Geer v. Phoebe Putney Health Sys., Inc.

• Decision Date: 06 October 2020
• Docket Number: S19G1265
• Citation: 849 S.E.2d 660,310 Ga. 279
• Court: Georgia Supreme Court
• Parties: GEER v. PHOEBE PUTNEY HEALTH SYSTEM, INC.

310 Ga. 279

849 S.E.2d 660

GEER

v.PHOEBE PUTNEY HEALTH SYSTEM, INC.

S19G1265

Supreme Court of Georgia.

Decided: October 6, 2020

Kermit S. Dorough, Kermit S. Dorough, Jr., LLC, P. O. Box 383, Albany, Georgia 31702-0064, for Appellant.

Louis Edward Hatcher, Maggie Lynn McMichael, Frank Faison Middleton, Charles Knox Wainright, Watson Spence LLP, 320 Residence Avenue P. O. Box 2008, Albany, Georgia 31702-2008, for Appellee.

Bethel, Justice.

In Geer v. Phoebe Putney Health System, Inc. , 350 Ga. App. 127, 128, 828 S.E.2d 108 (2019), the Court of Appeals held that Georgia's anti-SLAPP statute, OCGA § 9-11-11.1, could not be invoked to strike a counterclaim for attorney fees brought under OCGA § 50-18-73 (b) in response to a suit to enforce a request under Georgia's Open Records Act. We granted certiorari to consider whether the Court of Appeals erred in that determination. For the reasons set forth below, we affirm the judgment of the Court of Appeals.

1. Factual background and procedural history.

The facts underlying this case are largely undisputed. In December 2017, Claude Wilson Geer IV filed a request with Phoebe Putney Health System, Inc.¹ under the Open Records Act seeking the release of minutes of its board meetings held between January 2008 and December 2017. The following day, Phoebe Putney denied the request, asserting that it is not subject to the Open Records Act and that its minutes and other documents and records are not "public records" within the meaning of the Act.

Following the denial of his request, Geer filed suit against Phoebe Putney in superior court seeking an injunction compelling the release of the records he had requested and other relief. Phoebe Putney answered the complaint and asserted multiple defenses to Geer's claims, including that it is not subject to the Open Records Act. Along with its answer, Phoebe Putney also filed a counterclaim for attorney fees under OCGA § 50-18-73 (b), which provides that

[i]n any action brought to enforce the provisions of [the Open Records Act] in which the court determines that either party acted without substantial justification either in not complying with [the Open Records Act] or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.

In response, Geer filed a motion to strike Phoebe Putney's counterclaim for attorney fees under Georgia's anti-SLAPP statute, OCGA § 9-11-11.1, asserting that the counterclaim was nothing more than an effort to chill his rights to petition the government and to free speech. Following a hearing, the trial court denied Geer's motion to strike, concluding that he had not made a prima facie showing that the anti-SLAPP statute applied to the counterclaim. The trial court did not consider the merits of Phoebe Putney's claim for attorney fees.

Geer appealed the trial court's order to the Court of Appeals pursuant to OCGA § 9-11-11.1 (e). The Court of Appeals later affirmed the trial court's judgment, concluding that the anti-SLAPP statute does not apply to an Open Records Act defendant's claim for attorney fees because the anti-SLAPP statute "does not preclude a party defending a lawsuit from preserving its right to seek attorney fees and expenses if the lawsuit later is determined to lack substantial justification." Geer , 350 Ga. App. at 128, 828 S.E.2d 108 (citing Paulding County v. Morrison , 316 Ga. App. 806, 810-811 (II), 728 S.E.2d 921 (2012) ). The Court of Appeals concluded that, although the request for attorney fees in Morrison had not been styled as a counterclaim, for purposes of the anti-SLAPP statute, it makes no difference whether the request for attorney fees "is styled as a counterclaim or as a separate motion" as long as the defendant relies "on an alleged lack of substantial justification" for the plaintiff's claims as its basis for relief. Geer , 350 Ga. App. at 128, 828 S.E.2d 108. Citing this Court's decision in EarthResources, LLC v. Morgan County , 281 Ga. 396, 401 (4), 638 S.E.2d 325 (2006), the Court of Appeals went on to note that "the anti-SLAPP statute was not intended to immunize parties from the consequences of abusive litigation[,] and it plainly does not extend to protecting those who abuse the judicial process." (Punctuation omitted.) Geer , 350 Ga. App. at 128, 828 S.E.2d 108.

Geer filed a timely petition for certiorari in this Court, which we granted, directing the parties to address a single question: whether the Court of Appeals erred in holding that the anti-SLAPP statute does not apply to Phoebe Putney's counterclaim for attorney fees under the Open Records Act. After considering the parties’ arguments on that issue, including at oral argument held virtually on May 21, 2020, we conclude that the Court of Appeals did not err in affirming the trial court's denial of Geer's motion to strike. However, as we explain below, we reach that conclusion based on a somewhat different rationale than that set forth by the Court of Appeals.

2. The Open Records Act and the Anti-SLAPP statute.

As we have previously noted, among the purposes of Georgia's Open Records Act is fostering confidence in government through openness to the public. See City of Atlanta v. Corey Entertainment, Inc. , 278 Ga. 474, 476 (1), 604 S.E.2d 140 (2004). To that end, the Act provides broadly for access to "public records" prepared, maintained, or received by any "agency" covered by the Act. OCGA § 50-18-70 (b). The Act allows members of the public to inspect and copy these records, provides certain disclosure exceptions, and prescribes civil and criminal penalties for Act violations. See OCGA §§ 50-18-71, - 72, - 74 (a). The Act gives superior courts jurisdiction over actions brought to enforce the provisions of the Act. See OCGA § 50-18-73 (a). It also empowers the trial court to assess attorney fees and reasonable litigation costs against a record holder if the court determines that it acted without substantial justification in not complying with the Open Records Act or against a person requesting records if the court determines that it acted without substantial justification in instituting litigation. See OCGA § 50-18-73 (b). Critically, a claim for attorney fees under the Act is evaluated by the court "on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought." Id.

As Phoebe Putney concedes, because requests under the Open Records Act, by their very nature, pertain to public entities and records regarding matters of public interest or concern, issues regarding the protection of requestors’ constitutional rights to free speech and petition may arise any time a request for records is denied. Such rights may also be threatened when a party sues to enforce a records request under the Open Records Act and the party defending the suit files a counterclaim or initiates separate litigation intended solely to harass the party requesting records under the Act. Suits initiated for that purpose or to otherwise impede participation in public affairs are known as "strategic lawsuits against public participation" or "SLAPPs." See Wilkes & McHugh, P.A. v. LTC Consulting, L.P. , 306 Ga. 252, 257 (2), 830 S.E.2d 119 (2019).

As the Court of Appeals has articulated, a SLAPP is "a lawsuit intended to silence and intimidate critics or opponents by overwhelming them with the cost of a legal defense until they abandon that criticism or opposition." Rogers v. Dupree , 340 Ga. App. 811, 814 (2), 799 S.E.2d 1 (2017). SLAPPs are "meritless lawsuits brought not to vindicate legally cognizable rights, but instead to deter or punish the exercise of constitutional rights of petition and free speech by tying up their target's resources and driving up the costs of litigation." Wilkes , 306 Ga. at 257 (2), 830 S.E.2d 119. Many states, including Georgia, have enacted statutes designed to curtail SLAPPs. See Jubilee Dev. Partners, LLC v. Strategic Jubilee Holdings, LLC , 344 Ga. App. 204, 207, 809 S.E.2d 542 (2018). Those statutes, including Georgia's, give a person or entity who believes they have been subjected to a SLAPP an avenue for ending the suit quickly, summarily, and at minimal expense.

Codified at OCGA § 9-11-11.1, Georgia's anti-SLAPP statute was, according to the General Assembly, enacted to

encourage participation by the citizens of Georgia in matters of public significance and public interest through the exercise of their constitutional rights of petition and freedom of speech. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of petition and freedom of speech should not be chilled through abuse of the judicial process.

OCGA § 9-11-11.1 (a). To advance this goal, the anti-SLAPP statute covers any

claim for relief against a person or entity arising from any act of such person or entity which could reasonably be construed as an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern[.]

OCGA § 9-11-11.1 (b) (1). OCGA § 9-11-11.1 (c) further defines the coverage of the anti-SLAPP statute. Subsection (c) provides:

As used in this Code section, the term "act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern" shall include:

(1) Any written or oral statement or writing or petition made before a legislative, executive, or judicial

...