Doe v. Sears

• Decision Date: 23 January 1980
• Docket Number: 35647,Nos. 35604,s. 35604
• Citation: 263 S.E.2d 119,245 Ga. 83
• Court: Georgia Supreme Court
• Parties: DOE et al. v. SEARS et al. SEARS v. DOE et al.

Page 119

263 S.E.2d 119

245 Ga. 83

DOE et al. v. SEARS et al.

SEARS v. DOE et al.

Nos. 35604, 35647.

Supreme Court of Georgia.

Argued Nov. 20, 1979.

Decided Jan. 3, 1980.

Rehearings Denied Jan. 23, 1980.

Phillip A. Bradley, Dennis Goldstein, Kenneth G. Levin, Atlanta, for appellants (Case No. 35604).

Hansell, Post, Brandon & Dorsey, David J. Bailey, Albert G. Norman, Jr., Parks, Jackson & Howell, Lenwood Jackson, Atlanta, for appellees (Case No. 35604).

David J. Bailey, Albert G. Norman, Jr., Atlanta, for appellant (Case No. 35647).

Phillip A. Bradley, Dennis Goldstein, Lenwood Jackson, Kenneth G. Levin, Atlanta, for appellees (Case No. 35647).

NICHOLS, Chief Justice.

The issues in this appeal and cross appeal are whether the Open Records Laws, Code Ann. § 40-2701 et seq., apply to the Atlanta Housing Authority and, if so, whether certain tenants of the authority have an unwaived constitutional, statutory, or common law right of privacy that would be infringed upon by disclosure of records which identify those tenants and state the amounts they owe as unpaid rents.

The issues arise as a result of investigative reporting by The Atlanta Constitution, a daily newspaper. Edward M. Sears, Jr., as a citizen and as managing editor of the newspaper asked permission under the Open Records Laws to inspect certain computer print-outs kept by the AHA as part of its business records. The print-outs contain the names, addresses, sources of income and rents owed by tenants.

Sears' stated purpose for inspecting the print-outs was to determine if certain public housing tenants had received special favors or treatment in regard to rent delinquency, if those tenants had personal or political ties and connections with public officials or AHA staff or directors, and if there was a pattern of favoritism between certain housing project management personnel and certain tenants.

AHA agreed to make the records available for inspection but only after they had been edited to delete all tenants' names and addresses.

Sears then filed his petition for the writ of mandamus. AHA answered, contending that such records were not subject to inspection pursuant to the Open Records Laws and that to permit such inspection would violate the privacy of AHA tenants and subject AHA to liability to its tenants for such disclosure.

Jane Doe, Mary Roe and Ann Poe, fictional names of three tenants of AHA, individually and on behalf of a class of other tenants who were or who had been delinquent in rent payments, were allowed to intervene.

After submission of briefs and stipulations of facts, the trial court held that the records were public records subject to the Open Records Laws. The court also held, applying a balancing test, that tenants whose rents were unpaid for six months or more and who had not paid all or substantially all of those delinquent rents prior to the filing of Sears' petition had waived their rights of privacy. The AHA was ordered to reveal to Sears their names, addresses and the periods and amounts of their delinquencies. The AHA was ordered to reveal to Sears the delinquent rents, periods of delinquency and housing project locations of all other delinquent tenants but not their names and addresses. The cut-off period of six months apparently was predicated upon a finding of fact that "the normal AHA practice was to commence eviction proceedings against a tenant if no payment of delinquent rent was made by a tenant after five months."

In case number 35604, defendant-intervenors appeal. In case number 35647, Sears cross appeals. This court affirms in part and reverses in part in the appeal and the cross-appeal.

1. There can be no doubt but that the Atlanta Housing Authority falls within the ambit of the Open Records Laws. Code Ann. § 40-2701 et seq. The AHA is a public body corporate and politic created as a result of statute. Code Ann. §§ 99-1102, 99-1103, 99-1116. It is governed by a board of commissioners appointed by the mayor. Code Ann. § 99-1110. The authority exercises public and essential governmental functions, and its property is, by law, public property. The low-cost housing which the AHA provides constitutes a public use and purpose for which public monies are spent. The entire character of the AHA is public.

Doe, et al. argue that amendments to Code Ann. § 40-2703 show legislative intent that the Open Records Laws shall not apply to any authority other than a hospital authority. To the contrary, these amendments quite obviously were enacted at least in part to remove all doubt that could exist as to whether all records of hospital authorities are included within the classes of records which are not open to public inspection. The underlying implication of Code Ann. § 40-2703 as amended is that all records of all state, county and municipal authorities are open to public inspection unless closed by a specific exception, and that the records of hospital authorities are not in any respect different from those of other authorities when the issue is one of whether the particular record is open to public inspection under the general provisions of the Open Records Laws or is closed to public inspection under a specific statutory exception. See Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978).

The trial court correctly held that the records of the AHA fall within the Open Records Laws.

2. Having determined that AHA records are open records, this court next faces issues as to whether the defendant-intervenors have federally or state-created or protected rights of privacy which would be infringed upon were Sears to be furnished their names, addresses, and the amounts of their rent arrearages.

In Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, supra, this court held that a hospital authority properly could delete confidential information from records that otherwise were public before making such records available for a citizen's inspection. To the same effect: Brown v. Minter, 243 Ga. 397, 254 S.E.2d 326 (1979).

The parties have filed extensive briefs calling upon this court to delimit with precision the full extent of the federal and state constitutional rights of privacy, if any, and state statutory and common law rights of privacy, if any, as to the tenants' rent accounts with AHA. The Open Records Laws exempt from disclosure among other records, "medical records and similar files, the...