Doe v. Board of Regents of University System of Georgia, A94A1293

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; POPE; ANDREWS; I am authorized to state that Presiding Judge BIRDSONG; BLACKBURN
• Citation: Doe v. Board of Regents of University System of Georgia, 452 S.E.2d 776, 215 Ga.App. 684 (Ga. App. 1994)
• Decision Date: 01 December 1994
• Docket Number: No. A94A1293,A94A1293
• Parties: , 97 Ed. Law Rep. 512 DOE v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.

Page 776

452 S.E.2d 776

215 Ga.App. 684, 97 Ed. Law Rep. 512

DOE v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.

No. A94A1293.

Court of Appeals of Georgia.

Dec. 1, 1994.

Reconsideration Denied Dec. 19, 1994.

McArthur & McArthur, John J. McArthur, Jeffrey A. Rothman, Athens, for appellant.

Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Sr. Asst. Atty. Gen., Rebecca S. Mick, Asst. Atty. Gen., Atlanta, for appellee.

BEASLEY, Presiding Judge.

The plaintiff, using the pseudonym Jane Doe, filed a complaint against the Board of Regents of the University System of Georgia seeking a temporary restraining order and preliminary and permanent injunctive relief against disclosure. A request had been made to the University of Georgia by the campus newspaper, "The Red & Black," under the Open Records Act, OCGA § 50-18-70 et seq. The newspaper sought release of the University police report of an incident related by plaintiff, a university employee, in which she claimed that she had been abducted and raped on the university campus by an unknown assailant. The superior court declined to issue an interlocutory injunction and plaintiff filed a direct appeal, as permitted by OCGA § 5-6-34(a)(4). ¹

According to plaintiff's affidavit, she called a friend from a pay phone on October 4, 1993, and told her that she had been raped. The friend met plaintiff and drove her to the home of two other friends who were police officers with the Athens-Clarke County Police Department. Plaintiff related that she had been abducted by a man whom she did not know and raped in his van in a parking lot behind a particular building on the university campus. One of the officers reported the rape to the university police, who took action.

Plaintiff was examined at the emergency room of a local hospital and gave the same account to an on-duty university police officer. She continued to relate this account for three days to various university police officers investigating the crime. On October 7, she recanted this version of her experience. She explained in her affidavit that she was in fact forced to have sexual intercourse against her will in the apartment of a man whom she knew and with whom she had been involved in a relationship for a short time. She further related that immediately thereafter she left and drove around very upset, distraught, and in a state of emotional turmoil, and that her mental state caused her to fabricate the version she first told the police. According to plaintiff's affidavit, she declined to pursue criminal prosecution of the alleged rapist, and there is no mention in the record of any report to the Athens-Clarke County Police Department by anyone.

On October 13, the editor-in-chief of "The Red & Black" sent a letter to the chief of the University police requesting "the incident report filed by the University employee, with the name included, who falsely claimed she was raped on October 4 at the parking lot behind the Hoke Smith building." He stated that the case was "of special interest to the university community, since it perpetuated the specter of rape on our campus."

The University's Office of Legal Affairs contacted plaintiff, indicating that it intended to release the requested information. Plaintiff brought suit to prevent this action.

In the suit she contends that the disclosure of the information would cause her physical safety to be seriously threatened and endangered and her reputation to be harmed, and that she would be subjected to unnecessary embarrassment, harassment, and humiliation. She asserted a right of privacy under OCGA § 50-18-72(a)(2) and protection from disclosure under OCGA § 16-6-23.

The superior court issued a temporary restraining order, pending the hearing on plaintiff's request for an interlocutory injunction. It enjoined the university from disclosing to "The Red & Black" or to others plaintiff's name or any details of the incident which might tend to identify her. Following a hearing, the court declined to issue the interlocutory injunction. It concluded that OCGA § 16-6-23 did not protect an undisputed false claim of rape as made by the plaintiff; that even if it did, disclosure outweighed nondisclosure; that the statute more appropriately related to the news media than to the defendant; that the report sought was a public record under OCGA § 50-18-70; that as a wrongdoer plaintiff had no legitimate expectation of privacy in the report, so that the report was not exempted from disclosure by OCGA § 50-18-72(a)(2); and that the evidence was insufficient "to show any real danger to plaintiff's life or safety or untoward harm."

In order to maintain the status of the matter for appellate review, the court issued an injunction applicable during the pendency of the appeal pursuant to OCGA § 9-11-62(c), enjoining disclosure by the defendant of the University police department's investigative file. On its own motion, the court also directed that any list or information of possible suspects in the investigative files maintained by the University police department relating to the incident not be disclosed, so as to protect the personal privacy of any such individuals from unwarranted public attention and exposure.

Plaintiff enumerates as error most of the court's conclusions and the finding that the report involved a false claim of rape.

1. We begin with the Open Records Act, which is the authority underlying the student newspaper's request. OCGA § 50-18-70(b) states:

"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."

In Napper v. Ga. Pub. Television Co., 257 Ga. 156, 160, 356 S.E.2d 640 (1987), the Supreme Court pointed the way to proper analysis: "Where there is a request for disclosure of documents under the [Open] Records Act, the first inquiry is whether the records are 'public records.' " "Public Records" are defined as "documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, 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).

"If they are public records, the second inquiry is whether they are protected from public disclosure pursuant to §§ 50-18-70 or 50-18-72. [Cit.] If they are not exempt under the list of exemptions found in § 50-18-72 or under any other statute, then the question is whether they should be protected by court order under § 50-18-70, [Cit.], but only if there is a claim that disclosure of the public records would invade individual privacy[.] Bd. of Regents v. Atlanta Journal & Const., 259 Ga. 214, 216-218(4), 378 S.E.2d 305 (1989); Ga. Hosp. Assn. v. Ledbetter, 260 Ga. 477, 479(5), 396 S.E.2d 488 (1990)." Hardaway Co. v. Rives, 262 Ga. 631, 632(1), 422 S.E.2d 854 (1992).

The Board of Regents is subject to the Act and there is no dispute that the incident reports in question are public records. See Bd. of Regents, supra, 259 Ga. at 214(1), 378 S.E.2d 305. What particularly sweeps the reports sought here into the statute is OCGA § 50-18-72(a)(4), which provides an exemption for records of law enforcement agencies in any pending investigation "other than initial police arrest reports, accident reports, and incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated." Even if the requested information were not an "incident report" excepted from the exemption, it clearly involves a matter which has been terminated. In either event, it would be obtainable under this section, unless a bar exists elsewhere.

2. There is no other exemption listed in OCGA § 50-18-72 which would block the information from disclosure. Plaintiff relies on subsection (a)(2), which protects "[m]edical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy." She argues that this is a "similar file" as contemplated in that subsection, but that general category clearly does not cover the report here because such documents are expressly governed by subsection (a)(4).

There is another reason that subsection (a)(2) does not aid plaintiff. It is true that it, "[p]roperly construed ... forbids disclosure to the general public from [public] records or files of any information which would invade the constitutional, statutory or common law rights ... to privacy. [Cit.]" Doe v. Sears, 245 Ga. 83, 86, 263 S.E.2d 119 (1980). But "[t]he right of privacy, protectable in tort, ... extends only to unnecessary public scrutiny." Athens Observer v. Anderson, 245 Ga. 63, 65, 263 S.E.2d 128 (1980). Quoting from earlier cases, the Supreme Court described this as matters " 'with which the public has no legitimate concern.' " (emphasis omitted). Id. at 65, n. 3, 263 S.E.2d 128. It also referred to the principle articulated in Waters v. Fleetwood, 212 Ga. 161, 167, 91 S.E.2d 344 (1956): " '[W]here an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy.' " Id. 245 Ga. at 66, n. 4, 263 S.E.2d 128. A report of a crime, whether the report is true or false, is such a public matter. In the words quoted in Harris v. Cox Enterprises, 256 Ga. 299, 302, 348 S.E.2d 448 (1986), the incident report concerning the plaintiff's report is a subject of " 'legitimate public inquiry.' "

Thus, plaintiff is not helped by OCGA § 50-18-72(a)(2)'s "similar files" exemption.

3. Plaintiff contends that if the whole...