Board of Regents of the University System of Georgia v. The Atlanta Journal, 46821
| Citation | 259 Ga. 214,378 S.E.2d 305 |
| Decision Date | 25 April 1989 |
| Docket Number | No. 46821,46821 |
| Parties | , 52 Ed. Law Rep. 1287, 17 Media L. Rep. 1670 BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al. v. THE ATLANTA JOURNAL and the Atlanta Constitution et al. |
| Court | Georgia Supreme Court |
G. Conley Ingram, Robert D. McCallum, Jr., Alston & Bird, Walter G. Elliott II, Richard T. Fulton, Atlanta, for Board of Regents of the University System of Georgia et al.
James A. Demetry, Terrence B. Adamson, Peter C. Canfield, Dow, Lohnes & Albertson, Atlanta, for The Atlanta Journal and the Atlanta Constitution et al.
Michael J. Bowers, Atty. Gen., Stephanie B. Manis, Deputy Asst. Atty. Gen., Paul R. Vancil, amici curiae.
Pursuant to the Open Records Act, OCGA § 50-18-70 et seq., two newspapers made the following request of the Board of Regents and its chancellor:
We request records on all candidates considered or currently in contention for the presidency of Georgia State University. We request complete records, including resumes, letters of recommendation, vitae, and all other information the presidential search committee has compiled on each of the candidates.
When the Board of Regents denied the request, the newspapers brought an action against them to require production of the documents. The trial court ordered that the Board of Regents produce the following documents:
[R]ecords pertaining to the candidates of the Georgia State University presidential search which have been requested by the [newspapers] except the following:
1. Evaluations of the candidates which have been prepared by the Board members or their staff; and,
2. Confidential evaluations of the candidates by third-parties, such as letters of recommendations.
The Board of Regents appealed.
1. (a) The Open Records Act encompasses: "All state, county, and municipal records...." (See Div. 2(a), below.) The Board of Regents now exists by virtue of the Constitution of Georgia and acts of the General Assembly. It is an agency of the state. 1
The Board of Regents is subject to the Act.
(b) The Act further provides:
As used in this article, the term "public record" shall mean all documents, papers, letters, maps, books, tapes, photographs, or similar material prepared and maintained or received in the course of the operation of a public office or agency. [OCGA § 50-18-70(a).]
The records sought are public records.
2. (a) The Act requires:
All state, county, and municipal records, except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen. [OCGA § 50-18-70(b) .]
(b) Among records exempt from these requirements are:
Records that consist of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee. [OCGA § 50-18-72(a)(5) .]
(c) Appended to the section creating exemptions is this provision:
This Code section shall be interpreted narrowly so as to exclude from disclosure only that portion of a public record to which an exclusion is directly applicable. It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying. [OCGA § 50-18-72(f) .]
3. (a) The question remains as to whether the records requested by the newspapers are:
... confidential evaluations submitted to ... a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee. [Div. 2(b), above.] (b) The Act directs a narrow construction of its exclusions, exempting "only that portion of a public record to which an exclusion is directly applicable." As example, the applications submitted by candidates for the position of president, and the resumes and vitae requested by the newspapers, are products of the applicants themselves. They are materials upon which, in part, "confidential evaluations" are based.
They are not evaluations, 2 hence they are not exempt.
4. The Board of Regents maintains that the public interest requires that all records of its search committee, including those not exempt, be withheld from public scrutiny. It insists that its ability to attract qualified applicants will be diminished by the disclosure of their identities, in disservice of the cause of higher education. We acknowledge that this preference may be justifiable as a matter of good practice. 3 Our inquiry, however, must be whether, as a matter of law, the nondisclosure of such records may be permitted.
(a) The first discussion by this court of the "public interest" (as distinct from statutory application) relative to Open Records laws is found in Houston v. Rutledge, 237 Ga. 764, 765, 766, 229 S.E.2d 624 (1976), in a case concerning records of criminal investigations that had been concluded. There we stated:
When a controversy of this nature arises between a citizen and a public official, the judiciary has the rather important duty of determining whether inspection or non-inspection of the public records is in the public interest. In short, the judiciary must balance the interest of the public in favor of inspection against the interest of the public in favor of non-inspection in deciding this issue....
[In] our construction of this statute we have attempted to apply First Amendment principles which favor open, unfettered communication and disclosure except where some limitation thereon is required in the public interest. 4
(b) In cases coming after Houston v. Rutledge, we have interpreted this "limitation ... required in the public interest" as the necessity to protect against an unwarranted intrusion into an individual's private life, where there is no legitimate right of the public to inquire into private matters that are unrelated to the public business.
The invasion of personal privacy encompassed as an exception to the right of the public to access is to be determined by an examination of the tort of invasion of privacy.
Harris v. Cox Enterprises, 256 Ga. 299, 301, 348 S.E.2d 448 (1986). See also Athens Observer v. Anderson, 245 Ga. 63, 65, 66, 263 S.E.2d 128 (1980):
The right of privacy, protectable in tort, however, extends only to unnecessary public scrutiny.... We find nothing in the report which would give rise to an action for invasion of privacy. 5
(c) In this appeal, there is no claim on behalf of any individual of an invasion of personal privacy. 6 It is not a personal right to privacy that is urged upon us, but rather a corporate preference for privacy, which is considered to be desirable for the efficacious administration of a public function.
(d) In his concurring opinion, Presiding Justice Clarke aptly observes:
The public policy issue of what information or actions involved in a search for an official may be withheld from disclosure rests with the legislative branch.
The General Assembly has defined, directly and specifically, the extent of permissible secrecy as to the appointment of public officers or employees (Div. 2(b), above). That is clearly within its prerogative.
(e) The "limitation ... required in the public interest" of Houston v. Rutledge never has been interpreted to authorize courts to impose their own preferences upon the operation of the executive branch. There being here no competing interest to measure against the demand of the Act, we have nothing to balance.
5. The trial court correctly designated those records that are exempt by the Act, and correctly required production of the remaining documents.
Judgment affirmed.
All the Justices concur, except MARSHALL, C.J., and SMITH and BELL, JJ., who dissent.
I concur in the majority opinion because of the statutory provision mandating a narrow interpretation of the section allowing exclusion from the disclosure provision. OCGA § 50-18-72(f).
I take this position in spite of my concern that the disclosure of search committee activities, including the names of applicants, may result in diminishing the quality of the applicant pool. I point out, however, that this case involves no constitutional issues but only an interpretation of statutory enactments of the legislature. The public policy issue of what information or actions involved in a search for an official may be withheld from disclosure rests with the legislative branch. I believe the legislative branch has the power to exclude from disclosure names of persons considered. But in view of the requirement of narrow interpretation, I do not believe it has done so as yet.
I concur in the majority opinion and its construction of OCGA § 50-18-72(a)(5), and write to address matters presented in the dissenting opinion of Chief Justice Marshall.
1. The dissenting opinion would have us hold that the entire search process is an evaluation or examination of the candidates. I reach a different conclusion because I read subsection (5) to distinguish "confidential evaluations" and "examinations" from other material gathered during the search process. Consider that the second part of subsection (5) deals with investigations of complaints against public officials or employees and it exempts from public disclosure all "material" obtained in an investigation. This suggests to me that a great deal of material may be collected in a search process but only "confidential evaluations" and "examinations" are exempted.
2. Another issue suggested in the dissenting opinion presents a closer question in my view. That is the matter of...
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