ZACHARY: Exempt records can be released

DomeLight by Jim Zachary 

Just because a record held by local government is considered exempt from the state's Open Records Act does not mean that record cannot be released.

To say it another way, even if the document is exempted from the Open Records Act, public officials can still release it.

Last year, the state Supreme Court clearly said local government officials can release public records exempted from the Open Records Act, if they so choose.

Georgia public records laws allow for certain documents to be withheld but do not require it. 

The state's Open Records Act places no restrictions on elected and appointed officials who choose to be completely open and transparent.

Sometimes we hear records custodians say they are legally prohibited and will be fined if they release a record that can be exempted from public release. 

The key to understanding this is the word "can." A record exempt from the act can be sealed from the public but it doesn't have to be.

So, when local officials refuse to release a document to the public, it is a choice they are making. 

When the Georgia Supreme Court issued that decision last year, it was because of a dispute between the Board of Regents of the University System of Georgia and Campaign for Accountability and a group known as the Consumer Credit Research Foundation. A lawsuit had been filed by the Consumer Credit Research Foundation. 

CCRF, which is funded by the payday lending industry to support academic research on consumer finance, was seeking to block an open records request filed by the Campaign for Accountability. The Campaign for Accountability was asking for correspondence between CCRF and a Kennesaw State University professor who had received CCRF research funding.

Kennesaw State was ready to release the documents.

CCRF then sued to block the release. 

The Superior Court of Fulton County agreed with the university, saying that while there are academic research exemptions giving KSU the authority to withhold the information, the university could release the documents, if it wanted to do so. 

However, the Georgia Court of Appeals reversed the decision, writing that if a record is exempt it cannot be released. 

The appellate court got it wrong.

The Supreme Court overturned that bad decision and in doing so sent a strong message that while the Georgia Open Records Act allows certain exemptions it does not require nondisclosure.

Public records belong to the public. 

That’s what state law says.

Especially when it is in the public's best interest not only can records custodians release exempt records, they should. 

CNHI Deputy National Editor Jim Zachary is CNHI's regional editor for its Georgia, Florida, Mississippi, Tennessee, Alabama and Texas newspapers and editor of the Valdosta Daily Times. He is vice president of the Georgia First Amendment Foundation. 

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