Georgia has a longstanding principle of transparency and sunshine into government operations and public records. When the General Assembly amended the Open Records Act in 2012, the legislature emphasized the “the strong public policy of this state is in favor of open government,” and that “open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government.” For that reason, “there is a strong presumption that public records should be made available for public inspection without delay” and that the state’s Open Records Act should “be broadly construed to allow the inspection of governmental records.” (O.C.G.A. § 50-18-70(a)).
The Georgia Supreme Court recently considered a case (Milliron v. Antonakakis) in which a person sent an Open Records Act request directly to a government contractor (who had a contract with a state agency, the Georgia Institute of Technology) seeking records related to the contractor’s work for the university. The questions before the Supreme Court were 1) whether the Open Records Act applies to records held by an individual employed by the state and who also performs services for the state agency as a private contractor when the requested records relate to the person’s services as a contractor for the agency; and 2) if so, if a requestor can send the request directly to the contractor rather than via the state agency.
In considering the first question about the applicability of the Open Records Act to government contractors regarding the contractor’s work for a public agency, the Supreme Court held that records “held by a private contractor related to his or her services for a public agency are subject to the Open Records Act.” The Court reasoned that “the plain language of the statute makes clear, records prepared or maintained by a private contractor ‘in the performance of a service or function for or on behalf of an agency’ are ‘public records’ under the Act, and this is so even if the private contractor separately works as an employee of an agency.” (citing to O.C.G.A. § 50-18-70 (b)).
The Supreme Court then considered whether a requestor could submit a request directly to the contractor or whether the request must be sent to the public agency’s designated open records officer. The Court held that the request could be sent directly to the contractor and not the public agency. The Court stated, “even when an agency has designated an open records officer to whom requests must be made for public records within the agency’s custody, an open records request can still be made to a custodian of public records outside the agency, like here to a private contractor working for an agency.”
The Supreme Court remanded the case to the trial court to consider whether, in light of the Supreme Court’s decision in the case, whether the records in the contractor’s possession were “public records” subject to the Open Records Act and whether the person “is a custodian of public records in this case in his capacity as a private contractor.”