In the Supreme Court of Georgia
Decided: January 19, 2016
S15A1722. MOSLEY v. LOWE.
HUNSTEIN, Justice.
This case requires us to determine whether recent amendments to this
State’s criminal history record information statute, OCGA § 35-3-37, are to be
applied to information regarding arrests occurring prior to the amendments’
effective date. Because the statute itself makes clear that it does apply to
information regarding arrests pre-dating the amendments, and because such
application presents no constitutional problem, we hold that the amendments to
the statute do apply here. Accordingly, we affirm the judgment of the superior
court.
In February 1996, Appellee Belinda Lowe was arrested and charged in
Clayton County with simple assault. When the victim thereafter failed to appear
for trial, the State moved to nolle pros the charge for want of prosecution, and
the court granted the motion in May 1996.
In August 2014, after the effective date of recent amendments to the
criminal history record information statute, Lowe applied to the Clayton County
Sheriff’s Office to have her arrest record restricted pursuant to OCGA § 35-3-37
(h).1 The Clayton County Solicitor General denied the request, and Lowe then
petitioned the superior court for judicial review, naming as respondents Clayton
County Solicitor General Tasha Mosley and Clayton County Sheriff Victor Hill
(hereinafter, collectively, “Mosley”).
Following a hearing, the superior court determined that Mosley had erred
in denying Lowe’s application. Noting that its determination rested on whether
the recent amendments to OCGA § 35-3-37 were to be applied retroactively to
prior arrests, the court held that the General Assembly had intended for the
amended statute to apply to prior arrests; that such application does not violate
the constitutional prohibition on retroactive laws, see Ga. Const. of 1983, Art.
I, Sec. I, Par. X; and that, under the amended statute, Lowe was eligible for
record restriction as to the 1996 assault charge. Having reviewed the record and
the applicable law, we agree with the superior court’s conclusions.
1. The current version of OCGA § 35-3-37 was enacted as part of a
As discussed below, record “restriction” refers to the process of protecting
1
from public access information regarding an individual’s criminal history. See
OCGA § 35-3-37 (a) (6) (defining “restriction”).
2
comprehensive criminal justice reform effort spearheaded in 2011 by Governor
Nathan Deal. See Meg Buice & Tamara Garcia, Crimes & Offenses, HB 1176,
29 Ga. St. U. L. Rev. 290, 294-295 (2012). Signed into law in May 2012,
House Bill 1176 constituted an omnibus package of reforms to the State’s
criminal justice laws and procedures, which, inter alia, replaced the previous
version of OCGA § 35-3-37 with the current version, effective July 1, 2013.
Ga. L. 2012, p. 899, 930, 949, §§ 6-2, 9-1 (c). Under the current law, the
concept of “restriction,” whereby arrest records are generally shielded from
public view, replaces the concept of “expungement,” under which such records
were destroyed outright. Compare OCGA § 35-3-37 (a) (6), with OCGA § 35-
3-37 (d) (4) (2012).2
Under the current version of OCGA § 35-3-37, individuals are afforded
the right to automatic restriction of their “criminal history record information”3
2
Specifically, records that are “restricted” are “available only to judicial
officials and criminal justice agencies for law enforcement or criminal investigative
purposes or to criminal justice agencies for purposes of employment” and are
prohibited from being “disclosed or otherwise made available to any private persons
or businesses.” OCGA § 35-3-37 (a) (6). The Georgia Crime and Information Center
(GCIC), which collects and maintains criminal history record information on a state-
wide basis, is responsible for implementing the restriction of records. See id. at (h).
3
See OCGA § 35-3-30 (4) (A) (defining “criminal history record information”
as “information collected by criminal justice agencies on individuals consisting of
3
pertaining to most arrests ultimately ending in non-conviction. OCGA § 35-3-
37 (h).4 As compared to expungement under prior law, restriction is thus
available as to a broader range of criminal dispositions, with fewer exceptions.
Compare OCGA § 35-3-37 (h) - (j), with former OCGA § 35-3-37 (d) (2012).
In addition, record restriction generally takes effect automatically as to eligible
arrests, see OCGA § 35-3-37 (h) (“[a]ccess . . . shall be restricted by the
[GCIC]”), whereas expungement was accomplished only by request, see former
OCGA § 35-3-37 (d) (1) (2012) (individual “may request” expungement).
As a means of addressing criminal history record information predating
the effective date of these amendments, the statute expressly provides that “as
to arrests occurring before July 1, 2013, an individual may, in writing, request
the arresting law enforcement agency to restrict the criminal history record
information of an arrest.” OCGA § 35-3-37 (n) (1).5 Such requests are to be
identifiable descriptions and notations of arrests, detentions, indictments, accusations,
information, or other formal charges, and any disposition arising therefrom,
sentencing, correctional supervision, and release”).
4
This includes instances in which no formal charges were brought as well as
instances in which, post-indictment, the charges were dismissed or nolle prossed or
the individual was acquitted. Id. at (h) (1) & (2).
5
This provision is subject to certain exceptions, which are not applicable here.
Id.
4
assessed against the expanded eligibility criteria of the amended law. Id. at (n)
(2) (requiring prosecuting attorney to review requests to ascertain whether arrest
meets criteria under subsection (h)). Thus, the clear and unambiguous terms of
the amended statute provide for its applicability to arrests pre-dating the
amendments’ July 1, 2013 effective date.
2. “Even when the General Assembly clearly provides that a law is to be
applied retroactively, our Constitution forbids statutes that apply retroactively
so as to ‘injuriously affect the vested rights of citizens.’” Deal v. Coleman, 294
Ga. 170, 175 (2) (751 SE2d 337) (2013); see also Ga. Const. of 1983, Art. I,
Sec. I, Par. X (prohibiting the enactment of ex post facto and retroactive laws).
As we recently made clear in Deal v. Coleman, only rights that are private in
nature are capable of vesting so as to implicate the prohibition on retroactive
laws. Id. at 178-181. As we also made clear in Deal v. Coleman, legislative
schemes under which citizens are afforded access to public information
generally create public rather than private rights. Id. at 183-184. Accordingly,
such schemes may be modified retroactively with no constitutional impediment.
Id. at 184.
The effect of the amendments to OCGA § 35-3-37 is to expand the right
5
of individuals to restrict access to their criminal history record information and,
concomitantly, to limit the right of the general public to gain access to such
information. The only right that has been impaired in any way is the public’s
right to access information. Because such a right is a public right, incapable of
vesting in any particular person, the modification of this right poses no
constitutional problem. See Deal v. Coleman, 294 Ga. at 184. The amended
version of OCGA § 35-3-37 thus both is intended to apply and properly can be
applied to Lowe’s record restriction request.
3. The amended statute, in pertinent part, provides for restriction where,
after indictment or accusation, “all charges were dismissed or nolle prossed.”
OCGA § 35-3-37 (h) (2) (A). Though certain disqualifying exceptions are
enumerated, see id. at (i) (1), none of these exceptions apply here. As it is
undisputed that the 1996 assault charge against Lowe was nolle prossed, and as
such disposition does not fall within any of the exceptions enumerated in
subsection (i) (1) of the statute, Lowe is eligible for record restriction under the
current statute, and her request should have been granted.6
Judgment affirmed. All the Justices concur.
6
Mosley conceded below that, if the current version of the statute were held to
apply, Lowe’s restriction request should have been granted.
6