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Unofficial Opinion 2010-2

Unofficial Opinion 2010-2

September 10, 2010
To: 

City Attorney

Re: 

O.C.G.A. § 35‑3‑37(d)(1) permits both the original arresting agency and the Georgia Crime Information Center to recover reasonable fees for the actual cost of expunging arrest records and accompanying documents up to $50.00 each.

You have asked whether the cost recovery provision of O.C.G.A. § 35‑3‑37 authorizes both arresting agencies and the Georgia Crime Information Center (“GCIC”) individually to charge separate fees, not to exceed $50.00 each, for expungement of arrest records or whether the total combined fee that can be charged is limited to $50.00.  See O.C.G.A. § 35‑3‑37(d)(1).  For the reasons set forth herein, it is my unofficial opinion that the cost recovery provisions of the statute allow the “original agency” and the GCIC each to charge a fee not to exceed $50.00.

In Georgia, an individual’s arrest record may be expunged if that person was arrested but the criminal case that arose from the arrest was not prosecuted for certain reasons.  See O.C.G.A. § 35‑3‑37(d).  An individual may request in writing that the “original agency” (the arresting agency) expunge the records of such arrest.    See O.C.G.A. § 35‑3‑37(d)(1).  The prosecuting attorney who is responsible for the prosecution of criminal cases within the arresting agency’s jurisdiction will review the request to determine if it meets the criteria for expungement.  See O.C.G.A. § 35‑3‑37(d)(3).  If it does meet the criteria, the prosecuting attorney will review the arrest record and accompanying material to determine if any material must be preserved to protect the accused constitutional rights.  See id. at (d)(2).  If the request is granted, not only are the records of the arrest expunged, but fingerprints and photographs of the individual taken in conjunction with the arrest are expunged as well.  See id. at (d)(3).

Georgia law further provides that “[r]easonable fees shall be charged by the original agency and the center for the actual costs of the purging of such records, provided that such fees shall not exceed $50.00.”  O.C.G.A § 35‑3‑37(d)(1).  In the past, the GCIC did not charge a fee for expungements; however, in a 2009 operations bulletin issued by the Georgia Bureau of Investigation local governments were notified that effective August 1, 2009, the GCIC would begin charging $25 for each expungement.

The General Assembly has clearly provided that both the original agency and the GCIC can charge a fee for the cost of expunging records; however, the language used by the General Assembly – “provided that such fees shall not exceed $50.00” – leaves less clear whether the $50.00 cap on the “fees” applies to each or to a cumulative total.

In the interpretation of statutes, the General Assembly has provided that the inquiry is into “the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”  O.C.G.A. § 1‑3‑1(a).  The intention of the General Assembly in O.C.G.A. § 35‑3‑37(d) is to authorize both the original arresting agency and the GCIC to recover their costs for expunging records.  Were the $50.00 limitation to be read as applying to the total amount to be recovered by both agencies, then one agency could frustrate that purpose by charging the entire amount, effectively preventing the other agency from recovering any of its costs.  Had the General Assembly intended to require the total amount of the fees for costs of expungements to be capped at $50.00, it could have done so by providing “that such [total] fees shall not exceed $50.00.”[1]

Therefore, it is my unofficial opinion that O.C.G.A. § 35‑3‑37(d)(1) permits both the original arresting agency and the Georgia Crime Information Center to recover reasonable fees for the actual cost of expunging arrest records and accompanying documents up to $50.00 each.

Prepared by:

Destiny S. Washington

Assistant Attorney General




[1] The General Assembly has accomplished this in numerous instances throughout the Code.  For example, there is established a product registration fee for commercial pet food of “$25.00 per product registered, provided that the total of all registration fees shall not exceed $1,000.00 per annum for any licensee.  O.C.G.A. § 2‑13‑6(d).  See also O.C.G.A. § 3‑11‑2(e) (“total of [alcohol beverage caterer’s]local license fees shall not exceed $5,000.00); O.C.G.A. § 31‑12‑7(d) (“in no event shall the total fees [for certain health screening] exceed $40.00 for the calendar year”).  (Emphases added.)