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Unofficial Opinion 2000-4

Unofficial Opinion 2000-4

February 25, 2000
To: 

Representative
House District 163

Re: 

The billing and payment records of public employees and officials to a municipally owned and operated public utility system are subject to disclosure under the Georgia Open Records Act, barring the proper application of any exception. Additionally, any special treatment of those public officials by such utilities may need to be disclosed under the Ethics in Government Act and the failure to do so could subject the recipients to legal action.

You have asked whether the utility billing and payment records of public officers or employees in relation to a municipally owned and operated public utility system providing electrical, water and gas services, as well as a billing service for sewer charges, are subject to disclosure under the Georgia Open Records Act. It is my opinion that those billing and payment records are subject to disclosure under the Act, barring the proper application of any exception. Additionally you have asked whether any “special services” provided to an elected official or family member by the utility would be subject to campaign disclosure requirements. While that is a fact-specific question, it may very well be that such “special services” would need to be disclosed under the Ethics in Government Act and the failure to do so could subject the recipients to legal action.

Initially, it must be recognized that the Open Records Act (ORA) mandates that all public records of a government agency are open to inspection and copying at a reasonable time and place unless there is a court order or specific exception that provides otherwise. O.C.G.A. § 50-18-70(b). This mandate must be read broadly and any exception to public openness must be narrowly construed. O.C.G.A. § 50-18-72(g); Hardaway Co. v. Rives, 262 Ga. 631, 634 (1992); 1993 Op. Att’y Gen. 93-27.

In evaluating whether records are subject to disclosure under the ORA, “the first inquiry is whether the records are ‘public records.’” Napper v. Georgia Television Co., 257 Ga. 156, 160(a) (1987); accord Fincher v. State, 231 Ga. App. 49, 51 (1998). A “public record” is defined by statute to include:

[A]ll 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.

O.C.G.A. § 50-18-70(a). “Public record” also includes, “items received or maintained by a private person or entity on behalf of a public office or agency” and records that are “received or maintained by a private person, firm, corporation, or other private entity in the performance of a service or function for or on behalf of an agency, a public agency, or a public office.” Id.

A public office or agency means virtually every form of state, regional, county and municipal department, agency, board, bureau, commission, corporation, authority or office. O.C.G.A. § 50-18-70(a); O.C.G.A. § 50-14-1(a)(1). Nonprofit organizations receiving direct allocations of tax funds and certain types of professional organizations made up of counties and cities, which derive substantial portions of their general operating budgets from payments from political subdivisions, also fall within the scope of the ORA. Id. See also Northwest Ga. Health Sys., Inc. v. Times-Journal, Inc., 218 Ga. App. 336 (1995); Hackworth v. Board of Educ. for Atlanta, 214 Ga. App. 17 (1994).

Your request has not specified a particular county or city entity to which it is addressed. Rather, you have asked what is the application of the ORA generally to a “municipally owned and operated public utility system providing electrical, water, and gas services and providing a billing service for sewer charges.” Given your description of this entity and the above-cited provisions defining the entities covered by the ORA, it appears that the utility in question would fall within the scope of the Act. As such, every document or record that it maintains or receives in the course of its operation, as outlined in the definitions above, would fall within the definition of a “public record” and therefore would be subject to disclosure within the meaning of the Act. This would also include, then, the public utility’s billing and payment records.

Once it is established that the documents in question fall within the definition of a public record, “the second inquiry is whether they are protected from public disclosure” pursuant to a statutory exemption found either in the ORA itself or in another statute. Doe v. Board of Regents of the Univ. Sys. of Ga., 215 Ga. App. 684, 686 (1994) (citing Hardaway Co. v. Rives, 262 Ga. at 632). If there is no applicable statutory exception, then the question is whether they should be protected from public disclosure if there is a claim that it would invade individual privacy. Id.

Under the ORA, there is no specific statutory exception for the billing and payment records of a publicly owned and operated utility. O.C.G.A. § 50-18-72. Because there is no specific entity addressed in this inquiry, it is not possible to identify whether there might be any other statutory exception making these billing and payment records confidential. Any final conclusion regarding a particular entity would have to be deferred until this question is answered. However, for purposes of further analysis here, it is assumed that there is no other specific statutory exception.

The only remaining exception that might be applicable is whether the disclosure of the records would be an invasion of individual privacy. The records, of course, belong to the publicly owned and operated utility and not to the individual who is being billed. See, e.g., Van Nice v. State, 180 Ga. App. 112, 116(1) (1986); Kesler v. State, 249 Ga. 462, 469-70 (1982). As such, there is no specific authority that would per se exclude these billing records from public disclosure.

However, as noted above, the release of an otherwise public record could under some circumstances amount to an invasion of privacy. While there is a strong public policy of open government, there is also a corresponding policy for protecting the right of the individual to personal privacy. Bowers v. Shelton, 265 Ga. 247, 251 (1995); Harris v. Cox Enterprises, Inc., 256 Ga. 299, 302 (1986). Matters to which the public has, in fact and law, no legitimate concern, even if found in a public document, are not subject to disclosure because they are not the subject of “legitimate public inquiry.” Bowers, supra. This inquiry is controlled by whether the disclosure of the information in question would amount to the common law tort of invasion of privacy. Board of Regents of the Univ. Sys. of Ga. v. Atlanta Journal & Atlanta Constitution, 259 Ga. 214, 217 (1989); accord Harris v. Cox Enterprises, Inc., supra.

The tort of invasion of privacy protects the right of a person to be free from unwarranted publicity or the unwarranted appropriation or exploitation of one’s personality or the publicizing of one’s private affairs with which the public has no legitimate concern. Board of Regents, 259 Ga. at 217 n.5 (citing Napper v. Georgia Television Co., 257 Ga. at 160-61). See also Athens Observer, Inc. v. Anderson, 245 Ga. 63 (1980). There are three necessary elements to show an invasion of privacy - (1) the public disclosure of private facts; (2) the disclosed facts must be private, secluded or secret; and (3) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances. Napper, 257 Ga. at 160-61. It must place the person in a false light in the public’s eye. Id. See also 1997 Op. Att’y Gen. 97-20.

In determining whether there is an invasion of privacy through unwarranted publicity, a court must balance the interests of obtaining inspection of public documents with those interests favoring nondisclosure. Napper, 257 Ga. at 161. Some of the factors which may be considered include whether the information is unsubstantiated and based on hearsay, whether it does not relate or relates only incidentally to the subject matter of the public record and whether the events described are remote in time. Id. Information identifying individuals who were investigated but not charged with or prosecuted for a crime and information that is embarrassing to individuals who were not targets of an investigation is not subject to disclosure unless a court determines that exceptional interests militate in favor of disclosure. Napper, 257 Ga. at 170. See also 1985 Op. Att’y Gen. U85-44.

However, “where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one’s legal right of privacy.” Napper, 257 Ga. at 161; Athens Observer, Inc., 245 Ga. at 66 n.4. The right of privacy extends only to unnecessary public scrutiny and does not protect legitimate inquiry into the operation of a government institution and those employed by it. Athens Observer, Inc., 245 Ga. at 65-66. This is because:

[T]he public has an interest in learning “about the operation and functioning of a public agency . . . and the work-related conduct of public employees; [in gaining] information [to] evaluate the expenditure of public funds and the functioning of a public institution or agency; [in having] information openly available to them so that they can be confident in the operation of their government; and [in insuring] that both the activity of public employees suspected of wrongdoing and the conduct of those public employees who investigate the suspects is open to public scrutiny.”

Irvin v. Macon Telegraph Publ’g Co., 253 Ga. 43, 45(3) (1984); accord Fincher v. State, 231 Ga. App. at 53. Where there is an investigation concerning a public employee’s alleged improper activities in the workplace, the public has a legitimate interest in the conduct that outweighs the individual’s interest in nondisclosure. Irvin, supra; 1985 Op. Att’y Gen. U85-44.

Additionally, even if there is a legitimate privacy interest that could be asserted by public officers or employees in relation to their billing records, that privacy interest might very well be waived by the receipt of any special treatment or privileges that they received or by the fact that their account is in arrears. Doe v. Sears, 245 Ga. 83 (1980). Sears dealt with an open records request made to the Atlanta Housing Authority (AHA) to inspect the payment records of tenants in order to determine if the tenants had received any special favor or treatment in regard to rent delinquency, if those tenants had personal or political ties and connections with public officials and if there was a pattern of favoritism between some project management personnel and tenants. Sears, 245 Ga. at 83-84. After recognizing that the AHA and its records were subject to the ORA, the court found that any privacy interest the tenants might have in the rental payment records was waived by the extension of credit or special treatment provided to them. Id. at 86-88. By accepting the special treatment or extension of credit, a tenant impliedly consented “to reasonable and necessary disclosures of his arrearage and his financial condition.” Id. at 87.

The same principle is applicable to the questions you have presented. Like the billing and payment records of the AHA, the billing and payment records of a public utility should be subject to disclosure in order to determine if any public officer or employee had received any special favor or treatment in regard to his or her utility services. Such records should also be subject to disclosure to determine if there were any personal or political ties or connections between the customers and public officials or to determine if there is any pattern of favoritism between the public utility and its customers. The receipt of special treatment or the existence of such special circumstances by customers of the utility, including public employees or officials, should be deemed their implied consent to the release of the billing and payment records and a waiver of any privacy interest they might have.

If there is a concern that the records should not be disclosed for some legitimate reason, the publicly owned utility could provide notice to the person or persons involved that the documents were going to be released at a set time in the near future. If the individuals involved then wished to raise a claim of an invasion of privacy, those persons could then seek judicial intervention to prevent the disclosure. See Doe v. Board of Regents, 215 Ga. App. at 685.

You have also asked a hypothetical question based on the underlying premise that a publicly owned and operated utility might be providing some special benefits to public officers or employees, their friends or their family. In such a situation, you have asked whether such special benefits might be subject to campaign disclosure requirements on the part of the recipient elected officials. If such benefits were given for the purpose of bringing about the nomination or election of a person to an elected office, then the benefits would be an in-kind contribution to the official’s campaign committee. O.C.G.A. § 21-5-3(2). Such campaign contributions would have to be disclosed on campaign finance disclosure reports. O.C.G.A. § 21-5-34. The contributions would also be subject to the dollar limitations outlined in the Ethics in Government Act, O.C.G.A. § 21-5-41 et seq. The failure to abide by the requirements of the Ethics in Government Act could subject a person to either civil or criminal prosecution. O.C.G.A. § 21-5-6(b)(14); O.C.G.A. § 21-5-9.

Therefore, it is my opinion that the billing and payment records of public employees and officials to a municipally owned and operated public utility system are subject to disclosure under the Georgia Open Records Act, barring the proper application of any exception. Additionally, any special treatment of those public officials by such utilities may need to be disclosed under the Ethics in Government Act and the failure to do so could subject the recipients to legal action.

Prepared by:

DENNIS R. DUNN
Deputy Attorney General