FOURTH DIVISION ELLINGTON, P. J., BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
June 15, 2016
In the Court of Appeals of Georgia A16A0280. MEDIA GENERAL OPERATIONS, INC. v. ST. LAWRENCE et al.
MERCIER, Judge.
This appeal is from the trial court’s judgment declaring that the sheriff and
district attorney of Chatham County are not required to release to Media General
Operations, Inc. d/b/a WSAV-TV certain records under the Open Records Act,
because the records sought come within the “pending prosecution” exemption to
disclosure. We agree and affirm the trial court’s judgment.
On January 1, 2015, Matthew Ajibade was arrested and taken to the Chatham
County Detention Center. Ajibade died at the detention center on January 1, 2015 or
January 2, 2015, while he was in the custody of the Chatham County Sheriff’s Office
(“CCSO”). On January 2, 2015, CCSO personnel phoned the Georgia Bureau of
Investigation (GBI), requesting an investigation into Ajibade’s death; the GBI began
its investigation that day. That same date, the Internal Affairs Division of the CCSO
(“IAD”) began its own investigations into possible policy violations by CCSO
employees in connection with the death. In all, there were three IAD investigations
into Ajibade’s death. The IAD interviewed all persons involved in the incident, and
the CCSO planned to “review, again, the actions of other employees that may be on
the periphery of this to determine if we’re going to take additional disciplinary
action.” The IAD investigations revealed criminal activity, which activity the CCSO
referred to the district attorney for possible prosecution. In May 2015, after the GBI
and the IAD investigations had concluded, the CCSO fired nine sheriff’s deputies for
their roles in Ajibade’s death.
In June 2015, the district attorney presented a bill of indictment against two of
the fired deputies and a private employee who had worked as a nurse at the detention
center. The three individuals were indicted on charges that included involuntary
manslaughter, aggravated assault, cruelty to an inmate, falsifying records, and making
false statements to a GBI agent.
2 In about March and April 2015, Media General Operations, Inc. (“Media
General”) submitted to the CCSO requests pursuant to the Open Records Act (OCGA
§ 50-18-70 et seq.) for records pertaining to Ajibade, including video footage,
incident or arrest reports, and IAD investigation reports. In response, the CCSO
acknowledged that cameras it owned and operated had captured images of Ajibade
on the relevant dates, that the CCSO maintained and prepared the images as part of
its functions, and that it acted as custodian of the images. However, the CCSO refused
to provide the requested video footage, asserting that the footage was exempt under
OCGA § 50-18-72 (a) (4) because the footage was in the possession of the district
attorney for “use in an on-going criminal investigation.” The CCSO also refused to
release the IAD investigation reports, stating that those records were exempt under
the same statutory subsection (OCGA § 50-18-72 (a) (4)) because they had been
provided to the district attorney. (The CCSO did not produce initial incident or arrest
reports, stating that no such reports existed.) Media General renewed its request for
the video footage and IAD reports, asserting that the exemption at issue does not
apply to records in the possession of an agency that is the subject of the pending
investigation or prosecution (OCGA § 50-18-72 (a) (4), infra).
3 In May 2015, Al St. Lawrence, in his capacity as Sheriff of Chatham County,
and Meg Heap, in her capacity as District Attorney of Chatham County, filed the
underlying action for declaratory judgment against Media General,1 seeking a
declaration that the items requested were exempt from disclosure because they were
“part of an ongoing criminal investigation by the District Attorney’s Office.”2
In July 2015, the trial court entered judgment in favor of the CCSO and the
district attorney, finding that the records were exempt from release pursuant to OCGA
§ 50-18-72 (a) (4) because the prosecution was still pending. Media General appeals.
The material facts of this case are undisputed. Because the issue presented on
appeal is one of statutory construction, our review is de novo. See Hardaway Co. v.
Rives, 262 Ga. 631 (422 SE2d 854) (1992); Suarez v. Halbert, 246 Ga. App. 822, 824
(1) (543 SE2d 733) (2000).
Our analysis begins with the following principle:
1 The lawsuit named “WSAV, Inc.” as defendant. However, in the notice of appeal, appellant identifies itself as “Media General Operations, Inc. d/b/a WSAV- TV,” stating that it was “incorrectly sued in this action as ‘WSAV, Inc.’” 2 Members of Ajibade’s family intervened in the declaratory judgment action as defendants. They are not parties to this appeal.
4 Our General Assembly has expressly declared that “public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.” OCGA § 50-18-70 (a). To further this end, all public records are deemed subject to disclosure, “except those which by order of a court of this state or by law are specifically exempted from disclosure.” OCGA § 50-18-71 (a).
Schick v. Bd. of Regents of the Univ. Sys. of Ga., 334 Ga. App. 425, 429 (1) (779
SE2d 452) (2015); see Howard v. Sumter Free Press, 272 Ga. 521, 521-522 (1) (531
SE2d 698) (2000).
The exemption at issue is contained in OCGA § 50-18-72 (a) (4). That
subsection exempts from disclosure:
[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution[.] (Emphasis supplied.)
5 In this case, it is undisputed that the video footage and IAD investigation
reports are public records and that the records are in the possession of the CCSO
and/or, more recently, the district attorney. The sole issue on appeal is whether the
records are exempt from public disclosure under the “pending prosecution”
exemption set out in OCGA § 50-18-72
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FOURTH DIVISION ELLINGTON, P. J., BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
June 15, 2016
In the Court of Appeals of Georgia A16A0280. MEDIA GENERAL OPERATIONS, INC. v. ST. LAWRENCE et al.
MERCIER, Judge.
This appeal is from the trial court’s judgment declaring that the sheriff and
district attorney of Chatham County are not required to release to Media General
Operations, Inc. d/b/a WSAV-TV certain records under the Open Records Act,
because the records sought come within the “pending prosecution” exemption to
disclosure. We agree and affirm the trial court’s judgment.
On January 1, 2015, Matthew Ajibade was arrested and taken to the Chatham
County Detention Center. Ajibade died at the detention center on January 1, 2015 or
January 2, 2015, while he was in the custody of the Chatham County Sheriff’s Office
(“CCSO”). On January 2, 2015, CCSO personnel phoned the Georgia Bureau of
Investigation (GBI), requesting an investigation into Ajibade’s death; the GBI began
its investigation that day. That same date, the Internal Affairs Division of the CCSO
(“IAD”) began its own investigations into possible policy violations by CCSO
employees in connection with the death. In all, there were three IAD investigations
into Ajibade’s death. The IAD interviewed all persons involved in the incident, and
the CCSO planned to “review, again, the actions of other employees that may be on
the periphery of this to determine if we’re going to take additional disciplinary
action.” The IAD investigations revealed criminal activity, which activity the CCSO
referred to the district attorney for possible prosecution. In May 2015, after the GBI
and the IAD investigations had concluded, the CCSO fired nine sheriff’s deputies for
their roles in Ajibade’s death.
In June 2015, the district attorney presented a bill of indictment against two of
the fired deputies and a private employee who had worked as a nurse at the detention
center. The three individuals were indicted on charges that included involuntary
manslaughter, aggravated assault, cruelty to an inmate, falsifying records, and making
false statements to a GBI agent.
2 In about March and April 2015, Media General Operations, Inc. (“Media
General”) submitted to the CCSO requests pursuant to the Open Records Act (OCGA
§ 50-18-70 et seq.) for records pertaining to Ajibade, including video footage,
incident or arrest reports, and IAD investigation reports. In response, the CCSO
acknowledged that cameras it owned and operated had captured images of Ajibade
on the relevant dates, that the CCSO maintained and prepared the images as part of
its functions, and that it acted as custodian of the images. However, the CCSO refused
to provide the requested video footage, asserting that the footage was exempt under
OCGA § 50-18-72 (a) (4) because the footage was in the possession of the district
attorney for “use in an on-going criminal investigation.” The CCSO also refused to
release the IAD investigation reports, stating that those records were exempt under
the same statutory subsection (OCGA § 50-18-72 (a) (4)) because they had been
provided to the district attorney. (The CCSO did not produce initial incident or arrest
reports, stating that no such reports existed.) Media General renewed its request for
the video footage and IAD reports, asserting that the exemption at issue does not
apply to records in the possession of an agency that is the subject of the pending
investigation or prosecution (OCGA § 50-18-72 (a) (4), infra).
3 In May 2015, Al St. Lawrence, in his capacity as Sheriff of Chatham County,
and Meg Heap, in her capacity as District Attorney of Chatham County, filed the
underlying action for declaratory judgment against Media General,1 seeking a
declaration that the items requested were exempt from disclosure because they were
“part of an ongoing criminal investigation by the District Attorney’s Office.”2
In July 2015, the trial court entered judgment in favor of the CCSO and the
district attorney, finding that the records were exempt from release pursuant to OCGA
§ 50-18-72 (a) (4) because the prosecution was still pending. Media General appeals.
The material facts of this case are undisputed. Because the issue presented on
appeal is one of statutory construction, our review is de novo. See Hardaway Co. v.
Rives, 262 Ga. 631 (422 SE2d 854) (1992); Suarez v. Halbert, 246 Ga. App. 822, 824
(1) (543 SE2d 733) (2000).
Our analysis begins with the following principle:
1 The lawsuit named “WSAV, Inc.” as defendant. However, in the notice of appeal, appellant identifies itself as “Media General Operations, Inc. d/b/a WSAV- TV,” stating that it was “incorrectly sued in this action as ‘WSAV, Inc.’” 2 Members of Ajibade’s family intervened in the declaratory judgment action as defendants. They are not parties to this appeal.
4 Our General Assembly has expressly declared that “public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.” OCGA § 50-18-70 (a). To further this end, all public records are deemed subject to disclosure, “except those which by order of a court of this state or by law are specifically exempted from disclosure.” OCGA § 50-18-71 (a).
Schick v. Bd. of Regents of the Univ. Sys. of Ga., 334 Ga. App. 425, 429 (1) (779
SE2d 452) (2015); see Howard v. Sumter Free Press, 272 Ga. 521, 521-522 (1) (531
SE2d 698) (2000).
The exemption at issue is contained in OCGA § 50-18-72 (a) (4). That
subsection exempts from disclosure:
[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution[.] (Emphasis supplied.)
5 In this case, it is undisputed that the video footage and IAD investigation
reports are public records and that the records are in the possession of the CCSO
and/or, more recently, the district attorney. The sole issue on appeal is whether the
records are exempt from public disclosure under the “pending prosecution”
exemption set out in OCGA § 50-18-72 (a) (4). The CCSO and district attorney posit
that the records were initially exempt as part of “pending investigation[s]” of criminal
activity, and that later, when those investigations concluded and the matter was
referred to the district attorney’s office for prosecution, the records were exempt
pursuant to the “pending prosecution” exemption. See OCGA § 50-18-72 (a) (4)
(public disclosure not required of records of law enforcement/prosecution in any
pending investigation or prosecution of criminal or unlawful activity); Evans v.
Georgia Bureau of Investigation, 297 Ga. 318, 319 (773 SE2d 725) (2015). We hold
that, under the circumstances presented in this case, the records come within the
pending prosecution exemption to disclosure.
Media General contends that the first clause of the cited subsection
(pertinently, that records in any pending prosecution of criminal activity are exempt
from disclosure) does not control this case. OCGA § 50-18-72 (a) (4). According to
Media General, its records request is governed by the final clause of that subsection,
6 which provides that the pending prosecution exemption does not apply to records in
the possession of an agency that is the subject of the pending prosecution. Id. Media
General asserts that the CCSO is “an agency that is the subject of the pending
prosecution” as contemplated by OCGA § 50-18-72 (a) (4), because two sheriff’s
deputies and a nurse working at the detention center were indicted (and nine sheriff’s
office employees were fired) for their roles in Ajibade’s death while he was an inmate
in CCSO’s custody, and the employees and staff had been acting in the course of their
duties when the death occurred.
The CCSO and district attorney argue, however, that the “agency” provision
of the statute is inapplicable because the CCSO itself was not the subject of the
pending investigation and prosecution; instead, individuals were. We agree. There is
no evidence in the record that either the Sheriff himself or the CCSO as a whole was
the subject of the investigation or prosecution.
OCGA § 50-18-70 (b) provides in pertinent part that, “[a]s used in this article,
the term: (1) ‘Agency’ shall have the same meaning as in Code Section 50-14-1.”
OCGA § 50-14-1 (a) (1) (C) pertinently defines “Agency” as “[e]very department, .
. . office, . . . or similar body of each . . . county . . . of the state.” Thus, the term
“agency” does not include the employees of the agency; had the legislature intended
7 “agency” to include all individuals employed by the agency, it could have so
provided. We note that, contrary to Media General’s position, an agency can be the
subject of a criminal prosecution. See, e.g., OCGA §§ 16-2-22 (a) (1), (a) (2) (a
corporation can be criminally prosecuted; also, distinguishing between actions of an
“agent” and a “managerial official” in connection with criminal prosecution of a
corporation); OCGA § 50-18-70 (b) (1) (defining “agency” under Open Records Act
as including some corporations).
In our view, the correct reading of OCGA § 50-18-72 (a) (4), and the one that
is most natural and reasonable, is that the term “agency” is not synonymous with
“employee.” Under the circumstances of this case, the agency was not the subject of
the prosecution. In fact, agency personnel requested criminal investigations of the
individuals involved in Ajibade’s death, conducted internal investigations of the
individuals for possible violations of agency policies, fired several of those
individuals, and referred the matter to the district attorney for possible prosecution.
Media General argues that the CCSO’s act of placing otherwise public records
(i.e., video footage and IAD reports) into exempt files (for investigations and
prosecutions) did not render those records exempt. It cites Irvin v. The Macon Tel.
Pub. Co., 253 Ga. 43 (316 SE2d 449) (1984) for the principle that “merely placing
8 a public record into an exempt file does not make that public record exempt.” But
Irvin is inapposite, as it involved requests for records of GBI investigations of state
employees, which records had been placed in the employees’(confidential) personnel
files; unlike the instant case, in Irvin no criminal actions were taken against any of
the employees investigated and there was no “pending prosecution.” Id. at 43.
[Al]though exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed in derogation of its express terms. Again, the Act contains an express exemption from disclosure for “[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity.” OCGA § 50-18-72 (a) (4).
Evans, supra at 319 (citations and punctuation omitted). The exemption upon which
the CCSO and district attorney rely expressly excludes from disclosure the records
at issue here. Thus, the CCSO and the district attorney met their burden of proving
that the requested records are exempt from disclosure while the prosecution is
pending. Notably, as the CCSO and the district attorney concede in their appellate
brief, the requested records will absolutely be subject to disclosure when the criminal
prosecutions of the three defendants are no longer pending.
No basis for reversal has been shown.
9 Judgment affirmed. Ellington, P. J., and Branch, J., concur.