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Unofficial Opinion 2005-1

Unofficial Opinion 2005-1

February 23, 2005
To: 

Senator, District 42

Re: 

Agencies covered by the Georgia Open Records Act may not by contract with a federal agency create an exception to the Act and make otherwise public documents in the hands of the agency confidential unless the contract provision is mandated by federal law or regulation.

You have asked my opinion whether the records of an agency as defined in the Georgia Open Records Act, O.C.G.A. §§ 50 18 70 through 77 (2002 and Supp. 2004) (hereinafter “the Act”), may be protected from disclosure by the agency through a confidentiality agreement with a federal agency. Your question is prompted by several constituent complaints arising from the Peachtree DeKalb Airport’s refusal to allow access to documents that otherwise would be subject to inspection because DeKalb County has executed a contract with a federal government agency that contains a clause prohibiting disclosure of those documents.

Because the contract is not before me to review, I will not comment on its legality or on the applicability of the Act to specific documents about which I lack information. I observe as a general matter, however, that the Act’s exception from disclosure of public records “specifically required by the federal government to be kept confidential” only applies to records required to kept confidential by federal statute or regulation.

The Act provides that “[a]ll public records of an agency as defined in subsection (a) of this Code section, 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, shall be open for a personal inspection . . . . See O.C.G.A. § 50 18 72(b).

The Act is broadly construed, consistent with its purposes, to favor the openness of public records; exceptions to the Act are narrowly construed. City of Atlanta v. Corey Entm't, Inc., 278 Ga. 474 (2004).

The Act provides that disclosure is not required for “records that are . . . [s]pecifically required by the federal government to be kept confidential.” O.C.G.A. § 50 18 72(a)(1). This exception is not only consistent with but mandated by the Supremacy Clause of the United States Constitution, which makes federal law supreme over state law. U.S. CONST. art. VI, cl. 2; see Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1265 66 (11th Cir. 2004) (discussing preemption of state law by federal law under the Supremacy Clause and that preemption can occur both by federal statute or regulation). It is entirely appropriate that the Act yield when it is in conflict with a requirement of federal law.

This office has previously concluded that an agency cannot avoid its obligations under the Act by entering into a contract by which it would shield documents from disclosure. 1989 Op. Att’y Gen. 89-32. A clause in a contract that purports to shield an agency’s documents from the Act, when nondisclosure was not otherwise mandated by statute or court order, violates public policy and is void. See id.; O.C.G.A. § 13 8 2 (contracts contravening public policy are void); see also Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 904 (1996) (invalid portion of a contract is severed from the remainder).

Georgia’s courts have addressed the scope of the “federal” exception in O.C.G.A. § 50 18 72(a)(1) in several cases. In Georgia Hospital Ass’n v. Ledbetter, 260 Ga. 477 (1990), the Supreme Court of Georgia expressly held that the federal exception applies “only to federal records required by federal law to be kept confidential . . . .” Id. at 478. There the court rejected an argument by the Department of Human Resources that records it received for licensing purposes of a hospital were not subject to disclosure since the records were generated under the mandate of federal law. See also Harris v. Cox Enterprises, Inc., 256 Ga. 299 (1986) (rejecting without discussion argument that records were not subject to disclosure under the Act because the federal government allegedly would not allow them to be disclosed). The Supreme Court’s ruling in Georgia Hospital Ass’n leaves no doubt that the federal exception only applies to confidentiality required by federal law, i.e., a federal statute or regulation. This ruling effectively harmonizes the exception with the constraints imposed on the Act by the Supremacy Clause.

The cases which have touched on this issue since the Supreme Court’s ruling in Georgia Hospital Ass’n have consistently found that records are open unless the nondisclosure is specifically required by federal law. See Cory Entm’t, 278 Ga. at 476 (claim that tax records were protected from disclosure under federal law rejected because federal law did not specifically protect the records in question); Red & Black Publ’g Co. v. Bd. of Regents., 262 Ga. 848 (1993) (school records not protected from disclosure under the Family Educational Rights and Privacy Act since court viewed the statute as a funding act rather than a direct prohibition of disclosure).

The specific contract provisions are not before me and I do not opine on whether the exception applies to the situation giving rise to your request; nevertheless, the law is well established that the federal exception only applies to confidentiality that is mandated by federal statute or regulation. Absent such a federal mandate, agencies subject to the Act cannot through contractual language provide an exception to the public’s right to examine an otherwise public record.

Therefore, it is my unofficial opinion that agencies covered by the Georgia Open Records Act may not by contract with a federal agency create an exception to the Act and make otherwise public documents in the hands of the agency confidential unless the contract provision is mandated by federal law or regulation.

Prepared by:

STEFAN RITTER
Senior Assistant Attorney General