Chua v. Johnson

• Citation: 336 Ga.App. 298,784 S.E.2d 449
• Decision Date: 21 March 2016
• Docket Number: No. A15A1728.,A15A1728.
• Parties: CHUA v. JOHNSON.
• Court: United States Court of Appeals (Georgia)

336 Ga.App. 298

784 S.E.2d 449

CHUA

v.JOHNSON.

No. A15A1728.

Court of Appeals of Georgia.

March 21, 2016.

Mary H. Moses, Saint Simons Island, Stephen Michael Reba, Tucker, for Appellant.

Andrew J. Ekonomou, Atlanta, for Appellee.

BRANCH

, Judge.

Noel Chua appeals from an order of the Camden County Superior Court dismissing with prejudice Chua's complaint against Jackie Johnson, in her capacity as the District Attorney for the Brunswick Judicial Circuit (the "District Attorney" or the "District Attorney's office"). That complaint, which alleged a violation of Georgia's Open Records Act, OCGA § 50–18–70, et seq.

("ORA"), sought to require the District Attorney's office to provide Chua with a copy of a specific document contained in the District Attorney's files related to that office's criminal prosecution of Chua. On appeal, Chua contends that the trial court erred in refusing to order the District Attorney to provide him with the document at issue. Specifically, Chua asserts that the District Attorney's office failed to provide him with the timely and detailed written notice required by ORA, setting forth the reasons for the office's refusal to produce the document at issue, and that this failure, without more, entitles him to that document. Chua also claims that the trial court erred by failing to hold an evidentiary hearing to determine whether the document in question falls within the attorney work-product exception to ORA. We agree with Chua that the District Attorney's response to Chua's document request failed to meet all of the requirements set forth in OCGA § 50–18–71(d). We find, however, that such a failure does not automatically entitle Chua to the relief he seeks—i.e., the production of the document. We further find that we cannot determine from the current record whether the document in question falls within an exception to ORA. The trial court, therefore, erred when it refused to hold an evidentiary hearing on this issue.¹ Accordingly, we vacate the order of the trial court and remand the case for further proceedings consistent with this opinion.

"A trial court is vested with discretion in determining whether to allow or prohibit inspection of documents under the Open Records Act" (Fulton DeKalb Hosp. Auth. v. Miller & Billips,

293 Ga.App. 601, 602(1), 667 S.E.2d 455 (2008) ), and we therefore review a trial court's ruling on that issue for an abuse of discretion, which "occurs where the trial court's ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law." Mathis v. BellSouth Telecommunications, 301 Ga.App. 881, 881, 690 S.E.2d 210 (2010) (citation and footnote omitted).

The relevant facts are undisputed. In 2006, Chua was indicted in Camden County Superior Court on a number of criminal charges, including felony murder. See Chua v. State,

289 Ga. 220, n. 1, 710 S.E.2d 540 (2011). That same year, the District Attorney also filed a civil RICO action against Chua in Camden County Superior Court, and that action remains pending.² Following a jury trial in 2007, Chua was convicted of multiple counts, and the Georgia Supreme Court subsequently affirmed his conviction for, among other things, felony murder. Chua, 289 Ga. at 220, n. 1, 710 S.E.2d 540. Chua thereafter filed a habeas corpus petition, which is currently pending in Bibb County Superior Court. Apparently in preparation for pursuing the habeas action, Chua's attorney filed an ORA request with the District Attorney's office seeking to review its case files in both the criminal and civil actions brought against Chua. Pursuant to this request, the District Attorney agreed to make the files available for personal inspection by Chua's attorney on July 24, 2013.³ On December 23, 2013, following his July inspection of the files, Chua's lawyer sent a letter to the "Records Custodian" at the District Attorney's office requesting a copy of the document at issue in this case. That letter notes that counsel had conducted an "open records review" of the files from the civil and criminal cases against Chua in July of 2013 and then stated:

As part of that review, one of the many documents provided for me was a six-page [sic] memorandum, without a named author, relating primarily to prospective jurors' ^{[4 ]} relationships to [the] then [Camden County] Sheriff.... With this letter, I am formally requesting a copy of the aforementioned document, pursuant to OCGA § 50–18–70, et seq.

I will be traveling in the Camden County area on Friday, December 27, 2013, and will [ ] therefore be able to come to your office to pick up the document in person, if convenient. Alternatively, if the document [can be located using] the above descriptive information, [transmission by] fax or U.S. mail is perfectly fine.

The Open Records Officer at the District Attorney's Office sent a written response to Chua's attorney on December 26, 2013, explaining that because of the staff shortage during the holiday season, the records could not be retrieved by December 27. The Officer also informed counsel that the estimated cost of retrieving the specific document requested was $56.64, and asked the lawyer "to let me know if this charge is acceptable and if you would like me to begin searching for said document." Defense counsel faxed a written response to the District Attorney's office on December 30, 2013, in which he agreed to pay the estimated charge for the document.

On January 3, 2014, an Assistant District Attorney ("ADA") telephoned defense counsel and left a voice mail message explaining that the ADA had reviewed the document at issue and determined that it was "a document prepared by an attorney in preparation for trial. So it is work product." The ADA therefore indicated that the District Attorney's office would not be producing the document. The ADA followed up this message with a letter, dated January 10, 2014 and faxed to defense counsel on January 13, in which he stated that "the document containing juror notes is not subject to the Open Records Act and will not be forwarded to you."

After the District Attorney's office refused to provide him with the requested document, Chua filed the current action on May 9, 2014. On January 13, 2015, he filed a motion for summary judgment seeking an order requiring the District Attorney's office to provide him with the document at issue. Alternatively, Chua sought an evidentiary hearing to determine whether the requested document was subject to an ORA exception. The District Attorney opposed an evidentiary hearing, arguing that the privileged nature of the document was obvious from the contents of the memo itself. The trial court did not schedule a hearing and entered its order, dated February 9, 2015, on March 11. In that order, the trial court found that an evidentiary hearing was unnecessary and that "the Court is authorized to make a determination" as to whether the document was subject to the ORA by conducting "an in camera inspection" of the same. The Court further found that the District Attorney's voice mail message, left for defense counsel on January 3, 2014, was timely and complied with the requirements of ORA. Finally, the trial court held that the memo " deals with the [District Attorney]'s securing of information on jurors in anticipation of a jury trial and is covered by the confidential attorney work product exception" set forth in OCGA § 50–18–72(a)(42)

. Chua now appeals from the trial court's order.

1. We first address Chua's claim that the trial court erred in finding that the January 3 response from the District Attorney's office to his ORA request satisfied the requirements of OCGA § 50–18–71

. That code section provides, in relevant part:

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.

OCGA § 50–18–71(d)

(emphasis supplied). Chua contends that the January 3 voice mail left by the ADA and the ADA's January 10 letter confirming that message failed to comply with this provision because they were untimely and failed to inform him "of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph." Chua further contends that this violation of ORA means that the District Attorney must provide him with the requested document.

(a) With respect to the question of whether the District Attorney provided an adequate response to Chua's ORA request, we agree with the trial court that the January 3 voice mail was timely.⁵ It is undisputed that the office's initial response to Chua, in which it informed him that the records were offsite and told him the estimated cost of retrieving the document, was made within 3 days after Chua's request.⁶ It is also undisputed that Chua's attorney did not respond to the District Attorney's office and agree to pay the estimated fee until December 30, 2013. Presumably, therefore, the records were not retrieved before that date. Even assuming that the records were retrieved on December 30 then, as the trial court correctly noted, January 3, 2014, was within three business days of December 30.⁷

Moreover, we note that the voice mail left by the ADA did set forth the legal basis for the District Attorney's decision to withhold the document, as the message informed Chua's attorney that the document constituted attorney work product. Despite this fact, however, and despite the timeliness of its response, the District Attorney's office did not comply with the letter of OCGA §...