Campaign for Accountability v. Consumer Credit Research Found.

Decision Date18 June 2018
Docket NumberS17G1677,S17G1676
Citation815 S.E.2d 841
Parties CAMPAIGN FOR ACCOUNTABILITY v. CONSUMER CREDIT RESEARCH FOUNDATION. Board of Regents of the University System of Georgia v. Consumer Credit Research Foundation.
CourtGeorgia Supreme Court

Henry R. Chalmers, Megan Poitevint Mitchell, Arnall Golden Gregory, LLP, 171 17th Street, N.W., Suite 2100, Atlanta, Georgia 30363-1031, Atlanta, for Appellant in S17G1676.

Thurbert E. Baker, Nathan L. Garroway, Mark Adam Silver, Dentons US LLP, 303 Peachtree Street, NE, Suite 5300, Atlanta, Georgia 30308, for Appellee in S17G1676 and S17G1677.

Jennifer Colangelo, Christopher M. Carr, Attorney General, Russell David Willard, Senior Assistant Attorney General, Annette M. Cowart, Senior Assistant Attorney General, Department of Law 40 Capitol Square, SW Atlanta, Georgia 30334, for Other Party in S17G1676.

Annette M. Cowart, Senior Assistant Attorney General, Jennifer Colangelo, Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellant in S17G1677.

Peter Crane Canfield, Jason Todd Burnette, Meredith Charlotte Kincaid, JONES DAY 1420 Peachtree Street, N.E. Suite 800 Atlanta, Georgia 30309-3053, Alex PotapovJONES DAY 51 Louisiana Avenue, N.W. Washington, Washington, DC 20001-2113, for Amicus Appellant in S17G1677.

Henry R. Chalmers, Megan Poitevint Mitchell, Arnall Golden Gregory, LLP 171 17th Street, N.W. Suite 2100 Atlanta, Georgia 30363-1031, for Other Party in S17G1677.

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, 800 S.E.2d 24. 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 OCGA § 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 OCGA § 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 OCGA § 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 OCGA § 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 OCGA § 50-18-72 (a) exemption cannot be disclosed. CCRF points to subsection (a) (1)—the very first exemption listed in OCGA § 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 OCGA § 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...

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    ...Though we seek to "avoid a construction that makes some language mere surplusage," Campaign for Accountability v. Consumer Credit Research Foundation , 303 Ga. 828, 832 (2), 815 S.E.2d 841 (2018), the surplusage canon can be overcome by context, such as here, where context tells us that "po......
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    ...to be taken as having an effect"). The surplusage canon has been adopted in Georgia. See Campaign for Accountability v. Consumer Credit Research Found. , 303 Ga. 828, 834, 815 S.E.2d 841, 846 (2018)."In the absence of words of limitation, words in a statute should be given their ordinary an......
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1 books & journal articles
  • Local Government Law
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 71-1, January 2020
    • Invalid date
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