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Georgia Court of Appeals Rules That State Legislature is Exempt from Public Records Laws

A divided court holds the state’s Open Records Act does not apply to the Georgia General Assembly or its offices.

Atlanta, Ga.—Does the term “every state office” include the offices of the Georgia General Assembly? According to an opinion released yesterday by the Fifth Division of the Court of Appeals of Georgia, the answer is “no.”

The decision comes in the case of Institute for Justice v. Reilly, a lawsuit filed by the Institute for Justice (IJ) in response to Georgia officials’ refusal to turn over records related to the state’s music-therapy licensing law. With yesterday’s decision, a 2-1 majority of the appeals court sided with the state, holding that documents in possession of the General Assembly—and all of its related offices—were exempt from the state’s Open Records Act. “The General Assembly,” the Court reasoned, “is not subject to a law unless named therein or the intent that it be included [is] clear and unmistakable.”

The dissent, authored by Chief Judge McFadden, questioned the accuracy of the majority’s ruling, ultimately concluding that, “I would hold that the words ‘every state office’ are ‘clear and unmistakable’ on their face.”

“We are obviously disappointed by the decision of the Court of Appeals,” said IJ Senior Vice President and Litigation Director Dana Berliner. “Open access to public records is vital in any free society. The purpose of the Open Records Act is to allow people to fully understand how their government operates and how lawmakers and agencies make decisions. Government should not keep secrets about how it governs.”

The ruling in Georgia reflects a troubling trend at the local, state and federal levels, as governments and agencies are stonewalling requests from the very citizens, journalists and activist groups that keep an eye on them. In this case, the government’s argument—that the General Assembly is not explicitly mentioned in Georgia’s Open Records Act and thus the General Assembly effectively exempted itself from its own law—is particularly concerning. If courts refuse to enforce a law that applies to the entire government and instead write in a blanket exception for the whole legislative branch, the outcome will be to limit citizens’ access to truthful information and insulate government from public scrutiny. This is precisely the scenario that our laws were designed to prevent.

Yesterday’s ruling is not the end of the road. IJ, which is represented in the action by Alex Harris, Mark Perry, Matt Reagan and Matt Gregory with the law firm Gibson Dunn and Darrell Sutton of the Sutton Law Group, plans to appeal the decision to the Georgia Supreme Court. “The people of Georgia deserve access to public records, just as the plain language of their Open Records Act demands,” said Berliner. “By appealing this decision to the Georgia Supreme Court, we hope to secure a ruling that the General Assembly and its officers are subject to the law just like every other governing body in Georgia.”

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