THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.
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. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).
May 26, 2020
In the Court of Appeals of Georgia A20A0621. HAYES v. THE STATE.
HODGES, Judge.
Thomas Edgar Hayes appeals from the denial of his motion to seal arrest
records and related records in the possession of the Clerk of the Superior Court of
Paulding County, the Paulding County Sheriff’s Department, and the Georgia State
Patrol. Hayes contends that the trial court erred in denying his motion by finding that
the harm to his privacy did not outweigh public interest in the records. For the reasons
that follow, we affirm.
Hayes, a major with the Cobb County Police Department, avers that he was
indicted in 2017 for two counts of homicide by vehicle in the second degree, speeding
in a construction zone, and driving too fast for conditions. After the State determined
that it could not prove that Hayes’ speeding caused the death of the victim, who had run a stop sign, the trial court apparently entered an order of nolle prosequi on the
original indictment. In 2019, Hayes was charged under a new accusation with an
amended charge of speeding in a construction zone, for driving 41 miles-per-hour in
a 35 miles-per-hour zone. Hayes entered a negotiated guilty plea and was sentenced
to, among other things, a fine as a term of probation, and fees, together totaling
$1,315, which it is undisputed that he paid. The trial court granted Hayes’ consent
motion to have his sentence modified and entered under the First Offender Act. Hayes
then moved to seal the record, as outlined above. Following a brief hearing, the trial
court denied the motion and Hayes appealed.
In a single enumeration, Hayes contends that the trial court erred in denying his
motion to seal the records by finding that his privacy does not outweigh the public
interest. We find no error.
As Hayes points out, when a court accepts a plea under the First Offender Act,
the defendant is exonerated of guilt and discharged as a matter of law once the terms
of the sentence are complete. OCGA § 42-8-60 (e) (1). The trial court then must limit
access to certain information, as provided in OCGA § 42-8-62.1 (d) - (f), but only if
it finds by a preponderance of the evidence that the harm to the defendant’s privacy
2 outweighs the public interest in the information. OCGA § 42-8-62.1 (d). In denying
Hayes’ motion, the trial court found that it
recognize[d] the reasonable public interest in this case and will not block media or public access to the file. The [c]ourt does not find by a preponderance of the evidence that the harm otherwise resulting to the privacy of the [d]efendant outweighs the public interests in the criminal history record information being publicly available.
On appeal, Hayes contends that the trial court erred in confusing media interest
in his records with public interest. This argument does not succeed.1 At the hearing,
the State indicated it had received two Open Records Act requests. Although the trial
court’s order states that these were media requests, nothing in the record reveals the
identity of the requester(s). Further, the trial court’s order by its plain language, as
quoted above, clearly states that because it found “reasonable public interest” in the
records, it “will not block media or public access[.]” (Emphasis supplied.)
Hayes also argues, correctly, that beyond stating that it had received two Open
Records Act requests, the State argued only that the motion to seal was untimely
under OCGA § 42-8-62.1 (b) (1). Once Hayes countered that he had filed his motion
1 Hayes does not explain how media interest might differ from public interest; obviously, the media’s role is to inform the public.
3 under a different portion of the statute, see OCGA § 42-8-62.1 (c) and (d),2 the State
did not pursue this argument. The trial court did not rule upon it. The State does not
raise this on appeal, so we do not address it further.
OCGA § 42-8-62.1 (c) provides, in pertinent part, that
An individual who has been exonerated of guilt and discharged pursuant to this article . . . may petition the court that granted such discharge for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index.
OCGA § 42-8-62.1 (d) provides, in pertinent part, that following a petition
filed pursuant to OCGA § 42-8-62.1 (c), the trial court
shall order the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public if the court finds by a preponderance of the evidence that: (1) An exoneration of guilt and discharge has been granted pursuant to this article; and (2) The harm otherwise resulting to the privacy of the individual outweighs
2 See generally Austin v. State, 343 Ga. App. 118, 123, n. 5 (807 SE2d 1) (2017) (discussing the difference between OCGA § 42-8-62.1 (b) and (d)).
4 the public interest in the criminal history record information being publicly available. (Emphasis supplied).
Hayes contends that, given the dearth of argument on the State’s part, the trial
court failed to correctly weigh any public interest versus harm to Hayes. In the trial
court, however, Hayes presented no argument as to how he would be harmed. At the
hearing, he contended only that the misdemeanor speeding arrest he seeks to seal
“doesn’t appear to [present] any general interest as to why that’s so overwhelming or
necessary that the public needs to keep an interest in that.” Likewise, in his motion
to seal, he contended only that his “privacy clearly outweighs the public interest in
Defendant’s criminal history record information being publicly available[.]”
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THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.
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. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).
May 26, 2020
In the Court of Appeals of Georgia A20A0621. HAYES v. THE STATE.
HODGES, Judge.
Thomas Edgar Hayes appeals from the denial of his motion to seal arrest
records and related records in the possession of the Clerk of the Superior Court of
Paulding County, the Paulding County Sheriff’s Department, and the Georgia State
Patrol. Hayes contends that the trial court erred in denying his motion by finding that
the harm to his privacy did not outweigh public interest in the records. For the reasons
that follow, we affirm.
Hayes, a major with the Cobb County Police Department, avers that he was
indicted in 2017 for two counts of homicide by vehicle in the second degree, speeding
in a construction zone, and driving too fast for conditions. After the State determined
that it could not prove that Hayes’ speeding caused the death of the victim, who had run a stop sign, the trial court apparently entered an order of nolle prosequi on the
original indictment. In 2019, Hayes was charged under a new accusation with an
amended charge of speeding in a construction zone, for driving 41 miles-per-hour in
a 35 miles-per-hour zone. Hayes entered a negotiated guilty plea and was sentenced
to, among other things, a fine as a term of probation, and fees, together totaling
$1,315, which it is undisputed that he paid. The trial court granted Hayes’ consent
motion to have his sentence modified and entered under the First Offender Act. Hayes
then moved to seal the record, as outlined above. Following a brief hearing, the trial
court denied the motion and Hayes appealed.
In a single enumeration, Hayes contends that the trial court erred in denying his
motion to seal the records by finding that his privacy does not outweigh the public
interest. We find no error.
As Hayes points out, when a court accepts a plea under the First Offender Act,
the defendant is exonerated of guilt and discharged as a matter of law once the terms
of the sentence are complete. OCGA § 42-8-60 (e) (1). The trial court then must limit
access to certain information, as provided in OCGA § 42-8-62.1 (d) - (f), but only if
it finds by a preponderance of the evidence that the harm to the defendant’s privacy
2 outweighs the public interest in the information. OCGA § 42-8-62.1 (d). In denying
Hayes’ motion, the trial court found that it
recognize[d] the reasonable public interest in this case and will not block media or public access to the file. The [c]ourt does not find by a preponderance of the evidence that the harm otherwise resulting to the privacy of the [d]efendant outweighs the public interests in the criminal history record information being publicly available.
On appeal, Hayes contends that the trial court erred in confusing media interest
in his records with public interest. This argument does not succeed.1 At the hearing,
the State indicated it had received two Open Records Act requests. Although the trial
court’s order states that these were media requests, nothing in the record reveals the
identity of the requester(s). Further, the trial court’s order by its plain language, as
quoted above, clearly states that because it found “reasonable public interest” in the
records, it “will not block media or public access[.]” (Emphasis supplied.)
Hayes also argues, correctly, that beyond stating that it had received two Open
Records Act requests, the State argued only that the motion to seal was untimely
under OCGA § 42-8-62.1 (b) (1). Once Hayes countered that he had filed his motion
1 Hayes does not explain how media interest might differ from public interest; obviously, the media’s role is to inform the public.
3 under a different portion of the statute, see OCGA § 42-8-62.1 (c) and (d),2 the State
did not pursue this argument. The trial court did not rule upon it. The State does not
raise this on appeal, so we do not address it further.
OCGA § 42-8-62.1 (c) provides, in pertinent part, that
An individual who has been exonerated of guilt and discharged pursuant to this article . . . may petition the court that granted such discharge for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index.
OCGA § 42-8-62.1 (d) provides, in pertinent part, that following a petition
filed pursuant to OCGA § 42-8-62.1 (c), the trial court
shall order the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public if the court finds by a preponderance of the evidence that: (1) An exoneration of guilt and discharge has been granted pursuant to this article; and (2) The harm otherwise resulting to the privacy of the individual outweighs
2 See generally Austin v. State, 343 Ga. App. 118, 123, n. 5 (807 SE2d 1) (2017) (discussing the difference between OCGA § 42-8-62.1 (b) and (d)).
4 the public interest in the criminal history record information being publicly available. (Emphasis supplied).
Hayes contends that, given the dearth of argument on the State’s part, the trial
court failed to correctly weigh any public interest versus harm to Hayes. In the trial
court, however, Hayes presented no argument as to how he would be harmed. At the
hearing, he contended only that the misdemeanor speeding arrest he seeks to seal
“doesn’t appear to [present] any general interest as to why that’s so overwhelming or
necessary that the public needs to keep an interest in that.” Likewise, in his motion
to seal, he contended only that his “privacy clearly outweighs the public interest in
Defendant’s criminal history record information being publicly available[.]”
The “preponderance of the evidence” standard which applied to the lower court’s determination means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. The standard requires only that the finder of fact be inclined by the evidence toward one side or the other.
(Citation and punctuation omitted.) Austin, 343 Ga. App. at 122. In our view, there
is little evidence on either side. However, this Court is not a finder of fact. “As to the
sufficiency of the evidence, this is a court for the correction of errors, and ordinarily
5 it is within this Court’s purview to review such a determination for legal error once
made by the trial court, not to make the determination in the first place.” (Citations
omitted.) Doe v. State, 347 Ga. App. 246, 256-257 (5) (819 SE2d 58) (2018). It is
clear from the language of the trial court’s order that it weighed the scant evidence
presented – public interest exhibited in the form of two Open Records Act requests
versus Hayes’ very general statement that he would be harmed – and “[did] not find
by a preponderance of the evidence that the harm otherwise resulting to the privacy
of the Defendant outweighs the public interests in the criminal history record being
publicly available.” (Emphasis in original.) OCGA § 42-8-62.1 (d) makes clear that
the discretion required to weigh whatever evidence has been presented rests squarely
with the trial court. See Austin, 343 Ga. App. at 122. See generally Doe v. State, No.
A19A2378, 2020 Ga. App. LEXIS 174, at *3 (1) (March 11, 2020) (finding no abuse
of discretion where trial court denied motion to seal records under OCGA § 35-3-37
(m) where arrestee who had been acquitted alleged, without detail or supporting
documents, that he had been denied employment because of arrest records). We find
no error.
Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.