Unified Government v. Athens Newspapers

• Decision Date: 30 June 2008
• Docket Number: No. S07G1133.,S07G1133.
• Parties: UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY v. ATHENS NEWSPAPERS, LLC.
• Court: Georgia Supreme Court

663 S.E.2d 248 284 Ga. 192 UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY
v.
ATHENS NEWSPAPERS, LLC. No. S07G1133. Supreme Court of Georgia. June 30, 2008. Reconsideration Denied July 25, 2008.

[663 S.E.2d 249]

William C. Berryman, Jr., Athens, for appellant.

Hull, Towill, Norman, Barrett & Salley, David E. Hudson, Davis A. Dunaway, Augusta, for appellee.

Susan J. Moore, Delong, Caldwell & Bridgers, Michael A. Caldwell, Charles C. Olson, Prosecuting Atty's Council of Ga., James F. Grubiak, Kemuel A. Kimbrough, Ted C. Baggett, Atlanta, Arnall, Golden & Gregory, Robert L. Rothman, Christopher K. Withers, Atlanta, amici curiae.

CARLEY, Justice.

In 2005, Appellee Athens Newspapers, LLC submitted a request under the Open Records Act, OCGA § 50-18-70 et seq., to Appellant Unified Government of Athens-Clarke County, seeking police department records relating to the investigation of the 1992 rape and murder of Jennifer Stone. Despite extensive investigation, no one has yet been arrested or identified as a suspect, and investigators have not identified any new evidence for several years. However, the [284 Ga. 193] police department has not closed the investigatory file, but has instead utilized certain procedures with the potential to provide new leads in the case, including the submission of a report to the FBI's Violent Criminal Apprehension Program and regular computerized checks of DNA profiles obtained from the crime scene against state and federal DNA databases.

Pursuant to the exemption from disclosure in OCGA § 50-18-72(a)(4) for records in pending investigations and prosecutions, Appellant refused to produce any of the requested investigatory records other than the initial incident report. Thereafter, Appellee brought suit against Appellant, seeking an order for disclosure of the records. Appellee also alleged that the response to its request was untimely and that it was entitled to attorney's fees and litigation expenses. On cross motions for summary judgment, the trial court granted summary judgment in favor of Appellant, finding as a matter of law that the investigation into Ms. Stone's death is still pending and subject to exemption from disclosure under OCGA § 50-18-72(a)(4), and that Appellant's response to Appellee's request was not untimely.

On appeal, the Court of Appeals reversed, narrowly construing that exemption, relying on Parker v. Lee, 259 Ga. 195, 378 S.E.2d 677 (1989), and holding that the investigation at issue is no longer pending. Athens Newspapers v. Unified Govt. of Athens-Clarke County, 284 Ga.App. 465, 466(1), 643 S.E.2d 774 (2007). The Court of Appeals also construed OCGA § 50-18-70(f) to mean that an agency must respond to an Open Records Act request within three business days after receipt of the request by the agency, rather than receipt by the employee in charge of the records. Athens Newspapers v. Unified Govt. of Athens-Clarke County, supra at 471(3), 643 S.E.2d 774. Having granted certiorari to review these rulings, we affirm in part and reverse in part, holding that an investigation remains "pending" under OCGA § 50-18-72(a)(4) until the file is closed, and that the three-day time period of OCGA § 50-18-70(f) commences upon delivery of the request to the agency, rather than the particular employee in charge of the records.

1. The Open Records Act provides for the right of citizens to inspect public records, stating that,

663 S.E.2d 250

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, [they] 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.

[284 Ga. 194] OCGA § 50-18-70(b). Other than the specific statutory exemptions, this has been the law since 1959. Ga. L.1959, p. 88, § 1. In 1976, this Court recognized the need for a strong "pending investigation" exemption:

Statements, memoranda, narrative reports, etc. made and maintained in the course of a pending investigation should not in most instances, in the public interest, be available for inspection by the public. However, once an investigation is concluded and the file closed, either with or without prosecution by the state, such public records in most instances should be available for public inspection. ... Generally, the public records that are prepared and maintained in a current and continuing investigation of possible criminal activity should not be open for public inspection. On the other hand, and again generally, public records prepared and maintained in a concluded investigation of alleged or actual criminal activity should be available for public inspection.

Houston v. Rutledge, 237 Ga. 764, 765-766, 229 S.E.2d 624 (1976). Thereafter, in Napper v. Ga. Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987), this Court articulated a "pending prosecution" exemption, adopting "the federal rule that a law-enforcement proceeding, to justify non-disclosure of a public record, must be an imminent adjudicatory proceeding of finite duration. [Cit.]" Parker v. Lee, supra at 197(2), 378 S.E.2d 677.

In 1988, the legislature codified the exemptions for pending investigations and prosecutions in OCGA § 50-18-72(a)(4). Ga. L.1988, pp. 243, 247, § 3. That subsection provides that the following are exempt from public disclosure:

Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial 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. ...

OCGA § 50-18-72(a)(4). This subsection was first construed in Parker, which "interpret[ed] the pending-prosecution exemption of OCGA § 50-18-72(a)(4) to refer to imminent adjudicatory proceedings of finite duration." Parker v. Lee, supra at 198(4), 378 S.E.2d 677. In making that interpretation, this Court first looked to the rule of construction [284 Ga. 195] that "courts should construe statutes in connection and harmony with existing judicial decisions where possible. [Cit.]" Parker v. Lee, supra. Because Parker involved the "pending prosecution" exemption, the relevant prior case law consisted of Napper, and Parker did indeed "[c]onstru[e] § 50-18-72(a)(4) consistently with Napper. ..." Parker v. Lee, supra.

However, this case does not involve the "pending prosecution" exemption. Instead, its focus is on the "pending investigation" exemption. We cannot define the "pending investigation" exemption to the Open Records Act by simply adopting the judicial definition of the "pending prosecution" exemption in Parker. The prior case law which is relevant here is found in Houston. The portion of Houston quoted above was also quoted in Napper, supra at 162(1)(a), 356 S.E.2d 640, and was the law at the time Napper was decided. Thus, Napper itself made a distinction between a pending investigation and a pending prosecution, and nowhere in Parker is that distinction questioned. It is clear, therefore, that, under Houston and Napper, an investigation is "pending" until it "is concluded and the file closed." Under Parker, the exemption in OCGA § 50-18-72(a)(4), if possible, should be construed consistently with this definition.

Although exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed "in derogation of its express...