GA Code § 50-18-73 (2021)
2021 Georgia Code|Title 50 - State Government|Chapter 18 - State Printing and Documents|Article 4 - Inspection of Public Records|§ 50-18-73. Jurisdiction to Enforce Article; Attorney's Fees and Litigation Expenses; Good Faith Reliance as Defense to Action

  The superior courts of this state shall have jurisdiction in law and in equity to entertain actions against persons or agencies having custody of records open to the public under this article to enforce compliance with the provisions of this article. Such actions may be brought by any person, firm, corporation, or other entity. In addition, the Attorney General shall have authority to bring such actions in his or her discretion as may be appropriate to enforce compliance with this article and to seek either civil or criminal penalties or both.   In any action brought to enforce the provisions of this chapter in which the court determines that either party acted without substantial justification either in not complying with this chapter or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.   Any agency or person who provides access to information in good faith reliance on the requirements of this chapter shall not be liable in any action on account of such decision.     (Code 1981, §50-18-73, enacted by Ga. L. 1982, p. 1789, § 1; Ga. L. 1988, p. 243, § 4; Ga. L. 1992, p. 1061, § 9; Ga. L. 1998, p. 595, § 2; Ga. L. 2012, p. 218, § 2/HB 397.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1992, "it" was substituted for "if" in subsection (b).   Law reviews.   - For review of 1998 legislation relating to state government, see 15 Ga. St. U.L. Rev. 242 (1998). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 139 (2012). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992).   JUDICIAL DECISIONS   Actions to enjoin disclosure of information authorized.    - Open Records Act, O.C.G.A. § 50-18-70 et seq., provides the jurisdictional basis for a cause of action by individuals to enjoin the disclosure of legally protected information. Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995).    Trial court incorrectly held that counterclaim alleging violations of the Open Records Act, O.C.G.A. § 50-18-70 et seq., was based on the prayer for relief contained in the original complaint filed by a housing authority, and since the housing authority failed to show that the factual issues regarding the counterclaim must have been decided in the authority's favor, the trial court erred in granting summary judgment in favor of the housing authority on this claim. Strange v. Hous. Auth. of Summerville, 268 Ga. App. 403, 602 S.E.2d 185 (2004).   Anit-SLAPP statute did not apply to counterclaim for attorney's fees.    - In an Open Records Act, O.C.G.A. § 50-14-1 et seq., claim against a hospital, the requestor's motion to strike the hospital's counterclaim for attorney's fees pursuant to the anti-SLAPP statute, O.C.G.A. § 9-11-11.1(b)(1), was properly denied; O.C.G.A. § 50-18-73(b) required consideration of the fee claim at the end of the litigation, using "the record as a whole," not at the outset of the litigation. Geer v. Phoebe Putney Health Sys., 310 Ga. 279, 849 S.E.2d 660 (2020).    Award of attorney's fees is discretionary under O.C.G.A. § 50-18-73 and the decision of the superior court will be interfered with only if this discretion has been abused. Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984); GMS Air Conditioning, Inc. v. Department of Human Resources, 201 Ga. App. 136, 410 S.E.2d 341 (1991).    Trial court erred in entering summary judgment for a county and a county manager in an employee's claim 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).   Attorney's fees and costs award was proper.    - Insofar as the court found a violation of the Open Records Act, O.C.G.A. § 50-18-70 et seq., and the Open Meetings Act, O.C.G.A. § 50-14-1 et seq., and awarded attorney's fees and costs pursuant to O.C.G.A. § 50-18-73(b), the trial court ruled correctly. Decatur County v. Bainbridge Post Searchlight, Inc., 280 Ga. 706, 632 S.E.2d 113 (2006).   Abuse of discretion not found.    - Trial court did not abuse the court's discretion in denying an individual's petition for mandamus, attorney's fees, and expenses under the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., as the individual sued without following-up with the city on the records request; the individual failed to show that the city acted without substantial justification in not complying with the Act as required by O.C.G.A. § 50-18-73(b). Everett v. Rast, 272 Ga. App. 636, 612 S.E.2d 925 (2005).   Compensatory and punitive damages unauthorized.    - O.C.G.A. § 50-18-73 authorizes an award of attorney's fees and expenses of litigation in actions brought to enforce the statute only if the court determines that the action constituting a violation of the statute was completely without merit as to law or fact. Compensatory and/or punitive damages are not authorized. McBride v. Wetherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991).   E-mails sought not existing public record.    - Trial court did not err in granting the Georgia Department of Agriculture summary judgment in a corporation's action seeking to compel the Department to comply with the corporation's request for records under the Georgia Open Records Act (GORA), O.C.G.A. § 50-18-70 et seq., because the Department provided the corporation with reasonable access to the information the corporation sought; because the information the corporation sought, e-mail correspondence, was not an existing public record, non-disclosure thereof did not violate GORA, and the Department did not maintain the e-mails on the Department's system and would have to extract the e-mails from backup tapes using a laborious compilation process. Griffin Indus. v. Ga. Dep't of Agric., 313 Ga. App. 69, 720 S.E.2d 212 (2011).   Mandamus.    - Because O.C.G.A. § 50-18-73(a) of the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., provided a remedy that was as complete and convenient as mandamus, the trial court did not err in dismissing the individuals' O.C.G.A. § 9-6-27(b) petition for mandamus. Tobin v. Cobb County Bd. of Educ., 278 Ga. 663, 604 S.E.2d 161 (2004).    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 (2015), suggest otherwise, those cases are disapproved. Blalock v. Cartwright, 300 Ga. 884, 799 S.E.2d 225 (2017).   Summary judgment properly denied.    - County's summary judgment motion was properly denied as: (1) the county violated the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., by failing to respond to a bidder's request within three business days; (2) the county did not produce any documents for over a month and did not provide all requested documents until after a civil suit for attorney's fees was filed; and (3) the county further failed to explain the county's dilatory conduct in any evidence submitted with the county's summary judgment motion. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).    Cited in Pensyl v. Peach County, 252 Ga. 450, 314 S.E.2d 434 (1984); Deal v. Coleman, 294 Ga. 170, 751 S.E.2d 337 (2013); Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432 (2017); Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 815 S.E.2d 841 (2018).   RESEARCH REFERENCES   ALR.   - Exhaustion of administrative remedies as prerequisite to judicial action to compel disclosure under state freedom of information acts, 114 A.L.R.5th 283.   Construction and application of state freedom of information act provisions concerning award of attorney's fees and other litigation costs, 118 A.L.R.5th 1.   Allowance of punitive damages in state freedom of information actions, 13 A.L.R.6th 721.