Consumer Credit Research Foundation v. Board of Regents of the University System of Georgia

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

May 4, 2017

In the Court of Appeals of Georgia
A17A0620. CONSUMER CREDIT RESEARCH FOUNDATION v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA et al.

BARNES, Presiding Judge.

At issue in this appeal is whether state agencies have the discretion to release

materials related to academic research in response to a request made under the

Georgia Open Records Act, even if the Act specifically exempts the materials from

disclosure to the public and a private party has sued to enjoin their release. The trial

court concluded that state agencies have such discretionary authority, leading the

court to grant summary judgment to the Board of Regents of the University System

of Georgia and the Campaign for Accountability (collectively, the “University

Defendants”) and to deny summary judgment to the Consumer Credit Research

Foundation (the “Foundation”). However, in Bowers v. Shelton, 265 Ga. 247, 248-

249 (1) (453 SE2d 741) (1995), the Supreme Court of Georgia held that a state

agency’s compliance with the specific exceptions to disclosure contained in the Open
Records Act is mandatory rather than discretionary, and that private parties may sue

to enjoin an agency from releasing records that fall within one of those exceptions.

Based on the Bowers decision, the trial court erred in holding that a state agency’s

compliance with the specific exceptions to disclosure for materials related to

academic research was discretionary. Accordingly, because the trial court relied on

an erroneous legal theory, we vacate the trial court’s summary judgment order and

remand for further proceedings consistent with this opinion.

The relevant facts are undisputed. In November 2013, the Foundation entered

into a consulting agreement with the Kennesaw State University Research and

Service Foundation. In accordance with the agreement, a Kennesaw State University

(“KSU”) professor conducted statistical research and analysis relating to “payday”

loans, which the professor incorporated into a paper that was published in 2014.

In June 2015, the Campaign for Accountability (“CFA”) sent a request to KSU

under the Georgia Open Records Act, OCGA § 50-18-70 et seq., for copies of certain

correspondence, including e-mails and other communications between the KSU

professor and the Foundation relating to the professor’s payday-loan research (the

“research correspondence”). KSU informed the CFA that it did not oppose the release

of the research correspondence in redacted form and notified the Foundation that it

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planned to release the redacted correspondence to the CFA in response to the open

records request.

The Foundation objected to KSU releasing the research correspondence to the

CFA. Because KSU is part of the University System of Georgia, the Foundation filed

the instant action for declaratory and injunctive relief against the Board of Regents

in the Superior Court of Fulton County to prevent the release of the research

correspondence under the Open Records Act. The trial court granted the CFA’s

motion to intervene in the action as a party defendant.

The parties filed cross-motions for summary judgment regarding the release of

the research correspondence. The Foundation emphasized that the Open Records Act

contains a list of specific exceptions to public disclosure in OCGA § 50-18-72 (a) and

argued that the research correspondence was specifically exempt from disclosure

under two of those exceptions for academic research-related materials, OCGA § 50-

18-72 (a) (35) and (36) (the “research exceptions”).1 The Foundation further argued

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The two research exceptions provide in relevant part:
(a) Public disclosure shall not be required for records that are:
....
(35) Data, records, or information of a proprietary nature produced or
collected by or for faculty or staff of state institutions of higher learning,
or other governmental agencies, in the conduct of, or as a result of, study
or research on commercial, scientific, technical, or scholarly issues,

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that because the research exceptions to disclosure applied, KSU was prohibited from

releasing the research correspondence to the CFA.

The University Defendants responded that the Foundation had failed to prove

that the research correspondence fell within either of the two research exceptions

found in the Open Records Act. The University Defendants further responded that

even if the research correspondence fell within the two research exceptions, those

exceptions simply permitted, but did not require, KSU to withhold the

correspondence from disclosure. Consequently, the University Defendants argued,

whether sponsored by the institution alone or in conjunction with a
governmental body or private concern, where such data, records, or
information has not been publicly released, published, copyrighted, or
patented;
(36) Any data, records, or information developed, collected, or received
by or on behalf of faculty, staff, employees, or students of an institution
of higher education or any public or private entity supporting or
participating in the activities of an institution of higher education in the
conduct of, or as a result of, study or research on medical, scientific,
technical, scholarly, or artistic issues, whether sponsored by the
institution alone or in conjunction with a governmental body or private
entity, until such information is published, patented, otherwise publicly
disseminated, or released to an agency whereupon the request must be
made to the agency. This paragraph shall apply to, but shall not be
limited to, information provided by participants in research, research
notes and data, discoveries, research projects, methodologies, protocols,
and creative works . . . .
OCGA § 50-18-72 (a) (35), (36).

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KSU had the discretionary authority to release the research correspondence to the

CFA even if the research exceptions found in OCGA § 50-18-72 (a) (35) and (36)

applied.

In response to the cross-motions for summary judgment, the trial court granted

summary judgment to the University Defendants and denied it to the Foundation. The

trial court ruled that the two research exceptions in the Open Records Act authorized

a state agency to withhold research materials covered by the exceptions from public

disclosure, but that the Act did not mandate nondisclosure. Based on its conclusion

that the research exceptions did not place a mandatory duty on state agencies to

withhold research materials covered by the exceptions from public disclosure, the

trial court ruled that KSU had the discretion to release the research correspondence

in response to the Open Records Act request made by the CFA, even assuming that

the correspondence fell within one or both of the research exceptions. The trial court

ultimately did not resolve whether any of the research correspondence fell within the

two research exceptions contained in the Open Records Act. The Foundation now

appeals the trial court’s summary judgment order.

Our review of a trial court’s statutory interpretation is de novo, Kennedy Dev.

Co. v. Camp, 290 Ga. 257, 258 (719 SE2d 442) (2011), and we begin our review with

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a summary of the applicable statutory framework. The Georgia Open Records Act

authorizes the personal inspection and copying of public records, “except those which

by order of a court of this state or by law are specifically exempted from disclosure.”

OCGA § 50-18-71 (a). As previously noted, several specific exceptions to disclosure

are listed in OCGA § 50-18-72 (a) of the Act, including the two research exceptions

found in OCGA § 50-18-72 (a) (35) and (36).

“Because public policy strongly favors open government, any purported

statutory exemption from disclosure under the Open Records Act must be narrowly

construed.” (Punctuation, footnote, and emphasis omitted.) City of Atlanta v. Corey

Entertainment, 278 Ga. 474, 476 (1) (604 SE2d 140) (2004). See OCGA § 50-18-70

(a). “However, although exemptions from disclosure under the Open Records Act are

narrowly construed, the Act obviously should not be construed in derogation of its

express terms.” (Citation and punctuation omitted.) Evans v. Ga. Bureau of

Investigation, 297 Ga. 318, 319 (773 SE2d 725) (2015). “[E]ven when documents are

found to be public records, and therefore open for inspection by the public, there may

be some material contained therein which for competing public policy reasons are not

subject to disclosure.” Harris v. Cox Enterprises, 256 Ga. 299, 300 (348 SE2d 448)

(1986) (per curiam) (on motion for reconsideration),

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 The Open Records Act also authorizes actions to enforce its provisions.

Specifically, the Act grants legal and equitable jurisdiction to the superior courts of

this state “to entertain actions against persons or agencies having custody of records

open to the public under [the Open Records Act] to enforce compliance with the

provisions of [the Act].” OCGA § 50-18-73 (a). Enforcement actions “may be

brought by any person, firm, corporation, or other entity.” Id. And while the Open

Records Act does not authorize an award of compensatory or punitive damages to a

party bringing a civil enforcement action, McBride v. Wetherington, 199 Ga. App. 7,

8 (403 SE2d 873) (1991), a court can sanction state agencies that negligently violate

the Act with civil penalties and award attorney fees under certain circumstances.

OCGA §§ 50-18-73 (b); 50-18-74 (a).

Mindful of this statutory framework, we turn to the specific arguments raised

here. On appeal, the Foundation argues that the trial court erred in ruling that KSU

had the discretion to release the research correspondence to the CFA, even if the

correspondence was specifically exempt from disclosure under the research

exceptions found in OCGA § 50-18-72 (a) (35) and (36) of the Open Records Act.

According to the Foundation, the trial court’s ruling is inconsistent with the reasoning

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and analysis of the Georgia Supreme Court in Bowers v. Shelton, 265 Ga. 247, 248-

249 (1) (453 SE2d 741) (1995). We agree.

In Bowers, the Supreme Court addressed the question whether a private party

can bring suit to enjoin the disclosure of public records under the Open Records Act.

265 Ga. at 248-249 (1). In addressing this question, the Supreme Court compared the

Georgia Open Records Act to the federal Freedom of Information Act, 5 USC § 552

et seq. (“FOIA”). Bowers, 265 Ga. at 248-249 (1). The Supreme Court noted that the

FOIA’s “provisions exempting specified information from disclosure [are] meant only

to permit the governmental agency to withhold certain information, and [are] not

meant to mandate nondisclosure.” Id. at 248 (1). See 5 USC § 552 (b); Chrysler Corp.

v. Brown, 441 U.S. 281, 290-294 (II) (99 SCt 1705, 60 LE2d 208) (1979). Thus, the

Georgia Supreme Court pointed out, the FOIA “imposes no affirmative duty on an

agency to withhold information sought,” even if the information is specifically

exempted from disclosure. Bowers, 265 Ga. at 248 (1).

The Supreme Court emphasized, however, that the Georgia Open Records Act

“materially differs from the FOIA.” Bowers, 265 Ga. at 249 (1). As the Supreme

Court explained,

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 [t]he Georgia Act relating to the inspection of public records, OCGA §
50-18-70 et seq., requires disclosure of public records, with certain
exceptions enumerated at OCGA § 50-18-72 (a). While the enumerated
exceptions are similar to those contained in the FOIA, this Court has
determined that the Georgia Act mandates the nondisclosure of certain
excepted information.

(Citation and punctuation omitted; emphasis in original.) Id. at 248 (1).

In concluding that the nondisclosure of statutorily excepted information is

mandatory rather than discretionary under the Georgia Open Records Act, the

Supreme Court in Bowers relied in part on its prior decision in Harris v. Cox

Enterprises, Inc., 256 Ga. 299 (348 SE2d 448) (1986). Bowers, 265 Ga. at 248-249

(1). In Harris, the Supreme Court held that the Georgia Open Records Act “requires

a custodian of public records to preserve the confidentiality of information that the

public does not have a right to see,” and that the State could not “by waiver,

inadvertent or not, allow exempted information to be made public.” (Citation and

punctuation omitted.) 256 Ga. at 300.2 The Harris Court reasoned that the State could

2
Harris, in turn, relied on the earlier Supreme Court case of Griffin-Spalding
County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 446 (3) (241 SE2d 196)
(1978), where the Court held that “the intent of the General Assembly was to afford
to the public at large access to public records with the exceptions of certain
information which the [applicable law] exempts from disclosure,” and that the law

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not waive the rights of third parties who had an interest in confidential information

that was statutorily exempted from disclosure under the Open Records Act. Id.

In addition to relying on Harris, the Supreme Court in Bowers also focused on

the plain language of the Georgia Open Records Act in concluding that the

nondisclosure of statutorily excepted information is mandatory rather than

discretionary under the Act. 265 Ga. at 248-249 (1). In this regard, the Supreme Court

pointed out that, as noted supra, the Open Records Act grants superior courts

jurisdiction over actions brought “to enforce compliance” with the Act’s provisions,

OCGA § 50-18-73 (a), and the Act allows for the inspection of public records,

“except” for those which, among other things, are “specifically exempted” by law

from being disclosed. (Emphasis supplied.) OCGA § 50-18-71 (a).3 Bowers, 265 Ga.

at 248-249 (1). In light of this statutory language and framework, the Supreme Court

concluded that the Georgia Open Records Act creates a cause of action for private

“requires a custodian to expunge from the records any information that the public
does not have a right to see.”
3
Former OCGA § 50-18-70 (b), in effect at the time of the Bowers decision,
provided that public records were open for inspection “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.” Current OCGA § 50-18-71 (a) provides
that public records are open for public inspection “except those which by order of a
court of this state or by law are specifically exempted from disclosure.”

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parties “to enjoin disclosure of legally protected information,” 265 Ga. at 249 (1), and

that injunctive relief is appropriate if the public documents at issue are not “subject

to inspection and disclosure under the Open Records Act.” Id. at 249 (2).

Bowers establishes that when a state agency plans to disclose public records

to the public in response to an Open Records Act request, a private party is entitled

to bring suit under the Act and enjoin the agency from disclosing the records, if the

records are not “subject to inspection and disclosure,” i.e., if they fall within a

statutory exception listed in OCGA § 50-18-72 (a) or another statute. Bowers, 265

Ga. at 248-249 (1), (2). Injunctive relief against the state agency is warranted because,

as the Supreme Court later reiterated in Howard v. Sumter Free Press, 272 Ga. 521,

522 (1) (531 SE2d 698) (2000), a state agency’s “compliance with the Act is not

discretionary, but mandatory.” See also Doe v. Bd. of Regents of Univ. System of Ga.,

215 Ga. App. 684, 692 (4) (452 SE2d 776) (1994) (whole court) (“The Open Records

Act requires [the Board of Regents] to preserve the confidentiality of information that

the public does not have a right to see.”) (citation and punctuation omitted).

“It is axiomatic that this Court is bound by the precedent of the Supreme

Court.” Dillard v. Bishop Eddie Long Ministries, 258 Ga. App. 507, 510 (3) (574

SE2d 544) (2002). Accordingly, in light of the Supreme Court’s decision in Bowers,

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the trial court erred in ruling that KSU had the discretion to release the research

correspondence in response to CFA’s open record request, even if the Foundation

brought suit to enjoin the disclosure and demonstrated that the correspondence was

exempt from disclosure under OCGA § 50-18-72 (a) (35) or (36). Rather, pursuant

to the analysis and reasoning of the Bowers decision, the Foundation was entitled to

enjoin KSU from disclosing the research correspondence to the CFA, if the

Foundation showed that the correspondence fell within one or both of the research

exceptions found in the Open Records Act.

Because the trial court erroneously concluded that KSU had the discretion to

disclose the research correspondence to CFA, the trial court never addressed the

parties’ arguments regarding whether or to what extent the correspondence fell within

the research exceptions contained in OCGA § 50-18-72 (a) (35) or (36).

Consequently, we vacate the trial court’s summary judgment order and remand for the

trial court to consider in the first instance the parties’ arguments regarding the

application of one or both of the research exceptions to the correspondence at issue

in this case. See Harris, 256 Ga. at 302 (2) (remanding case for trial court to consider

whether records at issue fell within a statutory exception to disclosure). See generally

Community Renewal v. Nix, 279 Ga. 840, 842 (2) (621 SE2d 722) (2005) (declining

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to apply the right-for-any-reason rule, where trial court’s summary judgment ruling

was based upon an erroneous legal theory and other issues were left unresolved as a

result of the trial court’s ruling); City of Gainesville v. Dodd, 275 Ga. 834, 838-839

(573 SE2d 369) (2002) (appellate courts have discretion to vacate a trial court’s

summary judgment order and remand for the trial court to consider alternative

arguments in the first instance).

Judgment vacated and case remanded with direction. McMillian and Mercier,

JJ., concur.

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