Red & Black Pub. Co., Inc. v. Board of Regents

• Decision Date: 15 March 1993
• Docket Number: Nos. S92A1111,S92X1112,s. S92A1111
• Court: Georgia Supreme Court
• Parties: , 81 Ed. Law Rep. 600, 21 Media L. Rep. 1309 The RED & BLACK PUBLISHING COMPANY, INC. et al. v. The BOARD OF REGENTS et al. The BOARD OF REGENTS et al. v. The RED & BLACK PUBLISHING COMPANY, INC. et al.

Page 257

427 S.E.2d 257

262 Ga. 848, 81 Ed. Law Rep. 600, 21

Media L. Rep. 1309

The RED & BLACK PUBLISHING COMPANY, INC. et al. v. The BOARD OF REGENTS et al.

The BOARD OF REGENTS et al. v. The RED & BLACK PUBLISHING COMPANY, INC. et al.

Nos. S92A1111, S92X1112.

Supreme Court of Georgia.

March 15, 1993.

R. Keegan Federal, Jr., Federal, Goetz & Cronkright, Anthony E. DiResta, George E. Hibbs, Morris, Manning & Martin, Atlanta, for Red & Black Pub. Co., Inc. in No. S92A1111.

Michael J. Bowers, Atty. Gen., Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, for Bd. of Regents in No. S92A1111.

Michael J. Bowers, Atty. Gen., Dennis R. Dunn, State Law Dept., Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, for Bd. of Regents in No. S92X1112.

R. Keegan Federal, Jr., Federal, Goetz & Cronkright, Anthony E. DiResta, Morris, Manning & Martin, Atlanta, for Red and Black Pub. Co., Inc., in No. S92X1112.

William M. Reid, George E. Hibbs, Morris, Manning & Martin, Atlanta.

Peter C. Canfield, James A. Demetry, Dow, Lohnes & Albertson, Atlanta, amicus appellee and appellant.

HUNT, Presiding Justice.

The Red & Black, the student newspaper of the University of Georgia, ¹ brought this action for injunctive relief against the Board of Regents, Charles Knapp as President of the University of Georgia and others, ² seeking access to records and disciplinary proceedings of the student Organization Court of the University of Georgia. ³ The trial court held the newspaper had a right of access to the records under the Open Records Act, OCGA § 50-18-70 et seq., but not to the proceedings under the Open Meetings Act, OCGA § 50-14-1 et seq. The trial court also granted defendant Knapp's motion that he be dismissed as a party. Both sides appeal. We affirm the trial court's ruling allowing access to the Organization Court's records; however, we reverse the trial court's order regarding the Organization Court's proceedings because we conclude those proceedings are subject to the Open Meetings Act. We also reverse the trial court's dismissal of President Knapp as a defendant.

1. The Organization Court

To determine whether the Organization Court is subject to the Open Records and Open Meetings Acts, we look first to the nature of that court and its relationship to the Board of Regents and the University of Georgia.

As noted by the trial court, the Board of Regents and its universities are state agencies or bodies for purposes of Georgia's Open Records and Meetings laws. Board of Regents v. Atlanta Journal, 259 Ga. 214(1), 378 S.E.2d 305 (1989); see also Dooley v. Davidson, 260 Ga. 577, 397 S.E.2d 922 (1990); McLarty v. Board of Regents, 231 Ga. 22, 200 S.E.2d 117 (1973). The Board of Regents governs the University of Georgia and delegates to the University the formulation of rules and regulations concerning the discipline of students and student social organizations. The University created the Office of Judicial Programs to handle discipline of students and student social organizations. ⁴ That office provides "training for the [student] justices, to aid in the administration of the courts, and to coordinate the future development of judicial bodies and hearing boards on campus."

The Student Judiciary hears and adjudicates alleged violations of University rules and regulations. ⁵ The Student Judiciary is divided into five different student courts: Traffic Court, Campus Court, Main Court, Pharmacy Court, and Organization Court. Students serve as justices on the courts, and court sessions are held on the University of Georgia campus. Staff of the Office of Judicial Programs (employees of the University) provide secretarial and administrative support for the student courts. All student records are housed in the Office of Judicial Programs.

The Organization Court hears and adjudicates cases involving alleged University rule and regulation violations on the part of fraternities and sororities. ⁶ Five student justices of the Organization Court must be present for that court to hold a hearing and to determine the appropriate disciplinary measures, with three votes necessary to find a defendant organization guilty. Hearings of the Organization Court are closed to the public at the request of the defendant organization.

Specific University regulations pertaining to student organizations include prohibitions against: damage to property, disorderly conduct, alcohol and drug misuse, unauthorized entry, gambling, and hazing. The Organization Court, if it determines a student organization regulation has been violated, may impose the following sanctions: recommendation for charter revocation; revocation of University registration; suspension; restriction; probation; oral reprimand; written reprimand; and community service. The Organization Court "may enlarge upon or modify this list to meet the particular circumstance in any case." ⁷ Fraternities and sororities are subject to the jurisdiction of the Office of Judicial Programs and the Organization Court throughout the year.

2. The Open Records Act

Georgia's Open Records Act defines "public records," in pertinent part, as:

all 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. "Public records" shall also mean such items received or maintained by a private person or entity on behalf of a public office or agency which are not otherwise subject to protection from disclosure.

OCGA § 50-18-70(a). The purpose of the Act "is not only to encourage public access to such information [so] ... the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions, but also to foster confidence in government through openness to the public." Athens Observer, Inc. v. Anderson, 245 Ga. 63, 66, 263 S.E.2d 128 (1980).

The defendants concede, as they must, that the records of the Organization Court are "public records" that, unless exempted, are subject to inspection by the general public under the Open Records Act. Board of Regents v. Atlanta Journal, supra; Macon Telegraph Publishing Co. v. Board of Regents, 256 Ga. 443, 350 S.E.2d 23 (1986). However, they contend that the records are specifically exempted by virtue of OCGA § 50-18-72(a) which provides that public disclosure is not required for records:

(1) specifically required by the federal government to be confidential;

(2) medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.

The defendants argue that both the above exemptions are triggered by the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, commonly known as the "Buckley Amendment." ⁸ We disagree. First, we have serious questions whether the Buckley Amendment even applies to the exemptions argued by the defendants since the Buckley Amendment does not prohibit disclosure of records. Rather, as noted by the trial court, the Buckley Amendment provides for the withholding of federal funds for institutions that have a policy or practice of permitting the release of educational records. Student Bar Association Board of Governors v. Byrd, 293 N.C. 594, 239 S.E.2d 415, 419 (1977); Tombrello v. USX Corp., 763 F.Supp. 541, 545-546 (N.D.Ala.1991); Bauer v. Kincaid, 759 F.Supp. 575, 589 (W.D.Mo.1991). Also, we look to the Buckley Amendment's purpose, which was not to grant individual students the right of privacy or access to educational records, but to control the careless release of educational information on the part of many institutions. Id. at 590; Smith v. Duquesne University, 612 F.Supp. 72, 80 (W.D.Pa.1985).

However, assuming, without deciding, that the threat of withdrawal of federal funding is equivalent to a prohibition of disclosure (as the defendants argue), we do not believe the documents sought are "education records" within the meaning of the Buckley Amendment. ⁹ The documents at issue involve charges of violations of University rules and regulations--specifically, in this case, hazing charges--against social fraternities. While the records in question are similar to, they are not the same as, those "maintained solely for law enforcement purposes," which are expressly excluded from the Buckley Amendment's purview. See Bauer v. Kincaid, supra. Nevertheless, the records are not of the type the Buckley Amendment is intended to protect, i.e., those relating to individual student academic performance, financial aid, or scholastic probation. ¹⁰ Id. at 591. Further, as noted by the trial court, the Organization Court records are maintained at the Office of Judicial Programs, while "education records" are maintained at the Registrar's Office.

Moreover, the Buckley Amendment specifically provides that the sanction of loss of federal funding does not occur when the institution furnishes information in compliance with a judicial order. 20 U.S.C. § 1232g(b)(2)(B), fn. 8, supra; State v. Birdsall, 116 Ariz. 196, 568 P.2d 1094, 1097 (Ct.App.1977); Rios v. Read, 73 F.R.D. 589, 598 (E.D.N.Y.1977). Thus, because the trial court ordered the records released, the Buckley Amendment cannot trigger either of the exemptions argued by the defendants.

For the foregoing reasons, we conclude the trial court correctly determined the Organization Court records to be subject to the Georgia Open Records Act.

3. The Open Meetings Act

The Georgia Open Meetings Act ("Government in Sunshine Law") provides that "all meetings ... shall be open to the public," OCGA § 50-14-1(b), and applies to "[e]very state department, agency, board, bureau, commission, and authority." OCGA § 50-14-1(a)(1)(A). "Meetings" are defined under the Act as

the gathering of a quorum of the members of the governing body of an agency or of any committee of its members created by such governing body ... at a designated time and place at which official...