The Georgia Supreme Court ruled unanimously this week that private contractors working for public entities now have access to documents.
The decision followed a case in which an individual sought to request records relating to a professor at the Georgia Institute of Technology.
Ryan Milliron filed an Open Records Act request with Manos Antonakakis, a professor at Georgia Tech, seeking records related to Antonakakis’ work with Georgia Tech as a private contractor. The request was sent to Antonakakis and Georgia Tech as a public entity. Antonakakis did not respond to the request, although Georgia Tech provided limited records. Milliron sued Antonakakis for his lack of response because Milliron believed that Antonakakis, who worked as a private contractor, had additional records related to his request. Specifically, Milliron claimed that Antonakakis’ companies, which were formed as pass-through generators to obtain DARPA funding for Georgia Tech, had the documents he sought.
Milliron’s lawsuit was dismissed in the trial court in November 2022. The court ruled that public entities are required to create public records under the Georgia Open Records Act, but individual employees and contractors are not. The same trial court also found that Milliron improperly submitted his request to Antonakakis because Georgia Tech had its own Open Records Officer to handle requests.
Antonakakis argued in particular:
- (it was not an “agency” required to produce records under the Open Records Act;
- Although agency employees may individually possess public records, they are not required to personally respond to public records requests;
- Agencies are the only parties authorized to create public records, even if a private individual is in possession of such records.
- Milliron’s complaint was moot because he had also made the same public records request to Georgia Tech – the “appropriate state agency” – and Georgia Tech “communicated and cooperated” with Antonakakis to “identify, collect, and provide relevant records” as required by the Open Records Act; and
- Milliron did not allege that Georgia Tech “improperly redacted or omitted documents from this production.”
Milliron appealed and the Georgia State Court of Appeals affirmed the decision, siding with Antonakakis and Georgia Tech.
This week, however, the Georgia Supreme Court overturned that ruling. In a unanimous decision, the justices concluded that the Open Records Act applies to records kept by private contractors providing services to public entities, which is outlined in the Georgia Open Records Act itself.
From the judgment:
“As the plain language of the Act makes clear, records created or maintained by a private contractor “in the performance of a service or function for or on behalf of an agency” are “public records” for purposes of the Act, and this applies even if the private contractor works separately as an employee of an agency. OCGA § 50-18-70(b)(2)”
The judges also wrote:
“(A)s we have often said, in interpreting statutory language, we do not read words in isolation, but rather in the … context of the (law) as a whole … In enacting the Open Records Act, the General Assembly declared that the strong public policy of this State favors open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to enhance confidence in government and to enable the public to evaluate the use of public funds and the efficient and orderly functioning of its institutions.”
The General Assembly further stated that “there is a strong presumption that public records should be made available for public inspection without delay” and that “this article should be broadly interpreted to permit inspection of government records.”
The court also ruled that requests for records can be directed to the person who keeps the records, even if that person is a private contractor and even if the agency has a designated records officer.
The court overturned the decision of the Court of Appeal and remanded the case for further proceedings to determine which documents Antonakakis is entitled to have and whether they are public documents within the meaning of the law.
