INSTITUTE FOR JUSTICE v. REILLY Et Al.

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P.J., and GOSS, J.

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

July 2, 2019

In the Court of Appeals of Georgia
A19A0076. INSTITUTE FOR JUSTICE v. REILLY et al.

MCMILLIAN, Presiding Judge.

This appeal challenges a trial court order dismissing a complaint which alleged

that various state legislative offices violated Georgia’s Open Records Act, OCGA §

50-18-70 et seq. (the “Act”). The trial court dismissed the complaint for failure to

state a claim. Because the General Assembly and its offices are not subject to the

provisions of the Act, as construed by our Supreme Court, we affirm the order of

dismissal.

In reviewing a trial court’s ruling on a motion to dismiss, “[o]ur role is to

determine whether the allegations of the complaint, when construed in the light most

favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose

with certainty that the plaintiff would not be entitled to relief under any state of
provable facts.” (Citations and punctuation omitted.) Handberry v. Stuckey

Timberland, Inc., 345 Ga. App. 191, 191 (812 SE2d 547) (2018). So construed, the

complaint alleged that the Institute for Justice (the “Institute”), a nonprofit public

interest law firm, requested records from several Georgia legislative staff offices

about a 2012 statute regulating the practice of music therapy. The offices – including

the Office of the Clerk of the House of Representatives, the Office of the Secretary

of the Senate, the House Budget and Research Office, the Senate Budget and

Evaluation Office, the Senate Research Office, and the Office of Legislative Counsel

– refused the requests, asserting that the General Assembly and its staff offices are

exempt from disclosing records under the Act.

The Institute filed suit against the heads of those offices in their official

capacities, seeking declaratory and injunctive relief requiring the state offices to

provide the requested records.1 The defendants moved to dismiss the complaint for

failure to state a claim. After a hearing, the trial court granted the motions to dismiss,

finding that the General Assembly and its offices are not subject to the Open Records

1
The complaint originally included the Secretary of State as a defendant, but
after a settlement agreement between the Secretary of State and the Institute, the
claims against the Secretary of State were dismissed.

2
Act. The trial court also found that as to the Office of Legislative Counsel, the records

requested are specifically exempt from disclosure. The Institute appeals.2

1. In its current form, Georgia’s Open Records Act provides: “All public

records shall be open for personal inspection and copying, except those which by

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

OCGA § 50-18-71 (a). The Act further provides: “Agencies shall produce for

inspection all records responsive to a request within a reasonable amount of time not

to exceed three business days of receipt of a request[.]” OCGA § 50-18-71 (b) (1)

(A). And if any part of the requested records are withheld from disclosure, “the

agency shall notify the requester of the specific legal authority exempting the

requested record or records from disclosure by Code section, subsection, and

paragraph within a reasonable amount of time not to exceed three business days[.]”

OCGA § 50-18-71 (d). As used in the Act, the term “‘[a]gency’ shall have the same

2
In their appellate brief, the Appellees maintain that the trial court was correct
in its decision as stated, but also assert that the dismissal order should be affirmed
under the right for any reason rule based upon the political question doctrine and
legislative immunity and privilege. Because the trial court did not address these issues
and we otherwise affirm the dismissal, we decline to address these issues in the first
instance. See City of Gainesville v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002)
(“In such cases, the more efficient course would be for the appellate court to follow
the ‘right for any reason’ rule and consider grounds not addressed by the trial court,
if it finds that the trial court’s legal analysis is flawed.”) (emphasis added).

3
meaning as in Code Section 50-14-1[.]” OCGA § 50-18-70 (b) (1). That code section,

which is part of the Open Meetings Act, defines the term “agency” as meaning:

“Every state department, agency, board, bureau, office, commission, public

corporation, and authority[.]” OCGA § 50-14-1 (a) (1) (A).

The Institute maintains that the trial court erred in dismissing its complaint

because, under the plain language of the Act, it applies to all state “offices,” including

the offices of the General Assembly. “When we consider the meaning of a statute, we

must presume that the General Assembly meant what it said and said what it meant.

Thus if the language of the statute is plain and unambiguous, we simply apply the

statute as written.” (Citations and punctuation omitted.) CPF Investments, LLLP v.

Fulton County Bd. of Assessors, 330 Ga. App. 744, 746 (769 SE2d 159) (2015). See

also OCGA § 1-3-1 (b) (directing the application of ordinary signification to all

words in statutes). However, we are also bound to construe the text of a statute in the

appropriate context and in a manner consistent with how the text has previously been

construed. Our Supreme Court has recently reiterated this principle:

As we have said many times before when interpreting legal text, we do
not read words in isolation, but rather in context. The primary
determinant of a text’s meaning is its context, which includes the
structure and history of the text and the broader context in which that

4
 text was enacted, including statutory and decisional law that forms the
legal background of the written text.

(Citations and punctuation omitted.) City of Guyton v. Barrow, __ Ga. __, __ (3)

(Case No. S18G0944, decided on May 20, 2019).

With these principles in mind, we turn to the Act’s legal background, including

the Supreme Court’s decision in Coggin v. Davey, 233 Ga. 407, 410-11 (II) (211

SE2d 708) (1975). At the time Coggin was decided, Georgia’s “Sunshine Law,” as

it was then known,3 provided:

All meetings of any state department, agency, board, bureau,
commission or political subdivision . . . at which official actions are to
be taken are hereby declared to be public meetings and shall be open to
the public at all times. No resolution, rule, regulation or formal action
shall be binding except as taken or made at such meeting. Any action
contesting a resolution, rule, regulation or formal action on the ground
of noncompliance with this law must be commenced within ninety days
of the date of the resolution, rule or regulation was passed or the formal
action was taken.

3
Following its enactment in 1972, the Sunshine Law was amended several
times, and by 1988, it evolved into the Open Records Act, codified at OCGA § 50-18-
70 et seq., and the Open Meetings Act, codified at OCGA § 50-14-1, et seq. See D.
Voyles, Open Meetings: Revise Law, 5 GA. ST. U.L. REV. 475, 477-78 (1988)
(outlining amendments to Georgia’s Sunshine Law between 1972 and 1988).

5
(Punctuation omitted; emphasis added.) 233 Ga. at 407. In construing the language

of this statute, the Supreme Court found that, although “the statute is applicable to the

departments, agencies, boards, bureaus, etc. of this state and its political

subdivisions[,] . . . [i]t is not applicable to the General Assembly.” (Emphasis added.)

Id. at 411 (II) (reasoning that, as a separate branch of the government with the power

to adopt and enforce its own rules regarding its internal operations, the General

Assembly was not included in the Sunshine Law).

In 2012, the General Assembly undertook a comprehensive revision of both the

Open Records Act and Open Meetings Act. See Anna Adams & Lisa Scatamacchia,

State Government: Open and Public Meetings, 29 GA. ST. U.L. REV. 139, 145-52

(2012) (summary of numerous amendments made to multiple statutes within each

Act). However, nowhere in this comprehensive overhaul did the General Assembly

plainly identify itself as now subject to either Act. As explained by our Supreme

Court, “the General Assembly, including its committees, commissions and offices, is

not subject to a law unless named therein or the intent that it be included be clear and

unmistakable.” (Emphasis added.) Harrison Co. v. Code Revision Commission, 244

Ga. 325, 328 (1) (260 SE2d 30) (1979).

6
 The Institute nonetheless argues that the addition of the word “office” to the

list of state divisions somehow brings the offices of the General Assembly within the

scope of the Open Records and Open Meeting Acts, upending more than forty years

of precedent. However, our Supreme Court previously found that nearly identical

language did not include the General Assembly. Coggin, 233 Ga. at 411 (II). Thus,

when appropriately considering the text of the current Act within the “history of the

text and the broader context in which that text was enacted, including statutory and

decisional law,” Barrow, __ Ga. at __ (3), the mere addition of the word “office”

cannot be read in context and in light of Coggin to make offices within the General

Assembly subject to the Act. See Harrison Co., 244 Ga. at 328 (1).

Nor is the enactment of OCGA § 28-4-3.1, as the Institute argues, evidence of

the General Assembly’s intent to make the Open Records Act applicable to the

General Assembly. This statute provides, in whole:

Communications between the Office of Legislative Counsel and the
following persons shall be privileged and confidential: members of the
General Assembly, the Lieutenant Governor, and persons acting on
behalf of such public officers; and such communications, and records
and work product relating to such communications, shall not be subject
to inspection or disclosure under Article 4 of Chapter 18 of Title 50 or
any other law or under judicial process; provided, however, that this

7
 privilege shall not apply where it is waived by the affected public officer
or officers. The privilege established under this Code section is in
addition to any other constitutional, statutory, or common law privilege.

OCGA § 28-4-3.1.

First, this statute – which expressly states that it operates in addition to other

protections – applies to both records and communications that would not otherwise

fall within the Open Records Act. Second, the statute applies, inter alia, to

communications with the Lieutenant Governor, a member of the executive branch.4

Thus, the Institute’s assertion that this statute would be rendered “mere surplusage”

if the Office of Legislative Counsel were already exempt from the Open Records Act

is incorrect.

And finally, we note that the Institute’s reading of the Act would encompass

not only the many offices at issue here – the Office of the Clerk of the House of

Representatives, the Office of the Secretary of the Senate, the House Budget and

Research Office, the Senate Budget and Evaluation Office, the Senate Research

Office, and the Office of Legislative Counsel – but also a myriad of other offices and

4
See DeKalb County School District v. Ga. State Bd. of Education, 294 Ga.
349, 362 (1) (b) (ii) (751 SE2d 827) (2013) (noting Lieutenant Governor is an
executive officer).

8
departments under the General Assembly, including the offices of the individual

members, the Office of the Speaker of the House of Representatives, the Fiscal

Office, the Department of Human Resources, and the Information Technology Office.

Such an expansive reading would allow the exception to swallow the rule that the

General Assembly is not subject to the Act. Cf. Ga. Dept. of Natural Resources v.

Center for Sustainable Coast, Inc., 294 Ga. 593, 600 (2) (755 SE2d 184) (2014)

(warning against judicial creation of exceptions to sovereign immunity where the

exceptions would swallow the rule permitting only the General Assembly to do so).

Accordingly, we affirm the trial court’s dismissal of the complaint.

2. Based on our holding in Division 1, we need not reach the Institute’s

remaining enumeration of error.

Judgment affirmed. Goss, J., concurs fully and specially. McFadden, C.J.,

dissents.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2 (a).

9
 A19A0076. INSTITUTE FOR JUSTICE v. REILLY et al.

GOSS, Judge, concurring fully and specially.

I join fully in the majority opinion, but write separately to emphasize that

longstanding Georgia law requires us to affirm. First, the addition of the term “office”

to OCGA § 50-18-70 (b) (1), which defines the “agencies” to which the Open

Records Act applies, does nothing to vitiate the applicability here of Coggin v. Davey,

233 Ga. 407 (211 SE2d 708) (1975), which held that the Act’s predecessor “[was] not

applicable to the General Assembly.” Id. at 411 (II). Second, and as the Supreme

Court of Georgia emphasized in 1979, the General Assembly “is not subject to a law

unless named therein or the intent that it be included be clear and unmistakable.”

Harrison Co. v. Code Revision Comm’n., 244 Ga. 325, 328 (1) (260 SE2d 30) (1979).

If the General Assembly had wanted to include itself in the set of departments,

agencies, or offices subject to the Act, it could have done so expressly. Because it has

not done so, the trial court did not err when it dismissed this complaint.
A19A0076. INSTITUTE FOR JUSTICE v. REILLY et al.

MCFADDEN, Chief Judge, dissenting.

The question before us is whether “every state office” means every state office.

The majority holds that it does not. So I respectfully dissent.

The majority compounds its error by addressing a question not before us.

Appellant does not contend that the General Assembly itself is subject to the Open

Records Act, only its offices. Open Records Act imposes a duty to produce records

upon “agencies.” OCGA § 50-18-71 (b) (1) (A). “Agencies” is a defined term. The

Open Records Act incorporates the definition of “agency” set out in the Open

Meetings Act. OCGA § 50-18-70 (b) (1). Under that definition, “agency” means, in

pertinent part, “Every state department, agency, board, bureau, office, commission,

public corporation, and authority[.]” OCGA § 50-14-1 (a) (1) (A) (emphasis added).

So the question before us, stated more precisely, is whether “every state office”

includes legislative offices. I would hold the answer to be self evident. It does.

The majority finds a warrant to hold otherwise in two decisions handed down

by our Supreme Court in the 1970s, Harrison Co. v. Code Revision Commission, 244

Ga. 325 (260 SE2d 30) (1979) and Coggin v. Davey, 233 Ga. 407 (211 SE2d 708)

(1975).

3
 Harrison discussed a codified rule of statutory construction, which is now at

OCGA § 1-3-8. Under § 1-3-8, “The state is not bound by the passage of a law unless

it is named therein or unless the words of the law are so plain, clear, and unmistakable

as to leave no doubt as to the intention of the General Assembly.” Citing Coggin, to

which I’ll turn shortly, Harrison expanded on that statutory language and held: “By

the same token, the General Assembly, including its committees, commissions and

offices, is not subject to a law unless named therein or the intent that it be included

be clear and unmistakable.” Harrison, 244 Ga. at 328 (1).

I would hold that the words “every state office” are “clear and unmistakable”

on their face.

But if we need other guides to help us discern the meaning of those words, we

have them. In the Open Records Act itself the General Assembly directed that it be

broadly construed to allow access to government records.

The General Assembly finds and declares that the strong public policy
of this state is in favor of open government; that open government is
essential to a free, open, and democratic society; and that public access
to public records should be encouraged to foster confidence in
government and so that the public can evaluate the expenditure of public
funds and the efficient and proper functioning of its institutions. The
General Assembly further finds and declares that there is a strong
presumption that public records should be made available for public
inspection without delay. This article shall be broadly construed to

4
 allow the inspection of governmental records. The exceptions set forth
in this article, together with any other exception located elsewhere in the
Code, shall be interpreted narrowly to exclude only those portions of
records addressed by such exception.

OCGA § 50-18-70 (a) (emphasis added). “[C]ourts should always strive to give effect

to the purpose and intent of the legislature, and this is particularly true in the instant

case, where we have a specific admonition by the General Assembly to construe [the

Open Records Act broadly].” Schick v. Bd. of Regents of the Univ. Sys. of Ga., 334

Ga. App. 425, 434 (1) (779 SE2d 452) (2015) (citations and punctuation omitted).

The majority’s narrow reading of the Act to prohibit inspection of the records

requested from state offices “contravenes the legislative intent as expressed in the Act

that it should be construed in favor of, not against, disclosure.” Id. (footnote omitted).

More broadly, “When we consider the meaning of a statute, we must presume

that the General Assembly meant what it said and said what it meant. Thus if the

language of the statute is plain and unambiguous, we simply apply the statute as

written.” CPF Investments, LLLP v. Fulton Bd. of Assessors, 330 Ga. App. 744, 746

(769 SE2d 159) (2015) (citations and punctuation omitted). See also OCGA § 1-3-1

(b) (directing the application of ordinary signification to all words in statutes).

Moreover, as used in the Georgia Code, “defined words shall have the meanings

5
specified, unless the context in which the word or term is used clearly requires that

a different meaning be used.” OCGA § 1-3-2.

The majority also relies heavily on Coggin, supra. But the issue in that case

was “the applicability of Georgia’s ‘Sunshine Law’ to the General Assembly and its

committees.” Coggin, 233 Ga. 407. The Sunshine Law was the predecessor to the

statutes before us today, the Open Records Act and the Open Meetings Act. But the

issue before us today is the applicability of the current version of the Open Records

Act to legislative offices. And the statutory language extending that Act to every state

office was enacted in 2012, long after Coggin was handed down. See editor’s notes

on the 2012 amendment to OCGA § 50-14-1 (a) (1).

There is no language in the Open Records Act extending it to the General

Assembly itself. The majority would elide the distinction between legislative offices

and the General Assembly itself. But state offices do not compose the General

Assembly. See generally Ga. Const. of 1983, Art. III, Sec. I, Par. I & Art. III, Sec. II,

Pars. I-V & Art. III, Sec. VI, Par. I (General Assembly consists of the Senate and

House of Representatives, which are composed of their elected members, who have

the power to make all laws for the welfare of the state); OCGA § 28-1-1 (describing

membership of General Assembly). See also OCGA §§ 28-3-20 (Secretary of the

6
Senate and Clerk of the House of Representatives and their terms of office); 28-4-3

(creating Office of Legislative Counsel); 28-5-6 (authorizing establishment of Senate

Budget and Evaluation Office and House Budget and Research Office).

Also unsupportable is the majority’s invocation — in reliance on dicta in

Coggin — of the General Assembly’s rule making authority. “[T]he statement in the

[Coggin] majority opinion that either the House or the Senate can pass an internal

operating rule for its own procedures in conflict with a general law enacted by both

bodies and signed by the Governor . . . is dictum and not necessary to a decision in

this case.” Coggin, 233 Ga. at 411 (Ingram and Hall, JJ., concurring specially).

That the already clear and unmistakable meaning of “every state office”

encompasses legislative offices is rendered crystalline by OCGA § 28-4-3.1. Under

that provision communications between the Office of Legislative Counsel and

specified persons, including members of the General Assembly, “shall not be subject

to inspection or disclosure under Article 4 of Chapter 18 of Title 50 [the Open

Records Act] or any other law or under judicial process[.]” By construing the Open

Records Act to be inapplicable to legislative offices — including the Office of

Legislative Counsel — the majority reduces that statutory language to meaningless

surplusage. “As a fundamental principle of statutory construction, we endeavor to

7
give each part of the statute meaning and avoid constructions that make some

language mere surplusage or meaningless.” Schick, supra. at 432 (1). It is of no

consequence that the majority opinion leaves unaffected other portions of OCGA §

28-4-3.1.

There is, of course, no separation of powers problem when the General

Assembly legislates about itself or its offices. The General Assembly has the

authority decide whether to subject itself or its offices to the Open Records Act. The

clear and unmistakable language of the statutes before us does subject legislative

offices to the Act. So we should reverse.