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Official Opinion 95-31

Official Opinion 95-31

June 21, 1995
To: 

Executive Director
Georgia Council for the Arts

Re: 

Certified financial statements, financial audits and summary statements of nonprofit contractors who seek to contract with and obtain reimbursement through the Office of Planning and Budget based upon the recommendation of the Georgia Council for the Arts must be made available for public inspection.

You have asked whether certain salary and expense information of nonprofit contractors who receive support "grants" based upon recommendation of the Georgia Council for the Arts is available to the public. If so, you have further asked whether the information can be reviewed by advisory panels of peers appointed by the Council, as part of the process of review and recommendation concerning arts funding requests through the Office of Planning and Budget. O.C.G.A. § 50-12-25. It is my understanding that the "grants" in question are actually requests for reimbursement pursuant to contracts for services between the OPB and the organization from appropriated "arts grants" funds.

Pursuant to O.C.G.A. § 50-20-3, nonprofit entities which contract with or receive public funds from a state agency are required to furnish to the agency, before an agency enters into a contract with the entity, a certified financial statement, including an individual listing of each employee, salary and reimbursable expenses, among other items. O.C.G.A. § 50-20-3(a)(1). A "nonprofit contractor" is one who receives a total of more than $5,000.00 from all state agencies combined. O.C.G.A. § 50-20-2(1). A nonprofit contractor who receives less than $25,000.00 in contracts or grants in any year is not required to submit a certified audit, "but shall submit a financial summary and statement with such information as required by the agency administering such contract or grant." O.C.G.A. § 50-20-3(e).

Code Section 50-20-6 specifically provides that the required certified financial statements, financial audits and summary statements are public records and are to be made available for public inspection. This is consistent with both the legislative declaration that the state has a right and duty to monitor nonprofit contractors to insure that their activities are in the public interest and to insure that public funds are used for proper purposes, and the legislative finding that there is a need for a law to insure the financial accountability of nonprofit contractors and "to develop adequate information about nonprofit contractors." O.C.G.A. § 50-20-1.

A similar result would be reached under the Georgia Open Records Act. The definition of "public record" in the Georgia Open Records Act includes all documents, papers, letters, 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). All public records of an agency, except those which by order of a court or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of the state. O.C.G.A. § 50-18-70(b). There does not appear to be an applicable exception which would exempt the salary and expense information required by O.C.G.A. § 50-20-3 from disclosure to third persons. Since these records are available for inspection by the public, I know of no reason why they should not be made available for inspection by members of the advisory panels which review applications for grants and make recommendations to the Council and the Office of Planning and Budget.

Because I have been informed that the Council requests the financial data as part of the application process for a "grant," it is recommended that the application contain a statement that the required financial statements, audits and summary statements are public records. O.C.G.A. §§ 50-20-6, 50-18-70. That way, the nonprofit contractor will be made aware of the fact that by submitting the application, the applicant has accepted the conditions imposed by law, including public disclosure of the information. 1965-66 Op. Att'y Gen. 66-88 (in accepting employment by the state, state employees accepted the conditions making salary information public).

Therefore, based on the foregoing, it is my official opinion that certified financial statements, financial audits and summary statements of nonprofit contractors who seek to contract with and obtain reimbursement through the Office of Planning and Budget based upon the recommendation of the Georgia Council for the Arts must be made available for public inspection.

Prepared by:

RAY O. LERER
Senior Assistant Attorney General