Board of Regents of the University System of Georgia v. Atlanta Journal & Atlanta Constitution

378 S.E.2d 305, 259 Ga. 214, 17 Media L. Rep. (BNA) 1670, 1989 Ga. LEXIS 184

• Court: Supreme Court of Georgia
• Decided: April 25, 1989
• Docket: 46821
• Status: Published

Opinions

Weltner, Justice.

Pursuant to the Open Records Act, OCGA § 50-18-70 et seq., two newspapers made the following request of the Board of Regents and its chancellor:

We request records on all candidates considered or currently in contention for the presidency of Georgia State University. We request complete records, including resumes, letters of recommendation, vitae, and all other information the presidential search committee has compiled on each of the candidates.

When the Board of Regents denied the request, the newspapers brought an action against them to require production of the documents. The trial court ordered that the Board of Regents produce the following documents:

[R]ecords pertaining to the candidates of the Georgia State University presidential search which have been requested by the [newspapers] except the following:

1. Evaluations of the candidates which have been prepared by the Board members or their staff; and,

2. Confidential evaluations of the candidates by third-parties, such as letters of recommendations.

The Board of Regents appealed.

Applicability of the Act

1. (a) The Open Records Act encompasses: “All state, county, and municipal records. . . .” (See Div. 2 (a), below.) The Board of Regents now exists by virtue of the Constitution of Georgia and acts of the General Assembly. It is an agency of the state.¹ The Board of Regents is subject to the Act.

(b) The Act further provides:

As used in this article, the term “public record” shall mean all documents, papers, letters, maps, books, tapes, photographs, or similar material prepared and maintained or received in the course of the operation of a public office or agency. [OCGA § 50-18-70 (a).]

The records sought are public records.

Statutory Requirements

2. (a) The Act requires:

All state, county, and municipal records, except those which by order of a court of this state 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 this state at a reasonable time and place; and those in chárge of such records shall not refuse this privilege to any citizen. [OCGA § 50-18-70 (b).]

(b) Among records exempt from these requirements are:

Records that consist of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee. [OCGA § 50-18-72 (a) (5).]

(c) Appended to the section creating exemptions is this provision:

This Code section shall be interpreted narrowly so as to exclude from disclosure only that portion of a public record to which an exclusion is directly applicable. It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying. [OCGA § 50-18-72 (f).]

Scope of the Exemption

3. (a) The question remains as to whether the records requested by the newspapers are:

. . . confidential evaluations submitted to. . .a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee. [Div. 2 (b), above.]

(b) The Act directs a narrow construction of its exclusions, ex- • empting “only that portion of a public record to which an exclusion is directly applicable.” (Div. 2 (c), above. Emphasis supplied.) As example, the applications submitted by candidates for the position of president, and the resumes and vitae requested by the newspapers, are products of the applicants themselves. They are materials upon which, in part, “confidential evaluations” are based.

They are not evaluations,² hence they are not exempt.

The Public Interest

4. The Board of Regents maintains that the public interest requires that all records of its search committee, including those not exempt, be withheld from public scrutiny. It insists that its ability to attract qualified applicants will be diminished by the disclosure of their identities, in disservice of the cause of higher education. We acknowledge that this preference may be justifiable as a matter of good practice.³ Our inquiry, however, must be whether, as a matter of law, the nondisclosure of such records may be permitted.

(a) The first discussion by this court of the “public interest” (as distinct from statutory application) relative to Open Records laws is found in Houston v. Rutledge, 237 Ga. 764, 765, 766 (229 SE2d 624) (1976), in a case concerning records of criminal investigations that had been concluded. There we stated:

When a controversy of this nature arises between a citizen and a public official, the judiciary has the rather important duty of determining whether inspection or non-inspection of the public records is in the public interest. In short, the judiciary must balance the interest of the public in favor of inspection against the interest of the public in favor of non-inspection in deciding this issue. . . .

[In] our construction of this statute we have attempted to apply First Amendment principles which favor open, unfettered communication and disclosure except where some limitation thereon is required in the public interest.⁴

(b) In cases coming after Houston v. Rutledge, we have interpreted this “limitation . . . required in the public interest” as the necessity to protect against an unwarranted intrusion into an individual’s private life, where there is no legitimate right of the public to inquire into private matters that are unrelated to the public business.

The invasion of personal privacy encompassed as an exception to the right of the public to access is to be determined by an examination of the tort of invasion of privacy.

Harris v. Cox Enterprises, 256 Ga. 299, 301 (348 SE2d 448) (1986). See also Athens Observer v. Anderson, 245 Ga. 63, 65, 66 (263 SE2d 128) (1980):

The right of privacy, protectable in tort, however, extends only to unnecessary public scrutiny. ... We find nothing in the report which would give rise to an action for invasion of privacy.⁵

(c) In this appeal, there is no claim on behalf of any individual of an invasion of personal privacy.⁶ It is not a personal right to privacy that is urged upon us, but rather a corporate preference for privacy, which is considered to be desirable for the efficacious administration of a public function.

(d) In his concurring opinion, Presiding Justice Clarke aptly observes:

The public policy issue of what information or actions involved in a search for an official may be withheld from disclosure rests with the legislative branch.

The General Assembly has defined, directly and specifically, the extent of permissible secrecy as to the appointment of public officers or employees (Div. 2 (b), above). That is clearly within its prerogative.

(e) The “limitation . . . required in the public interest” of Houston v. Rutledge never has been interpreted to authorize courts to impose their own preferences upon the operation of the executive branch. There being here no competing interest to measure against the demand of the Act, we have nothing to balance.

Conclusion

5. The trial court correctly designated those records that are exempt by the Act, and correctly required production of the remaining documents.

Judgment affirmed.

All the Justices concur, except Marshall, C. J., Smith and Bell, JJ., who dissent.

1 The Constitution of Georgia of 1983 specifies: “There shall be a Board of Regents of the University System of Georgia. . . .” Art. VIII, Sec. IV, Par. I (a). OCGA § 20-3-20 (a) provides: “The board of regents is created.” See OCGA § 20-3-80, referring to the “board of regents, a state agency.” See also Macon Telegraph Publishing Co. v. Bd. of Regents of the University System of Ga., 256 Ga. 443 (350 SE2d 23) (1986).

2 See Webster’s Third New International Dictionary: “Evaluate-, to examine and judge concerning the worth, quality, significance, amount, degree, or condition of.”

3 See Presiding Justice Clarke’s concurring opinion, below.

4 Houston v. Rutledge is silent as to the origins and lineaments of this “limitation . . . required in the public interest.” Note, however, Justice Ingram’s concurring opinion:

Therefore, unless the sheriff [i.e., the custodian of the records] on remand can show some persuasive reason why the files should not now be made available for public inspection, I believe we have a duty under the First Amendment to the United States Constitution and Code Ann. § 40-2701 [OCGA § 50-18-70] to require the files to be made available for public inspection without further delay.

Id. pp. 766-7.

5 Our more recent decision in Napper v. Ga. Television Co., 257 Ga. 156 (356 SE2d 640) (1987) relied upon both the Athens Observer and Harris cases:

“The tort of invasion of privacy protects “(t)he right of a person. . .to be free from unwarranted publicity, ... or the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern.”. .. “While this state has a strong policy of open government, there is a corresponding policy for protecting the right of the individual to personal privacy. References to matters about which the public has, in fact and in law, no legitimate concern, though found in a public document[,] are not subject to disclosure under the Public Records Act because they are not the subject of “legitimate public inquiry.”

Id. pp. 160, 161

6 In the circumstances before us, it would make for a strange rule, indeed, to hold that a person who applies for a public position — to serve the public and to be paid by the public — has the right to keep secret from the public the very existence of such an application.