by Jill Nolin, Georgia Recorder (This article originally appeared in the Georgia Recorder and has been republished with permission)
14 August 2024
A state Supreme Court’s decision to overturn a lower court’s ruling that a private contractor was exempt from the Georgia Open Records Act is being hailed as a victory for open government.
The court ruled unanimously on Tuesday that a private contractor working for a public entity remains subject to the law and can be allowed access to public records that may be in his possession.
At issue was whether a professor at the Georgia Institute of Technology, who also works for the university through his two companies, was subject to the law and whether he should be considered a custodian of the public records in his possession.
In 2022, a records request was made to the college and the private contractor by a man named Ryan Milliron. The man is seeking records about the contractor’s work on behalf of the college for the Defense Advanced Research Projects Agency, a federal agency that develops new technologies for the military.
The state’s highest court, which heard oral arguments in June, ruled Tuesday that the Fulton County Superior Court and the state Court of Appeals erred in ruling against the applicant for the records. The case will be remanded to the Fulton County Superior Court.
The court concluded in its ruling that “a request for public records relating to the services provided by a private contractor to a public agency may be served on non-agency custodians of the public records in question – including the private contractor if it is the custodian of the records requested – and that the Court of Appeals erred in reaching a different conclusion.”
Meredith C. Kincaid, an attorney with the Decatur-based law firm Cross Kincaid who represented Milliron, said her client was pleased with the verdict.
“The Supreme Court’s opinion reaffirms and thoughtfully clarifies important principles underlying the Open Records Act,” Kincaid said in a statement Tuesday.
“Government accountability is no less important when the government uses private contractors to do its work. We appreciate the Supreme Court’s attention to this case and look forward to continuing to pursue the public records at issue before the Court.”
The private contractor’s attorney, Manos Antonakakis, did not respond to an email seeking comment Tuesday afternoon.
The previous decision had alarmed supporters of open government.
The Georgia First Amendment Foundation, which advocated for Milliron, had argued that the previous ruling “would have a serious and adverse impact on the public’s ability to access public records in the state of Georgia,” the nonprofit advocacy group wrote in an amicus curiae brief filed in April.
The lower court’s ruling would have created a legal loophole for a contractor who is also a public employee and protected the public documents in his possession from disclosure, the foundation argued.
Sarah Brewerton-Palmer, an attorney for the foundation, called Tuesday’s statement a “welcome confirmation” of the state’s commitment to open access to public records.
“The court’s ruling allowing the public to request public records directly from government contractors is critical to protecting access to meaningful records in Georgia,” Brewerton-Palmer said in a statement.
“Government contractors are often the only ones who have copies of the records they create while doing their work. Forcing the public to contact a government agency to obtain those records would, in many cases, mean that the records would never actually be provided. To exercise meaningful oversight over government contractors, journalists and citizens must have the ability to inspect the public records in their possession, and the Georgia Supreme Court’s ruling ensures that they can.”
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