Georgia Open Records Act: Three Steps To Responding To Open Records Requests
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The Georgia Open Records Act O.C.G.A. § 51-18-70 et seq. was recently amended to provide much greater access to public records. This paper discusses the three basic steps to responding to an open records request under the new law. The paper makes some specific comments relating to Geographic Information System data. GIS data is a gold mine of information, and many local governments are concerned about freely giving away their expensively created databases to marketers and others. However, the general import of the law is that the information is public, and must be provided.
1.Determination of whether requested data is public records:
"[T]he term 'public record' shall mean 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. O.C.G.A. § 50-18-70(a).
GIS data, as computer based or generated information, would be a public record subject to disclosure.
2.Determination of whether requested data is exempt:
Exemptions interpreted narrowly
This Code section shall be interpreted narrowly so as to exclude from disclosure only that portion of a public record to which an exclusion is directly applicable. It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying. O.C.G.A. § 50-18-72(g).
Producing the data
No public officer or agency shall be required to prepare reports, summaries, or compilations not in existence at the time of the request. O.C.G.A. § 50-18-70(d).
This presents a gray area in relation to GIS.
The Program itself
(f) (1) As used in this article, the term:
(A) "Computer program" means a set of instructions, statements, or related data that, in actual or modified form, is capable of causing a computer or computer system to perform specified functions.
(B) "Computer software" means one or more computer programs, existing in any form, or any associated operational procedures, manuals, or other documentation.
(2) This article shall not be applicable to any computer program or computer software used or maintained in the course of operation of a public office or agency. O.C.G.A. § 50-18-72 (f)
Records from DNR showing location of historic property or rare plants and animals, and DNR has determined that disclosure creates substantial risk of harm, destruction etc. (A)(10 and 11).
(others: medical, judge probate court, personal info law enf, atty-client privileged, police reports)
3.Crafting response to request:
Three Days to Determine
The individual in control of such public record or records shall have a reasonable amount of time to determine whether or not the record or records requested are subject to access under this article and to permit inspection and copying. In no event shall this time exceed three business days. O.C.G.A. § 50-18-70(f).
Report unavailability or timeline within three days
Where responsive records exist but are not available within three business days of
the request, a written description of such records, together with a timetable for their inspection and copying, shall be provided within that period; provided, however, that records not subject to inspection under this article need not be made available for inspection and copying or described other than as required by subsection (h) of Code Section 50-18-72, and no records need be made available for inspection or copying if the public officer or agency in control of such records shall have obtained, within that period of three business days, an order based on an exception in this article of a superior court of this state staying or refusing the requested access to such records.
O.C.G.A. § 50-18-70(f).
Three days to list legal basis for exemption
Within the three business days applicable to response to a request for access to records under this article, the public officer or agency having control of such record or records, if access to such record or records is denied in whole or in part, shall specify in writing the specific legal authority exempting such record or records from disclosure, by Code section, subsection, and paragraph. O.C.G.A. § 50-18-72(h).
One shot to amend
No addition to or amendment of such designation shall be permitted thereafter or in any proceeding to enforce the terms of this article; provided, however, that such designation may be amended or supplemented one time within five days of discovery of an error in such designation or within five days of the institution of an action to enforce this chapter, whichever is sooner; provided, further, that the right to amend or supplement based upon discovery of an error may be exercised on only one occasion. O.C.G.A. § 50-18-72(h).
Costs of error
In the event that such designation includes provisions not relevant to the subject matter of the request, costs and reasonable attorney's fees may be awarded pursuant to Code Section 50-18-73. O.C.G.A. § 50-18-72(h).
Access by Computer
At the request of the person, firm, corporation or other entity requesting such records, records maintained by computer shall be made available where practicable by electronic means, including Internet access, subject to reasonable security restrictions preventing access to nonrequested or nonavailable records. O.C.G.A. § 50-18-70(g).
Estimating Costs
Any agency receiving a request for public records shall be required to notify
the party making the request of the estimated cost of the copying, search, retrieval, and other administrative fees authorized by Code Section 50-18-71 as a condition of compliance with the provisions of this article prior to fulfilling the request as a condition for the assessment of any fee... O.C.G.A. § 50-18-71.2.
Costs
(c) Where no fee is otherwise provided by law, the agency may charge and collect a uniform copying fee not to exceed 25 cents per page.
(d) In addition, a reasonable charge may be collected for search, retrieval, and other direct administrative costs for complying with a request under this Code section. The hourly charge shall not exceed the salary of the lowest paid full-time employee who, in the discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.
(e) An agency shall utilize the most economical means available for providing copies of public records.
(f) Where information requested is maintained by computer, an agency may charge the public its actual cost of a computer disk or tape onto which the information is transferred and may charge for the administrative time involved as set forth in subsection (d) of this Code section.
O.C.G.A. § 50-18-71
Electronic Costs/Recovering upfront costs
The Code provides, "...no new fees other than those directly attributable to providing access shall be assessed where records are made available by electronic means." O.C.G.A. § 50-18-71.2. Hence, no pro rata charge for existing infrastructure is allowable.
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