for candidates, donors, and electors. By adding ranked choice voting for military and overseas voters, the run-off period can be shortened to a more manageable period for all involved, easing the burden on election officials and on electors;   "(12) Counting absentee ballots in 2020 took an incredibly long time in some counties. Creating processes for early processing and scanning of absentee ballots will promote elector confidence by ensuring that results are reported quickly;   "(13) The sanctity of the precinct was also brought into sharp focus in 2020, with many groups approaching electors while they waited in line. Protecting electors from improper interference, political pressure, or intimidation while waiting in line to vote is of paramount importance to protecting the election system and ensuring elector confidence;   "(14) Ballot duplication for provisional ballots and other purposes places a heavy burden on election officials. The number of duplicated ballots has continued to rise dramatically from 2016 through 2020. Reducing the number of duplicated ballots will significantly reduce the burden on election officials and creating bipartisan panels to conduct duplication will promote elector confidence;   "(15) Electors voting out of precinct add to the burden on election officials and lines for other electors because of the length of time it takes to process a provisional ballot in a precinct. Electors should be directed to the correct precinct on election day to ensure that they are able to vote in all elections for which they are eligible;   "(16) In considering the changes in 2021, the General Assembly heard hours of testimony from electors, election officials, and attorneys involved in voting. The General Assembly made significant modifications through the legislative process as it weighed the various interests involved, including adding further weekend voting, changing parameters for out-of-precinct voting, and adding transparency for ballot images; and   "(17) While each of the changes in this legislation in 2021 stands alone and is severable under Code Section 1-1-3, the changes in total reflect the General Assembly's considered judgment on the changes required to Georgia's election system to make it 'easy to vote and hard to cheat,' applying the lessons learned from conducting an election in the 2020 pandemic."   Law reviews.   - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 139 (2012). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 31 (2016). For note on 1992 amendment of this Code section, see 9 Ga. St. U. L. Rev. 344 (1992).   JUDICIAL DECISIONS    Intent of General Assembly was to afford to public at large access to public records with the exceptions of certain information which is exempt from disclosure. Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978).   Reasonable access to files.    - Custodian of public records complies with an open records request when the custodian grants reasonable access to the files in custody; the custodian is not required to comb through the files and locate, inspect, and produce the documents sought. Felker v. Lukemire, 267 Ga. 296, 477 S.E.2d 23 (1996).    Trial court erred in entering summary judgment for a county and a county manager in an employee's suit for attorney fees arising out of a Georgia Open Records Act (ORA), O.C.G.A. § 50-18-70 et seq., request as the employee showed that the ORA was violated as the manager did not respond to the request within the required three-day period; the case was remanded for a determination of whether the ORA violation was without substantial justification or whether special circumstances existed that counseled against awarding attorney fees. Wallace v. Greene County, 274 Ga. App. 776, 618 S.E.2d 642 (2005).   Disclosures.    - The phrase "exempted from disclosure" in O.C.G.A. § 50-18-71(a) of the Open Records Act, O.C.G.A. § 50-14-1 et seq., did not mean prohibited from disclosure, and the phrase "disclosure shall not be required" as used in O.C.G.A. § 50-18-72(a) did not mean that disclosure was prohibited. Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 815 S.E.2d 841 (2018).   Open Records Act not applicable.    - Trial court did not err in denying the plaintiff's request for a mandamus nisi because the Open Records Act, O.C.G.A. § 50-14-1 et seq., was not available to enforce compliance with the plaintiff's requests for information from the county board of tax assessors regarding property tax assessments as those requests were made pursuant to another statute and not the Open Records Act. Hansen v. DeKalb County Board of Tax Assessors, 295 Ga. 385, 761 S.E.2d 35 (2014).   Consideration of cost of disclosing information.    - Case was remanded for further determination of the most economical cost for providing information since the record did not establish that the county used the most economical means for providing copies of at least part of the information requested. Trammel v. Martin, 200 Ga. App. 435, 408 S.E.2d 477 (1991).   Fees.    - Imposition of a fee is allowed only when the citizen seeking access requests copies of documents or requests action by the custodian that involves an unusual administrative cost or burden. Thus, a fee may not be imposed under O.C.G.A. § 50-18-71 when a citizen seeks only to inspect records that are routinely subject to public inspection such as deeds, city ordinances, or zoning maps. McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992).    O.C.G.A. § 15-6-96 prevails over O.C.G.A. § 50-18-71 and any other part of the Open Records Act, O.C.G.A. § 50-18-70 et seq., to the extent they conflict with the ability of superior court clerks to contract to market records of their offices for profit. Powell v. VonCanon, 219 Ga. App. 840, 467 S.E.2d 193 (1996).    County tax commissioner, tax assessor, and commissioner could charge no more than the actual cost of a computer disk or tape and an hourly charge for administrative costs of no more than the salary of the lowest paid full-time employee who could perform the request for information on public real estate records. Powell v. VonCanon, 219 Ga. App. 840, 467 S.E.2d 193 (1996).   Cannot strike counterclaim for attorney fees.    - Georgia Supreme Court affirmed the judgment of the Georgia Court of Appeals in Geer v. Phoebe Putney Health System, Inc., 350 Ga. App. 127 (2019) that held that Georgia's anti-SLAPP statute, O.C.G.A. § 9-11-11.1, could not be invoked to strike a counterclaim for attorney fees brought under the Open Records Act, O.C.G.A. § 50-18-73(b), in response to a suit to enforce a request under Georgia's Open Records Act. Geer v. Phoebe Putney Health Sys., 310 Ga. 279, 849 S.E.2d 660 (2020).   Indigents.    - There is no provision in O.C.G.A. § 50-18-71 for the excusal of the payment of fees upon filing a pauper's affidavit. McBride v. Wetherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991).   Strict compliance required.    - District attorney's failure to cite the Code section, subsection, and paragraph, pursuant to which the state was denying the applicant's request, violated O.C.G.A. § 50-18-71(d) for which strict compliance was required. Chua v. Johnson, 336 Ga. App. 298, 784 S.E.2d 449 (2016).   Mandamus not proper remedy.    - Judgment dismissing the plaintiff's mandamus action against a city seeking to compel compliance with the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., was affirmed because the Act's civil penalties provision afforded the plaintiff a remedy as complete and convenient as mandamus by providing its own cause of action for enforcement in O.C.G.A. § 50-18-73(a). Blalock v. Cartwright, 300 Ga. 884, 799 S.E.2d 225 (2017).    Private right of action exists under the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq.; thus, mandamus relief is not only unnecessary but improper and, to the extent that cases like Evans v. Georgia Bureau of Investigation, 297 Ga. 318 (773 S.E.2d 725) (2015), suggest otherwise, those cases are disapproved. Blalock v. Cartwright, 300 Ga. 884, 799 S.E.2d 225 (2017).    Cited in Northside Realty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978); Atchison v. Hospital Auth., 245 Ga. 494, 265 S.E.2d 801 (1980); Deal v. Coleman, 294 Ga. 170, 751 S.E.2d 337 (2013).   OPINIONS OF THE ATTORNEY GENERAL   Requests for computer-generated information.    - Information does not fall outside the scope of the Open Records Act, O.C.G.A. § 50-18-70 et seq., because the information is stored by means of magnetic tape or diskette rather than in more traditional form. When the requested information can be retrieved by a minimal computer search, an agency must comply. The parameters of the Open Records Act, O.C.G.A. § 50-18-70 et seq., cannot be altered by contract and any such provisions are unenforceable. 1989 Op. Att'y Gen. 89-32.   Prison inmate's medical records.   - Department of Offender Rehabilitation (now Department of Corrections) may supply copies of a former inmate's prison medical records to a person other than an inmate who is neither a doctor nor the agent of a hospital. As a condition precedent to delivery of such records, however, the department should demand proof of the requesting party's authority and might also condition delivery upon tender of payment sufficient to cover the department's expenses in copying the material requested. 1973 Op. Att'y Gen. No. 73-77.   No disclosure of information from records by telephone.   - Records may be made available for inspection by members of the public who might come in and make a request, but no such information is to be given by telephone. 1965-66 Op. Att'y Gen. No. 66-88.   RESEARCH REFERENCES   Am. Jur. 2d.   - 66 Am. Jur. 2d, Records and Recording Laws, §§ 19, 20.   C.J.S.   - 76 C.J.S., Records, §§ 43, 46.   ALR.   - Construction and application of public domain doctrine allowing courts to disregard FOIA law enforcement exemption based on prior public release of requested records, 3 A.L.R. Fed. 3d 5.   Construction and application of public domain or official acknowledgment doctrine allowing courts to disregard FOIA exemption, other than law enforcement exemption, based on prior public release of requested records, 17 A.L.R. Fed. 3d 1.