Local Government Law

• Jurisdiction: Georgia,United States
• Publication year: 2016
• Citation: Vol. 68 No. 1

Local Government Law

Ken E. Jarrard

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Local Government Law

by Ken E. Jarrard^*

I. Ante Litem Notice

During the Survey period,¹ the Georgia Court of Appeals again considered the essentials of a sufficient ante litem notice, and it emphasized the importance of substance over form. In City of Greensboro v. Rowland,²property owners brought action against the City for inverse condemnation, trespass, intentional tort, and nuisance arising out of the City's construction and maintenance of a drainage project. The City moved to dismiss, arguing, among other things, that property owners failed to provide the City with adequate ante litem notice.³ It is well settled that only "substantial compliance"⁴ with the ante litem requirement is necessary, as long as the information provided affords the City "notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury."⁵ As such, because the property owners in Rowland had previously issued to the City two letters setting forth their complaints, the court held that sufficient information had been provided to "substantially comply" with the ante litem statute.⁶ The property owners

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had placed the City "on notice of the general character of the complaint" and "in a general way, of the time, place, and extent of the injury."⁷

Compare Mayor & City Council of City of Richmond Hill v. Maia,⁸ in which the court of appeals held that a mother's ante litem notice to the City following her daughter's suicide was insufficient to place the City on notice of any of the claims brought on behalf of her daughter's estate, even though the notice specifically identified itself as "the requisite pre-suit ante litem notice."⁹ In Maia, the plaintiff's daughter attempted suicide and, during the related police investigation, City police officers photographed the daughter's injuries.¹⁰ Following an officer's reported release of those photographs, the daughter committed suicide.¹¹ The plaintiff, individually and as administratrix of her daughter's estate, brought an action against the City for wrongful death, intentional infliction of emotional distress, invasion of privacy, and pain and suffering.¹² The City did not dispute ante litem notice as to the plaintiff's wrongful death claim brought by the surviving parent, but it argued that the ante litem notice was deficient for all claims brought on behalf of the daughter's estate because it failed to reference the daughter's estate or identify the mother as administratrix.¹³ The court agreed and held that the ante litem failed to present the City with sufficient information to "determine whether any such claim [on behalf of the daughter's estate] should be settled without litigation."¹⁴

The court further held that substantial compliance with the ante litem statute¹⁵ requires notice that "must contain sufficient information so that the City can investigate the injuries alleged and determine if the claim should be settled without litigation."¹⁶ Even though the plaintiff's notice specifically stated "it was the requisite pre-suit ante litem notice of the claim for damages pertaining to the death" of her daughter, it failed to reference any claims on behalf of the daughter's estate or even identify the plaintiff as the administratrix of the daughter's estate.¹⁷

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II. Open Records Act

In Smith v. Northside Hospital, Inc.,¹⁸ the Georgia Court of Appeals considered whether a private nonprofit's records were subject to disclosure under the Open Records Act (ORA).¹⁹ The Fulton County Hospital Authority (FCHA), a public authority, created Northside Hospital, Inc. (Northside), a private, nonprofit corporation, and executed a lease transferring all of its operating assets and existing operations to the nonprofit. The nonprofit entered into transactions to acquire four privately owned physician groups. An ORA request was submitted to Northside and to FCHA for statements and documents relating to the acquisitions. The FCHA responded that it had no such records. Northside asserted that as a private, nonprofit hospital, it was not subject to the ORA. The requester filed a complaint seeking an order compelling compliance with the ORA and claiming that all of Northside's records are public records, because it was created by the FCHA as a vehicle to act on the FCHA's behalf.²⁰

The Georgia Court of Appeals held that the private nonprofit's records were not automatically public documents simply because the nonprofit was leasing from a public authority.²¹ Instead, the requester would have to show that the requested documents were prepared and maintained or received by the nonprofit in the performance of a specific service or function on behalf of the FCHA.²² The court noted that "simply performing some task or function that has an indirect public benefit, or which aids the public as a whole, does not transform a private entity's records into public records."²³ Given that the requester did not produce evidence that the records sought were related to the business of the FCHA and therefore related to public business, the court held that the records sought were not subject to the ORA.²⁴

In Schick v. Board of Regents of the University Systems of Georgia,²⁵the Board of Regents (Regents) withheld certain documentation otherwise responsive to an ORA request, claiming that it was exempt from disclosure under Official Code of Georgia Annotated ( O.C.G.A.) section 50-18-72(a)(4),²⁶ because such records related to Regents' work in cooper-

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ation with a law enforcement agency during a pending criminal investigation. The requester claimed that Regents' failure to disclose was improper and that Regents' late submission of responsive documents entitled the requester to attorneys' fees.²⁷

O.C.G.A. § 50-18-72(a)(4) exempts "[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity . . . ,"²⁸ Further, O.C.G.A. § 50-18-72(a)(3)²⁹ exempts "records compiled for law enforcement or prosecution purposes."³⁰ Noting the distinction between these exemptions, the Georgia Court of Appeals determined that Regents was not a law enforcement agency authorized to withhold documents under O.C.G.A. § 50-18-72(a)(4), even though such documents related to Regents' work in cooperation with law enforcement in a criminal investigation.³¹ The court of appeals noted that the expansive reading of the relevant exemption in the statute was "directly contrary" to the statutory directive that exemptions be narrowly construed in favor of disclosure.³²

Evans v. Georgia Bureau of Investigation³³ involves an ORA request submitted to the Georgia Bureau of Investigation (GBI) and emphasizes the deference the judiciary affords law enforcement agencies. After the GBI withdrew two arrest warrants that had been pending against Evans, Evans submitted an ORA request to the GBI for materials from its investigative file that pertained to him. The GBI refused to produce, citing an exemption in the ORA for pending investigations.³⁴

O.C.G.A. § 50-18-72(a)(4) exempts from disclosure "[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity . . . ."³⁵ The trial court found that the requester was not entitled to the documents because, although the warrants against Evans had been dismissed, warrants against two other individuals—arrested as part of the same investigation and the investigations of whom were maintained in the same file as the investigation into the requester—had not been dismissed and remained pending.³⁶

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The Georgia Supreme Court distinguished between a "pending prosecution" and a "pending investigation," noting that a pending investigation can go on for much longer, until a decision is made on whether to pursue prosecution.³⁷ The court also noted that the exemption for a pending law enforcement investigation does not apply to specific information contained in law enforcement and prosecution records.³⁸ Instead, the "subsection . . . exempts from disclosure the entirety of such records to the extent that they are part of a 'pending investigation or prosecution' and cannot be otherwise characterized as the initial arrest . . . or incident report."³⁹ Here, where the requested records were part of a pending investigation, the entire record was exempt, not just those portions relating to individuals still under investigation.⁴⁰

In Chua v. Johnson,⁴¹ a requester sought a copy of a record from the District Attorney for the Brunswick Judicial Circuit. The record related to the District Attorney's Office's criminal prosecution of the requester and was a memorandum prepared by an attorney relating primarily to prospective jurors' relationships to the then county sheriff. The District Attorney's Office refused to provide the document, claiming that it was attorney work product without citing the specific statutory subsection upon which such exception to production was based. The requester claimed that the failure to respond with an appropriate statutory citation entitled the requester to the documents.⁴²

The court of appeals determined that the District Attorney's failure to cite to the relevant exemption did not automatically entitle the requester to the requested document.⁴³ Instead, an evidentiary hearing should have been held to determine whether the document was subject to disclosure, and the trial court erred in not holding such a hearing.⁴⁴ This case raises a viable question as to the actual enforceability of the requirement that the statutory basis for withholding documents be identified with precision, as a mere hearing to determine applicability of an exemption has always been a possible remedy, even when the statutory provision for withholding documents had been provided.

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III. Open Meetings Act

In Gravitt v. Olens,⁴⁵ the Georgia Court of...