1 georgia open records laws. 2 the statutes that are relevant a. ocga-50-18-70 - defines open...

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Georgia Open records Laws

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The statutes that are relevant

• a. OCGA-50-18-70 - Defines open records

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• b. OCGA-50-18-71 – Dictates fee structure

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• c. OCGA-50-18-72 – Identifies exemptions

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• c. OCGA-50-18-72 – Identifies exemptions

• d. OCGA-50-29-2 - Identifies GIS data as a different class of open record

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• a. OCGA-50-18-70 - Defines open records• b. OCGA-50-18-71 – Dictates fee structure• c. OCGA-50-18-72 – Identifies exemptions• d. OCGA-50-29-2 - Identifies GIS data as

a different class of open record• e. OCGA-50-18-73 – Details the

procedures the requestor should follow if access to public information is denied

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The statutes that are relevant• a. OCGA-50-18-70 - Defines open records• b. OCGA-50-18-71 – Dictates fee structure• c. OCGA-50-18-72 – Identifies exemptions• d. OCGA-50-29-2 - Identifies GIS data as a

different class of open record• e. OCGA-50-18-73 – Details the procedures the

requestor should follow if access to public information is denied

• f. OCGA-50-18-74 – Details what happens to the person that denies a request unlawfully

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Georgia is a permissive state

• This means that that all records defined in OCGA 50-18-70 are to be made available to the public unless they are specifically exempted by another law. Unless you can find a statute that says a certain record is exempt from open record request, you should assume it’s not.

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What are “Public Records”???

• the term "public record" shall mean all

documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency.

What are “Public Records”???

• The same/similar definition as found in the Ga. Records Act which pertains to record storage and retention.

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Examples of paper records that are freely shared with the general

public

• a. Property record cards• b. Minutes from meetings• c. Policy and procedure manuals• d. Valuation schedules• e. Paper maps

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Electronic documents that are freely shared with the public

• a. CAMA files

• b. Minutes from meetings

• c. Policy and procedure manuals

• d. Valuation schedules

• e. GIS data (with important differences)

• F. emails/correspondence, telephone bills, purchase requests and travel reimbursements

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Common misconceptions

• digital data files

• They are no different in the eyes of the law from paper property records, maps or any other type of paper document.

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• Work in progress• Future year digest, current year digest

that have not been finalized, Ect.• These are still public records. the user

should beware and use the data at their own risk. The courteous thing to do would be to inform them of the incomplete status of the data.

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• Data held by a vendor• If a vendor has in their possession

any data that is paid for with taxpayer dollars, that data is subject to the open record laws the same as if it were held by the county itself. Clayton County Hospital Authority v. Webb, 206 Ga. App. 693 (1993) (Andrews, J.):

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GIS data

GIS data produced by or for a county is public record. As we will discuss later, you can charge a fee for GIS data but it is still public record and can not be withheld.

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• Verbal request• A verbal request is every bit as valid

as a written request. You can not ignore a verbal request nor can you require request to be in writing even if you consider that part of your policy. Howard v. Sumter Free Press, Inc., 272 Ga. 521 (2000)

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Internet access

The positive aspects of providing access to records via the internet generally outweigh the cost but this service is not required and it does not negate the responsibility to respond to open records request.

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Fee structure

• In OCGA- 50-18-71, the permissible fees for providing data to the public are outlined. The bullet points in this section are.

• No charges can be imposed for the data itself.• Fees for copying, search or retrieval are based

on the rate of pay of the lowest paid employee that is capable of performing said services. But the first 15 minutes are free.

• You can charge for the media that holds the data (blank CDs, printing cost, Etc.)

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• Sue works in the Assessor’s office. His rate of pay is $15.00 pr hour.

• Joe also works in the Assessor’s office. His rate of pay is $10.00 pr hour.

• An open records request is received for an electronic copy of some CAMA files to be burned on one blank CD that cost $1.00.

• Joe is capable of burning these files to the disc in 30 minutes but he is tied up for the next two weeks on an important project.

• Sue burns the disc and it takes him 30 minutes to do so.

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What is the charge

First 15 Min of labor $0.00

• Billable labor

• 15Min @ $10.00 pr Hr. $2.50

• Data $0.00

• CD- $1.00

• Total $3.50

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Explanation

• There was no charge for the first fifteen minutes of labor.

• Since it took Sue 30 minutes to burn the CD, there are 15 minutes of billable labor.

• Since Joe is the lowest paid employee that is capable of fulfilling the request, the fee is based on his rate of pay even though he was not the person that did the work.

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Explanation

• Joe’s rate of pay is $10.00 pr Hr. and there were 15 minutes of labor at this rate.

• $10 / 4 = $2.50

• There was no charge for the data.

• The blank CD cost $1.00

• Since there were no additional fees for postage, the total cost to the person making the request is $3.50

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Have a comprehensive policy in place

• custom reports; do you want to do them? How much do you charge? 50-18-70 No public officer or agency shall be required to prepare reports, summaries, or compilations not in existence at the time of the request.

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Examples

• A person makes a request for a list, including owner name and address, of all the parcels that have swimming pools. Joe, who makes $10.00 pr hour, is capable of producing this report but it currently does not exist. It will take him 15 minutes to produce the report and burn it on a blank CD that cost $1.00.

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Cost Recovery• There is no fee structure specified in the

open records statutes for producing this type of data. In fact, you can not be compelled to produce the report at all if it is not a report that you would produce as part of your normal work flow. If you choose to compile these reports, fees should be based on the cost to produce the report. If fees exceed costs they are an illegal tax.

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What is the charge

• 15Min @ $10.00 pr Hr. $2.50

• CD- $1.00

• Total $3.50

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3 DAYS!!!!!

• Three days to respond means just that, you must respond within 3 business days. It does not mean that you have to satisfy the request within this time frame. In this response, you must tell the person how long it will take to honor their request and what fees if any will be applicable.

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• Request must be honored in a “reasonable period of time” this period of time may vary depending on current work load, equipment or system limitations, or even something as simple as the person that has the skill to make copies of a file is on vacation.

• What you may not do is willfully delay providing data when it is requested with no legitimate reason.

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If the data requested is not public record

• The statute that supports your denial must be stated in writing by Code section, subsection and paragraph in the written response to a request where access to exempted records is denied. (Exempt records will be discussed later)

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• Decide which entities are exempt from fees. Examples are; state agencies, charitable organizations, federal agencies, other counties, vendors that are contracting with the county,

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Discussion

• State and federal agencies

• Other counties

• Cities

• Charitable institutions (to exempt some private organizations might be a gratuity)

• Vendors working for government agencies

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Have a fee structure in place

– you can’t charge for data (GIS not included)

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– you can’t charge for data– you can’t charge for first 15 min

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– you can’t charge for data– you can’t charge for first 15 min– you can charge for labor beyond the first 15

min

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– you can’t charge for data– you can’t charge for first 15 min– you can charge for labor beyond the first 15

min– you can charge for media

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And why is all this

important?!?!?

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– you can’t charge for data– you can’t charge for first 15 min– you can charge for labor beyond the first 15 min– you can charge for media

– You can’t charge for the time you spend figuring out how to respond or attorney fees you incur trying to get it all together!

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Exemptions

• general exemptions– personnel records– licensed data ( typically software applications)– The locations of archeological and historic

sites as well as locations of endangered plants and animals.

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Exemptions

– Personal property records– Names and addresses of judges, law

enforcement, teachers, District Attorneys (they must be redacted from your files and they can not be used as an excuse for not providing information) Partially true!

– Social Security numbers (redact) not an excuse for denying access.

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Exemptions

• Information related to an ongoing criminal investigation

• Clerk of Courts records– GSCCCA (The Georgia Superior

Clerks of Court Cooperative Authority) This organization was formed by legislative act and it sells access to deeds Etc. online via a subscription. The fees go to the Clerks of Court retirement fund.

Exemptions

• GORA does not apply government to government. This comes under the GTA Data Sharing Policy. GTA accesses and sells information from a variety of agencies as part of its mandate and one of its funding sources.

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SB-230

• In 2001, a bill was passed that created a new class of open record in Georgia.

• SB-230 enabled OCGA-50-29-2. This legislation allows cities counties and Regional Commissions to copyright and sell GIS data.

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Misconception

• Some counties have misunderstood this to mean that GIS data is not subject to open records request. Nothing could be further from the truth. The only difference is that a fee can be charged for this data and if so desired, the data can be copyrighted.

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Other government agencies

• Notably missing from the statute is an exemption from these fees for state, federal and other local government agencies…. Expect reactive legislation if this becomes an issue.

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Cost recovery

• OCGA-50-29-2 states; Any fees or license fees established pursuant to subsection (a) of this Code section shall be based upon the recovery of the actual development cost of creating or providing the geographic information system and upon the recovery of a reasonable portion of the costs associated with building and maintaining the geographic information system.

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Reasonable fees

• So, what is a reasonable fee?

• The courts will have to decide.

• So far, this portion of the law has not been tested.

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If your fee structure is not in place when a request is received, you will probably not be able to get a policy in place in time to meet the 3 day response deadline. In which case you could not charge for the data.

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What is typical?

• Most of the counties that have GIS data either charge nothing or they charge a token fee ($100 or less) for the data. A few charge exorbitant fees.

• There are few counties that fall between the two extremes.

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Why the disparity?

• The general consensus is that the benefits of allowing free exchange of data far exceed the small amount of money that can be generated.

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Why should I give it away?

• Regional real-estate developers and large companies routinely use this data for locating new businesses.

• This creates potential for economic growth.

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• Errors in data are identified by these users so another set of eyes helps you build better data.

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• Errors in data are identified by these users so another set of eyes helps you build better data.

• An attitude of open government is portrayed.

Other government agencies

• With the previously mentioned exceptions, GORA does not apply government to government. This comes under the GTA Data Sharing Policy. Also should be noted that GTA accesses and sells information from a variety of agencies as part of its mandate and one of its funding sources.

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GIS Clearinghouse

• The Georgia GIS Clearinghouse provides a free portal to counties for distributing GIS data. This service is provided at no cost to the county. A system is even in place to collect fees for this data if the county so desires.

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As a side note

• Charging a fee creates the perception that the county is obligated to provide some level of service along with the data. Usually commensurate to the amount of the fee.

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As a side note

• If GIS data is used to formulate assessments, how do request by taxpayers for data fit within the framework of the taxpayers bill of rights?

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As a side note

• Data that is licensed by but not owned by the county is not subject to open records request. There are several companies that use licensing as a means to finance the purchase of data (it’s not yours till you finish paying for it but in the meantime, you can use it).

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• Long term licensing is not a good idea. There have been horror stories where a county became dissatisfied with a vendor and elected to change to a new vendor only to find out they don’t own “their own” data.

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Who are they gonna call?

• 50-18-73. (a) The superior courts of this state shall have jurisdiction in law and in equity to entertain actions against persons or agencies having custody of records open to the public under this article to enforce compliance with the provisions of this article. Such actions may be brought by any person, firm, corporation, or other entity. In addition, the Attorney General shall have authority to bring such actions, either civil or criminal, in his or her discretion as may be appropriate to enforce compliance with this article.

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So what happens if I say no?

• 50-18-74. (a) Any person knowingly and willfully violating the provisions of this article by failing or refusing to provide access to records not subject to exemption from this article or by failing or refusing to provide access to such records within the time limits set forth in this article shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $100.00.

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In addition

• If the claim is found to be legitimate, the damaged party can also be awarded attorney fees and or civil damages.

1 georgia open records laws. 2 the statutes that are relevant a. ocga-50-18-70 - defines open...

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