Dortch v. Atlanta Journal & Atlanta Constitution

405 S.E.2d 43, 261 Ga. 350, 19 Media L. Rep. (BNA) 1024, 1991 Ga. LEXIS 312

• Court: Supreme Court of Georgia
• Decided: June 21, 1991
• Docket: S91A0488
• Status: Published

Opinions

Fletcher, Justice.

Appellant Dortch is the Director of the Bureau of General Services for the City of Atlanta (the “city”). In May of 1990, pursuant to the Open Records Act, OCGA § 50-18-70 et seq. (the “act”), appellees, The Atlanta Journal and The Atlanta Constitution, requested that appellants provide them with all 1990 cellular telephone bills paid by the city.

Appellants provided the documents but deleted from them all telephone numbers called from city cellular telephones. Appellants also deleted the numbers assigned to city cellular telephones but did place the amount of the bill for each such telephone beside the name of the person who used it.

Appellees responded by filing suit under the act, seeking an injunction that would require appellants to provide unredacted documents. See OCGA § 50-18-73. Appellants offered no evidence at the hearing on the application for injunction but did argue that deletion of all numbers called from city cellular telephones was necessary in order to protect the privacy interests of persons who might have unlisted numbers.¹ Appellants also maintained that numbers assigned to city cellular telephones were deleted because it would become prohibitively expensive if members of the public were permitted to call city officials on such telephones. The trial court concluded that the documents were not exempt from the act for any of the reasons asserted and ordered appellants to provide appellees with unredacted documents.

1. Appellants argue that, absent an order consolidating the issues for trial, the trial court lacks authority to provide permanent relief following an interlocutory injunction. OCGA § 9-11-65 (a) (2). However, where there is notice of an interlocutory hearing, a trial court may reach a final determination of the issues if the parties do not object or have acquiesced.

The record here demonstrates that appellants had notice of the hearing and that, during the hearing, the trial court indicated that it intended to rule in favor of appellees. At the conclusion of the hearing, appellants’ attorney inquired whether the trial court was “making this a final decision.” The court responded that it was and appellants made no objection. Under these circumstances, we hold that appellants acquiesced in the court’s decision on the merits. Therefore the trial court did not err in granting permanent relief.

2. Appellants concede that the documents in question are subject to disclosure under the act. OCGA § 50-18-70 (a). However, appellants assert that the telephone numbers of persons called on city cellular telephones were properly expunged because some of the numbers might be unlisted and their disclosure would amount to an invasion of privacy.

Appellants argue that the documents in question fall within the exemption for records, “the disclosure of which would be an invasion of personal privacy.” OCGA § 50-18-72 (a) (2). We have held that the invasion of personal privacy encompassed by such exception is to be determined by an examination of the tort of invasion of privacy. Athens Observer v. Anderson, 245 Ga. 63 (263 SE2d 128) (1980). However, the exemption is not meant to exclude “legitimate inquiry into the operation of a government institution and those employed by it.” Id. at 66; Harris v. Cox Enterprises, 256 Ga. 299, 301-302 (348 SE2d 448) (1986).

The tort of invasion of privacy protects, inter alia, the right to be free from unwarranted publicity as well as from the “ ‘ “publicizing of one’s private affairs with which the public has no legitimate concern.” ’ ” Napper v. Ga. Television Co., 257 Ga. 156, 160 (356 SE2d 640) (1987). There are at least three elements necessary to recovery for an invasion of one’s right of privacy:

(a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.” Cabaniss v. Hipsley, 114 Ga. App. [367, 372 (151 SE2d 496) (1966)]; Napper, supra at 160-161.

Even if we were to hold that publication of unlisted telephone numbers² involved disclosure of secret or private facts, we cannot say, in the circumstances presented here, that such disclosure would be so offensive or objectionable to a reasonable man as to constitute the tort of invasion of privacy. Therefore, we affirm the trial court’s holding that the records in question are not exempt from disclosure under OCGA § 50-18-72 (a) (2).

3. Appellants argue that they should not be required to make public the numbers assigned to city cellular telephones because “it would be impossible to control the magnitude of incoming calls,” and this could result in increased telephone bills. While we understand the potential financial problems that disclosure of the cellular telephone numbers could create, there is presently no exemption for such records under the act. Any such remedy must come from the General Assembly.

4. In their appeal to this court, appellants argue for the first time that there is a likelihood that some of the numbers sought may be exempt from disclosure under OCGA § 50-18-72 (a) (3). Appellants maintain that they did not raise this issue at the hearing on the interlocutory injunction because they did not anticipate that the trial court would enter a final order following the hearing. However, issues not raised in the trial court will not be considered for the first time on appeal. Vickers v. Coffee County, 255 Ga. 659 (340 SE2d 585) (1986); Cohran v. Carlin, 254 Ga. 580 (1) (a) (331 SE2d 523) (1985).

Judgment affirmed.

All the Justices concur, except Smith, P. J., and Benham, J., who dissent.

1 The city stated that it had attempted to determine which of the numbers called from city cellular telephones were unlisted. However, the city was informed by Southern Bell that it would not provide such information absent consent of the person to whom each unlisted number was assigned.

2 We reiterate that there has been no showing that any of the deleted telephone numbers in this case are unlisted.