October 5, 2012
MEMORANDUM
To:
GHA Member CEOs
In-House Counsel
From: Temple Sellers, General Counsel
Re:
HB 397: Comprehensive Revision to Georgia’s Sunshine Laws
During the 2012 Legislative Session, the Georgia General Assembly passed HB 397, a
comprehensive revision of Georgia’s Open Meetings Act and Open Records Act, both
collectively referred to as the “Sunshine Laws.” HB 397 became effective immediately upon the
Governor’s signature. GHA staff worked with Attorney General Sam Olens, the bill’s primary
proponent, and Rep. Jay Powell, its primary legislative sponsor, to include a number of
provisions to protect the interests of hospital authorities. GHA staff would like to give special
thanks to the members of the In-House Counsel Association for their invaluable assistance with
our efforts to make improvements to HB 397 and to lessen its negative impact on hospitals. This
memo provides a detailed summary of HB 397. However, it is not intended as legal advice and
hospitals should consult with their legal counsel regarding any specific applications of the law.
I.
A.
OPEN MEETINGS ACT
Entities Covered by Act
HB 397 makes no significant changes to the type of entities covered by the Open Meetings Act.
The Act applies to any "agency" as defined in O.C.G.A. § 50-14-1(a)(1). This definition has
been broadened over the years, but in essence includes virtually any public or governmental
entity, including hospital authorities. In its well-publicized “Promina decision” in 1995, the
Georgia Court of Appeals expanded the law to cover several private corporations which had been
created to lease and operate authority-owned hospitals as well as their parent entity, i.e.,
restructured authorities. Northwest Georgia Health System, Inc. v. Times-Journal, Inc., 218 Ga.
App. 336 (1995). Since that time, most restructured entities have submitted themselves to the
Act's requirements and followed the basic findings of the Court in the Promina decision. The
Open Meetings Act, however, has never specifically addressed whether its provisions apply to
affiliated private entities created by and as a part of a hospital authority's corporate restructuring
program and HB 397 does nothing to change that fact. Restructured entities should continue to
consult with legal counsel regarding the extent to which the Sunshine Laws apply to them. For
purposes of this Memo, any reference to hospital authorities includes private entities that lease
authority owned hospitals to the extent the law applies to such entities.
B.
Meetings Covered by Act
HB 397 makes numerous changes regarding the types of meetings covered by the Open Meetings
Act. Some of these changes create new exemptions or expand the topics that may be discussed or
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in some cases voted upon in “closed” or “executive” session. However, other changes expand the
types of meetings that must be open to the public and/or comply with the procedural
requirements of the Act, such as providing the public with advance notice, meeting agendas and
minutes.
1. Committees
One of the most significant expansions relates to the types of “committees” that are subject to the
Act. While previously the Act applied only to committees comprised of board members,
now, unless a statutory exception applies, any committee created by the governing body
must conduct open meetings and follow the Act’s procedural requirements.1
HB 397 now defines a meeting as (i) the gathering of a quorum of the members of the governing
body of an agency at which any official business, policy, or public matter of the agency is
formulated, presented, discussed or voted upon; or (ii) the gathering of a quorum of any
committee of the members of the governing body of an agency or a quorum of any committee
created by the governing body at which any official business, policy or public matter of the
committee is formulated, presented, discussed or voted upon. O.C.G.A. § 50-14-1(a)(3)(A).
As with any new statutory language, this provision raises questions which must await judicial
resolution. For example, courts will likely be asked to apply the law to specific factual scenarios
to determine whether a particular committee was “created by” the governing body of an agency.
However, as applied to hospital authorities, this language raised significant concerns that, absent
an express exception, medical staff committees would be subject to the Act because they are
established in medical staff bylaws which require approval by the hospital's governing body. To
address these concerns, GHA successfully advocated for an exclusion from the Open Meetings
Act for meetings of all medical staff committees. O.C.G.A. § 50-14-3(a)(6).2 GHA also
successfully advocated for other exclusions discussed more fully below.
C.
Gatherings/Meetings Excluded from the Act
1. Gatherings Excluded from Definition of a Meeting
HB 397 identifies five gatherings that are expressly excluded from the definition of a meeting.3
Gatherings that fall under the following exclusions are not required to be open to the public or to
1
Early versions of HB 397 expanded the law much further by defining a meeting to include “the gathering of or
communications between more than two but less than a quorum” of the members of a governing body. GHA and
representatives of other agencies successfully opposed this language. It is important to note therefore that a
gathering of less than a quorum of the governing body or a committee created by the governing body is not required
to be open to the public, whether or not any official business, policy or public matter is formulated, presented or
discussed.
2
GHA attempted to include language to also exempt board advisory committees that are not empowered to act on
behalf of the governing body. Unfortunately, while this language was included at one point, it was subsequently
removed during the committee process. As a result, gatherings of a quorum of such committees, when they are
created by the board, must now be open to the public and satisfy the other procedural requirements of the Act.
3
It is unclear why separate exclusions are included in the Act for many of these gatherings given the fact, as noted
above, the definition of a meeting does not include any gathering of the quorum of the governing body or committee
where no official business, policy or public matter of the committee is formulated, presented, discussed or voted
2
satisfy any of the procedural requirements of the Act. The five excluded gatherings include the
following:

Inspection of Physical Facilities or Property. The Act previously excluded from
the definition of a meeting a quorum of the board or committee assembled
together for the purpose of inspecting physical facilities under the agency's
jurisdiction at which no final official action was to be taken. HB 397 expands this
exclusion to also allow the inspection of property under the agency’s jurisdiction.
The prohibition against taking any official action has also been expanded to
prohibit “discussing” any other official business of the agency. O.C.G.A. § 50-141(a)(3)(B)(i).

Meeting with State or Federal Legislative or Executive Officials. The Act
previously excluded from the definition of a meeting a gathering of a quorum of
the members of a governing body or committee for the purpose of meeting with
governing bodies, officers, agents, or employees of other agencies at places
outside the geographical jurisdiction of an agency at which no official action is to
be taken (i.e., meetings with associations of county commissioners, city councils,
or other authorities). HB 397 eliminates this language and replaces it with an
exclusion for “The gathering of a quorum of the members of a governing body or
committee for the purpose of meeting with officials of the legislative or executive
branches of the state or federal government at state or federal offices at which no
official action is to be taken by the members.” O.C.G.A. § 50-14-1(a)(3)(B)(iii).

Gatherings to Participate in Training Seminars. HB 397 creates a new exclusion
for gatherings of a quorum of the members of the governing body or committee
for the purpose of attending state-wide, multijurisdictional, or regional meetings
to participate in seminars or courses of training on matters related to the purpose
of the agency at which no official action is to be taken by the members. O.C.G.A.
§ 50-14-1(a)(3)(B)(ii).

Gatherings at Social Ceremonial, Civic, or Religious Events. HB 397 creates a
new exclusion for gatherings of a quorum of the members of the governing body
of an agency at social, ceremonial, civic, or religious events so long as no official
business, policy, or public matter is formulated, presented, discussed, or voted
upon by the quorum. O.C.G.A. § 50-14-1(a)(3)(B)(v).4

Gatherings to Travel to a Meeting or Gathering. HB 397 creates a new exclusion
for his gatherings of a quorum of the members of the governing body of an
upon. However, some of these exclusions seemingly allow for the formulation, presentation and/or discussion of
official business, such as the exclusions for gatherings to participate in training seminars or to meet with state of
federal officials. However, all of the exclusions prohibit official action at exempt gatherings.
4
Unlike the three exclusions listed above, this exclusion and the following exclusion for gatherings to travel to a
meeting or gathering do not include gatherings of a quorum of a committee. Instead, the express language excludes
only a quorum of the members of the governing body. It is unclear whether this was inadvertent, although it seems
to make little sense to require that a gathering of the quorum of a committee for these purposes should be subject to
the Act while the gathering of a quorum of the governing body for the same purposes is excluded.
3
agency for the purpose of traveling to any meeting or gathering under the Act so
long as no official business, policy, or public matter is formulated, presented,
discussed or voted upon by the quorum. O.C.G.A. § 50-14-1(a)(3)(B)(iv).
The Act also provides that if it is shown that “the primary purpose” of any of the five gatherings
described above is “to evade or avoid” the requirements of the Open Meetings Act while
discussing or conducting official business, the exclusion will not apply and the gathering will be
considered a meetings that should have been open and otherwise conducted in compliance with
the Act. The failure to treat it as such could therefore result in a criminal conviction, criminal
fines or civil penalties as discussed in Section F below.
2. Meetings and Communications Excluded from the Act
In addition to excluding certain types of gatherings from the definition of a meeting, HB 397 also
identifies a number of meetings and types of communications by Boards and their committees
that are excluded from the Acts requirements. O.C.G.A. § 50-14-3.5 Some of these are new
exclusions while others existed previously in some form. The exclusions most likely to be of
interest to hospitals include the following:

Medical Staff Committees and Board/Committee Meetings when Performing
Peer/Medical Review. As noted previously, GHA successfully advocated for an
exclusion for all medical staff committee meetings. In addition, while peer
review/medical review committees have never been required to be open to the
public, the significant expansion of the types of committees covered by the Act
raised concerns that this could change. For this reason, GHA also successfully
advocated for an additional exclusion for meetings of the governing body or its
committees when performing a medical or peer review function as recognized by
state or federal law.6 O.C.G.A. § 50-14-3(a)(6). Georgia’s peer review statutes
define peer review activities very broadly. Hospitals may wish to consult their
legal counsel regarding the applicability of these statutes to the activities of the
board or its committees.

E-mail Communications. The Act previously contained no reference to e-mail
communications. HB 397 now expressly excludes e-mail communications among
members of an agency from the Act. O.C.G.A. § 50-14-3(a)(8). While some may
question whether email communications could have ever be considered a
“gathering” that falls within the definition of a meeting, this new exclusion
5
Some of the meetings set forth in O.C.G.A. § 50-14-3 are exempted from the Act entirely and are not required to
be conducted in executive session or to comply with the other procedural requirements of the Act. For this reason,
they are treated under the law in the same manner as the five gatherings that are excluded from the definition of a
meeting in O.C.G.A. § 50-14-1. However, some of the meetings set forth in O.C.G.A. § 50-14-3 are not fully
exempted and must still comply with some of the Act’s requirements. For this reason, it is important to carefully
review each provision to ensure appropriate steps are taken to comply with any applicable requirements.
6
This new exclusion is in addition to an existing provision in another part of the Georgia Code that provides a
specific exemption for those peer review proceedings conducted in order to act on applications or reapplications for
clinical privileges, to review professional practices in the hospital, to provide for improvements of patient care, and
to reduce mortality and morbidity. O.C.G.A. § 31-7-15(d).
4
expressly authorizes a quorum of the governing body to communicate via email
about official matters without complying with any of the requirements of the
Open Meetings Act. However, it is important to note that such email
communications are expressly subject to the Open Records Act. O.C.G.A. § 31-715(d).
D.

Mediations. Previously the Act contained no exclusion for agencies to participate
in closed mediations. HB 397 now excludes gatherings involving an agency and
one or more neutral third parties in mediation of a dispute between the agency and
any other party. In such gatherings, the neutral party may caucus jointly or
independently with the parties to the mediation to facilitate a resolution to the
conflict, and any such caucus is not subject to the Act. However, any decision or
resolution agreed to by an agency at a caucus is not effective until it is ratified in a
public meeting and the terms are disclosed to the public. In addition, any final
settlement agreement is subject to the Open Records Act. O.C.G.A. § 50-143(a)(5).

Incidental Conversations. Previously the Act contained no exclusion for
incidental conversation. HB 397 now excludes from the Act incidental
conversations unrelated to the business of the agency. O.C.G.A. § 50-14-3(a)(7).

Meetings re Staff Privileges or Abortions. HB 397 retains, without modification,
the previous language excluding meetings of the governing authority of a public
hospital or any committee thereof in which the granting, restriction, or revocation
of staff privileges or the granting of abortions under state or federal law is
discussed, considered or voted upon. O.C.G.A. § 50-14-3(a)(6)(C).

Staff Meetings. HB 397 retains, without modification, the previous language
excluding staff meetings held for investigative purposes under duties or
responsibilities imposed by law. O.C.G.A. § 50-14-3(a)(1).
Executive Session
The discussion of certain topics have historically been permitted in “executive sessions” of the
Boards or their committees, and the portions of Board or committee meetings dealing with such
topics have been “closed” to the public by authorizing “executive sessions.” Previously the Act
did not define an executive session. HB 397 now defines this term to mean “a portion of a
meeting lawfully closed to the public.” O.C.G.A. § 50-14-1(a)(2).
1. Topics Appropriate for Executive Session

Commercially Valuable Plans, Proposals or Strategies. HB 397 does not change
the provision in the Hospital Authorities Law which allows hospital authorities to
go into executive session to discuss “any potentially commercially valuable plan,
proposal, or strategy that may be of competitive advantage in the operation of the
corporation or authority or its medical facilities and which has not been made
5
public.” O.C.G.A. § 31-7-75.2. However, the notice and record-keeping
requirements discussed in Section E below should be followed.

Attorney-Client Meetings. HB 397 retains, without amendment, the longstanding authority of an agency to close a meeting to allow a quorum of the board
or committee to meet with legal counsel, but only with respect to pending or
potential litigation, settlement, claims, administrative proceedings, or other
judicial actions brought or to be brought by or against the agency or any officer or
employee or in which the agency or any officer or employee may be directly
involved.7 O.C.G.A. § 15-4-2(1). The Act also retains the requirement that a
meeting must be open to the public when the board or committee is receiving
advice from an attorney on whether to close a meeting under this authority. Id.
HB 397 also now expressly authorizes an agency to meet in executive session to
discuss or to vote to authorize the settlement of any matter that is properly
discussed with legal counsel as described above. O.C.G.A. § 50-14-3(b)(1)(A).
However, no vote in executive session to settle litigation, claims, or
administrative proceedings is legally binding on an agency until a subsequent vote
is taken in an open meeting where the parties and terms of the settlement are
disclosed before the vote. Id.

Meetings re Property and Real Estate. HB 397 authorizes an agency to meet in
executive session to discuss or vote to:
o Authorize negotiations to purchase, dispose of, or lease real property;
O.C.G.A. § 50-14-3(b)(1)(A)
o Authorize the ordering of an appraisal related to the acquisition or disposal of
real estate; O.C.G.A. § 50-14-3(b)(1)(C)
o Enter into a contract to purchase, dispose of, or lease property subject to
approval is a subsequent public vote; O.C.G.A. 50-14-3(b)(1)(D) or
o Enter into an option to purchase, dispose of, or lease real estate subject to
approval in subsequent public vote. O.C.G.A. 50-14-3(b)(1)(E).
Previously, agencies were only authorized to convene in executive session when
discussing the future acquisition of real estate. HB 397 expands this authority.
Agencies may take action beyond mere discussions, including voting to authorize
negotiations, order appraisals, and enter into contracts. This authority also extends
beyond future acquisitions to include the disposal or lease of such property.
While the Act previously did not require the public disclosure of that portion of
the minutes which identified the real estate to be acquired until the acquisition of
7
“A realistic and tangible threat of litigation sufficient to justify holding a closed meeting under the open meeting
law is one that can be characterized with reference to objective factors which may include, but which are not limited
to (1) a formal demand letter or some comparable writing that presents the party's claim and manifests a solemn
intent to sue, (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning
similar claims, or (3) proof that a party has both retained counsel with respect to the claim at issue and has expressed
an intent to sue. O.C.G.A. § 50-14-2(1).
6
such real estate transaction had been completed, terminated, abandoned, or court
proceedings with respect to the acquisition had been initiated, HB 397 now
provides that no vote in executive session to acquire, dispose of, or lease real
estate is legally binding on an agency until a subsequent vote is taken in an open
meeting where the identity of the property and the terms of the acquisition,
disposal, or lease are disclosed before the vote.

Personnel Matters. The Act previously authorized agencies to meet in executive
session to discuss or deliberate on the appointment, employment, compensation,
hiring, disciplinary action, dismissal, periodic evaluation, or rating of a public
officer or public employee. This authority has now been amended to also include
meetings “when interviewing applicants for the position of executive head of an
agency.” O.C.G.A. § 50-14-3(b)(2). While the discussions and deliberations on
such matters may be undertaken in executive session, the actual voting on such
matters must be conducted in open session and the minutes of such voting must be
available in the same manner required for other minutes. Id. However, both
discussions and votes on the filling of vacancies on an agency’s board, e.g., a
hospital authority board, are required to be open to the public. Id.
In addition, previously the Act required an open session for meetings when
receiving evidence or hearing argument “on charges filed to determine
disciplinary action or dismissal of a public officer or employee”. This language
has been amended to require an open session when receiving evidence or hearing
argument “on personnel matters, including whether to impose disciplinary action
or dismiss a public officer or employee or when considering or discussing matters
of policy regarding the employment or hiring practices of the agency.”8 Id.

Portions of Meetings Involving Consideration of Records Exempt from Open
Records Act. Previously the Act allowed closed meetings when discussing
certain records that were exempt from public inspection or disclosure under the
Open Records Act because disclosure would compromise security against
sabotage or criminal or terrorist acts. HB 397 substantially broadens this
exemption to authorize an agency to close portions of a meeting when considering
parts of any record exempt from the Open Records Act when “there are no
reasonable means by which the agency can consider the record without disclosing
the exempt portion if the meeting were not closed.”
8
It is unclear how the provisions in the Open Meetings Act related to personnel matters apply to hospital authorities.
For example, there is no definition of a public officer or employee in this Code Section. However, hospital
employees are not paid with public funds and are not generally considered public employees under Georgia law.
Nevertheless, the language requiring open meetings when receiving evidence or hearing arguments on personnel
matters or when discussing employment or hiring practices and policies is very broad and there is no exception for
hospital authorities related to this requirement. Hospitals should consult with legal counsel to determine the steps
necessary to comply with this provision.
7
2. Procedural Requirements for Executive Session
HB 397 retains, with a few minor amendments, the requisite formalities that must be observed
whenever the board or a committee convenes in executive session. O.C.G.A. § 50-14-4. For
example, an open meeting must first be convened and all of the procedural requirements of the
Act must be met with respect to the initial open meeting, even if the only agenda items involve
topics to be discussed in executive session. A motion should be made in open session to convene
in executive session, stating the reason for such closure. Meeting minutes that include specific
reasons for such closure, the names of members present, and the names of members voting for
closure must be recorded and should be kept with the regular minutes of the board or committee
and open for public inspection. O.C.G.A. § 50-14-4.
However, HB 397 now also includes a new requirement to prepare minutes of each executive
session. These minutes are not required to be made available for public inspection. They must
specify each issue discussed, and if such matters are subject to the attorney-client privilege, the
fact the discussion occurred and its subject must be recorded but the substance of the discussion
need not be recorded. The minutes must be retained so that if a dispute arises regarding the
propriety of an executive session, the court considering the matter may inspect the minutes.
O.C.G.A. § 50-14-1(e)(2)(C).
HB 397 also changes the affidavit requirement for an executive session. Previously, when any
meeting was closed, “the chairperson or other person presiding over such meeting” was required
to execute and file a notarized affidavit with the official meeting minutes stating under oath that
the subject matter of the meeting’s closed portion was devoted to a topic in the Act’s exceptions
and identifying which exception. Now this must be done by either the person presiding over the
meetings, or, if the agency’s policy so provides, each member of the governing body attending
such meeting. O.C.G.A. § 50-14-4(b)(1).
As has always been the case, only matters that are legally exempt from the open meetings law
may be discussed at the executive session. However, a new provision requires that in the event
one or more persons in an executive session initiates a discussion that is not authorized to be
discussed in closed session, the presiding officer shall immediately rule the discussion out of
order and all present shall cease the questioned conversation. If one or more persons continue
the discussion after being rules out of order, the presiding officer must immediately adjourn the
executive session. O.C.G.A. § 50-14-4(b)(2).
E.
Procedural Requirements for Open Meetings
HB 397 makes a number of changes to the procedural requirements involving: (1) notice of an
open meeting, (2) an agenda prior to the meeting, (3) the record or minutes memorializing an
open meeting, and (4) public accessibility to an open meeting. Most of these requirements are
contained in O.C.G.A. § 50-14-1, and each will be discussed separately below.
8
1. Notice

Regular Meetings. The time, place and dates of regular meetings of the agency or
committee must be established, and this information must now be made available
to the public at least one week in advance. O.C.G.A. § 50-14-1(d)(1). A notice
containing the time, place and date of each regular meeting must also be posted in
a conspicuous place at the regular meeting location as well as on the agency’s
website if it has one. Id.
Meetings of the board and committees should be held in accordance with the
posted schedule, but it is permissible to divert from that schedule by canceling or
postponing meetings, as discussed below. O.C.G.A. § 50-14-1(d)(1).

Rescheduled or Special Meetings. If a meeting is not held at the regular time or
place, or if a special meeting is called between regular meetings, the agency must
give written or oral notice of such meetings at least 24 hours in advance of the
meeting to the legal organ (the paper in which notices of sheriff's sales are
published) of the county where regular meetings are held or, at the agency’s
option, to another newspaper having a general circulation in the county at least
equal to that of the legal organ. O.C.G.A. § 50-14-1(d)(2). The previous
requirement to also post written notice for at least 24 hours at the place of regular
meetings has been eliminated except as described below.
Where the legal organ in the county is published less than four times a week,
"sufficient notice" shall constitute the posting of a written notice for at least 24
hours at the place of regular meetings, and upon written request from any local
broadcast or print media outlet whose place of business and physical facilities are
located in the county, notice by phone, fax or email to that requesting media
outlet at least 24 hours in advance of the called meeting. Id. In addition, upon
written request from any local broadcast or print media, a copy of the
meeting’s agenda must be provided by fax, email or mail through a selfaddressed, stamped envelope provided by the requestor. Id.

Emergency Meetings. If special circumstances exist, the board or committee can
hold a meeting with less than 24 hours’ notice, but the agency must declare
special circumstances mandating this meeting exist, and public notice must be
given which is “reasonable under the circumstances.” O.C.G.A. § 50-14-1(d)(3).
Notice of the emergency meeting and the subjects expected to be considered must
be given to the legal organ or to another newspaper having a general circulation at
least equal to that of the legal organ. Id. In addition, reasonable notice now
must also include, upon written request within the previous calendar year
from any local broadcast or print media outlet whose place of business and
physical facilities are located in the county, notice by telephone, fax, or e-mail
to the requesting media outlet. Id. The nature of the notice and reason for
holding the special meeting must be recorded in the minutes. Id.
9
2. Pre-Meeting Agenda
The only change related to pre-meeting agendas is the clarification that the requirements to make
these agendas available on request apply not only to agencies but also to committees created by
the board as discussed above. HB 397 does not change the existing requirement that, as far in
advance of the meeting as reasonably possible, but at a minimum, at some time during the two
weeks prior to the meeting, the agency must make available to the public an agenda of all matters
expected to come before the agency. O.C.G.A. § 50-14-1(e)(1).This agenda must still be posted
at the meeting site and be available to third persons upon request. Id.
3. Records

Written Summary. There is no change to the requirement that, after an open
meeting is completed, a written summary of the subjects acted on and the
members present must be prepared. O.C.G.A. § 50-14-1(e)(2)(A). This summary
must be made available to the public for inspection within two business days of
the adjournment of the meeting. Id.

Minutes. HB 397 makes a number of changes to the provisions related to minutes
of an open meeting. First, the bill makes it clear minutes are required both for
meetings of the agency and for meetings of committees subject to the Act.
O.C.G.A. § 50-14-1(e)(2)(B). The minutes must be promptly recorded and open
to public inspection once approved as official by the board or committee, but in
no case later than immediately following the next regular meeting of the board or
committee. Id. Minutes were previously required to include, at a minimum, the
names of members present at the meeting, a description of every motion or
proposal made, and a record of all votes. Id. Now the minutes must also include
the identity of the persons making and seconding any motion or other
proposal. Id.
o
Persons Voting. The minutes must include the names of each person
voting for or against a proposal, but it will be presumed the action was
approved by each person present unless the minutes reflect the name of
those persons voting against the action or abstaining. Id.
o
Emergency Meeting. As noted above, in the case of an emergency
meeting, the nature of the emergency and nature of the notice must also be
in the minutes. O.C.G.A. § 50-14-1(d)(3).
o
Executive Session. As discussed above more fully, minutes are now
required for an executive session but are not required to be made available
for public inspection. O.C.G.A. § 50-14-1(e)((2)(C).
10
F.
Teleconference Meetings
1. Conducting Teleconference Meetings
HB 397 authorizes agencies to conduct open meetings by teleconference in very limited
circumstances. While GHA advocated for language broadly authorizing hospital authorities to
conduct meetings by teleconference as long as the public was provided notice and the
opportunity to participate, our proposed language was not accepted.
With respect to conducting entire meetings by teleconference, HB 397 retains the previous
language in the Open Meetings Act authorizing “an agency with statewide jurisdiction” to
conduct such meetings. O.C.G.A. § 50-14-1(f). The bill also adds a new provision that
authorizes agencies that do not have statewide jurisdiction to conduct meetings by teleconference
“under circumstances necessitated by emergency conditions involving public safety or the
preservation of property or public services” as long as the notice requirements of the Act are
followed and the public is given access to also participate via teleconference. O.C.G.A. § 50-141(g).
Since hospital authorities do not have statewide jurisdiction, and the emergency conditions set
forth in the Act will rarely occur, hospital authorities are generally prohibited from conducting
open meetings by teleconference. While GHA strongly objected to this restriction, the Attorney
General and legislative sponsors of HB 397 pointed out that the Act already contained this
prohibition and while the public’s interest may not be harmed by hospitals conducting such
meetings, they did not want to allow governmental entities like county commissions, city
councils or state agencies to do so. They also rejected our efforts to create an exception
applicable only to hospital authorities.
2.
Participation in In-Person Meetings via Teleconference
While the restriction on conducting fully telephonic public meetings is arguable not new, HB
397 also includes express limitations on the ability of individual board or committee members to
participate in open meetings by teleconference where a quorum is otherwise present in person.
O.C.G.A. § 50-14-1(g). Previously the law was silent regarding such participation and arguably
no restrictions existed. The Act now provides “so long as a quorum is present in person, a
member may participate by teleconference if necessary due to reasons of health or absence from
the jurisdiction so long as the other requirements of this chapter are met. Absent emergency
conditions or the written opinion of a physician or other health professional that reasons of health
prevent a member’s physical presence, no member shall participate by teleconference pursuant to
this subsection more than twice in one calendar year.” Id.
GHA will continue its efforts to authorize hospital authorities to conduct open meetings by
teleconference and to allow individual board or committee members to participate in such
meetings via teleconference during the 2013 legislative session.9
9
The Georgia Nonprofit Corporation Code authorizes board members to participate in a telephonic meeting as long
as all directors participating may simultaneously hear each other during the meeting. O.C.G.A. § 14-3-820(b).
11
G.
Enforcement and Sanctions
HB 397 retains the language providing that “any resolution, rule, regulation, ordinance or other
official action adopted, taken, or made in a closed meeting which was required to be open to the
public is not binding”. O.C.G.A. § 50-14-1(b)(2). However, the timeframe for contesting a
resolution, rule, regulation, ordinance or other formal action has been amended. Previously such
an action had to be commenced within 90 days of the date the contested action was taken and
challenges initiated after the 90 day period would not be enforced. Now, “if the meeting was held
in a manner not permitted by law” the action may be contested “within 90 days from the date the
party alleging the violation knows or should have known about the alleged violation so long as
the date is not more than six months after the date the contested action was taken.” O.C.G.A. §
50-14-1(b)(2).
HB 397 retains the authority of the Attorney General or any other person, firm, or other entity to
bring a civil action in superior court to enforce the Open Meetings Act. A new provision
authorizes the court to impose a civil penalty in any civil action against a person who negligently
violates the Act in an amount not to exceed $1,000. O.C.G.A. § 50-14-6. The Attorney General
also retains the authority to file a criminal action against any person who violates the law with
the maximum criminal fine for the misdemeanor of “knowingly and willfully” conducting or
participating in a meeting in violation of the Meetings Act increased from $500 to $1000. In
addition, a new provision authorizes a civil penalty or criminal fine not to exceed $2500 per
violation “for each individual violation that the violator commits within a 12 month period from
the date that the first penalty or fine was imposed.” Id. Finally, HB 397 provides that is shall be
a defense to any criminal action that a person acted in good faith in his or her actions. Id.
However, there is no similar defense available for civil actions.
II.
A.
OPEN RECORDS ACT
Declaration of Public Policy in Favor of Public Inspection
HB 397 sets the tone for significant revisions to the Open Records Act in the first subsection by
articulating legislative findings and declarations of public policy in favor of open government.
O.C.G.A. § 50-18-70(a). Significantly, the bill provides that the Act “shall be broadly construed
to allow the inspection of governmental records” and exceptions “shall be interpreted narrowly”
to exclude only those portions of records addressed by such exceptions.10 This language is
significant because Georgia courts will very likely be called upon to interpret new and amended
provisions of the Act and the inclusion of such strong language in support of public disclosure
Since restructured hospital authorities are allowed to exercise all powers possessed by private corporations
[O.C.G.A. § 31-7-75(21)], this provision in the Nonprofit Corporation Code may arguably allow restructured entities
to conduct telephonic board meetings. Restructured entities should discuss this issue with legal counsel and, if such
meetings are deemed appropriate, the public should be given notice and the opportunity to participate.
10
This subsection specifically references the exceptions to disclosure located in other Code sections in a manner that
clarifies HB 397 is not intended to repeal such exceptions. Id. This is important to hospital authorities because the
exception for commercially valuable plans, proposals or strategies that may be of competitive advantage is located
in the Hospital Authorities Law, not in the Open Records Act.
12
may have significant implications for how courts rule in these cases. Hospitals and their legal
counsel should keep this in mind when considering how to comply with the Act.
B.
Right of Public Inspection and Copying
HB 397 maintains the previous requirement that all public records, except those exempt from
disclosure by law or court order, must be open for personal inspection and copying. O.C.G.A. §
50-18-71(a).11 Any person can make “photographic copies or other electronic reproductions of
the records, using suitable portable devices brought to the place of inspection.” O.C.G.A. § 5018-71(b)(1)(B). HB 397 adds a provision authorizing an agency, in its discretion, to provide
copies of any record containing confidential information that must be redacted in lieu of
providing access to the record. O.C.G.A. § 50-18-71 (b)(1)(B).
C. Entities Covered by the Act
HB 397 makes no significant changes to the entities covered by the Act, maintaining the
provision establishing that the term “Agency” has the same meaning in the Open Records Act as
in the Open Meetings Act. O.C.G.A. § 50-18-70(b)(1).12 Public records prepared and maintained
or received by a private person or entity performing a service or function for or on behalf of an
agency are also covered by the Act. O.C.G.A. § 50-18-70(b)(2). Therefore, both traditional
hospital authorities and the private entities that lease authority owned hospitals and take over
their operations through the restructuring process are subject to the Open Records Act to the
same extent as the hospital authorities.
D.
Records Covered By the Act
1. Public Record Defined
HB 397 maintains the previous substantive definition of a public record with the notable addition
of the terms “data” and “data fields” to reflect the increase in the use of electronic media that has
taken place since the last significant revision of the Act in 1999. “Public record” now means “all
documents, papers, letters, maps, books, tapes, photographs, computer based or generated
information, data, data fields, or similar material prepared and maintained or received by an
agency or by a private person or entity in the service or function for or on behalf of an agency or
when such documents have been transferred to a private person or entity by an agency for
storage or future governmental use.” O.C.G.A. § 50-18-70(b)(2).
11
While the Act previously contained language arguably limiting the right of inspection to “any citizen of this state”
a 1993 Attorney General’s opinion stated records should be available to nonresidents as well. 1993 Ga. Op. Att’y
Gen. No. 93-27. HB 397 deleted the reference to Georgia citizens, removing uncertainly regarding whether nonresidents are also entitled to inspect and copy public records.
12
The definition also includes “any association, corporation, or other similar organization that has a membership or
ownership body composed primarily of counties, municipal corporations, or school districts of this state, their
officers, or any combination thereof and derives more than 33 ⅓ percent of its general operating budget from
payments from such political subdivisions.” The Act previously used the more general term “derives a substantial
portion of its general operating budget” and included the definition of the term “agency” within the definition of a
“public record” rather than as a separately defined term.
13
2. Electronic Records
In addition to the inclusion of "data" and "data fields" in the definition of a public record, HB
397 includes many new provisions related to electronic records. These changes reflect the
advances in technology and the electronic format in which records are now often prepared,
maintained and received. A fundamental principal reflected in the Act is that “an agency’s use
of electronic record-keeping systems must not erode the public’s right of access to records under
this article.” O.C.G.A. § 50-18-71(f). This fundamental principal underlies many of the
provisions in HB 397 related to electronic records.13

E-Mail, Text Messages and Other Electronic Messages. Public Records includes
electronic messages, whether in the form of e-mail, text message or other format
to the extent such messages otherwise meet the definition of a public record.
O.C.G.A. § 50-18-71(g). HB 397 includes helpful language regarding the
information that should be included in requests to inspect or copy these messages,
providing that such requests “should contain information about the messages that
is reasonably calculated to allow the recipient of the request to locate the
messages sought, including, if known, the name, title or office of the specific
person or persons whose electronic messages are sought, and to the extent
possible, the specific data bases to be searched for such messages.” Id.
Hospital authorities may want to consider developing policies for preserving emails and other electronic messages following the receipt of a request for such
records.14 Board members should also receive training regarding such policies
because a board member’s e-mails and texts are subject to the Act to the extent
they are related to the business of the public hospital even when the board
member uses his personal computer or handheld device to send or receive such
messages.15

Inputting Commands/Instructions into Computer Systems. HB 397 imposes a
new requirement for an agency to input commands or instructions into its
computer system in certain circumstances when necessary to comply with
requests for electronic records, data or data fields. O.C.G.A. § 50-18-71(f). This
requirement appears inconsistent with the long-standing rule, retained in HB 397,
that an agency is not required to prepare new reports, summaries, or compilations
not in existence at the time of a request and with the case law interpreting this
13
Previously the Act contained few provisions related to electronic records. It did provide that on request, “records
maintained by computer must be made available by electronic means, including Internet access, where practicable,
subject to reasonable security restrictions to prevent access to nonrequested or nonavailable records.” See previous
version of O.C.G.A. § 50-18-70(g).
14
Deleting responsive records, including e-mails and texts, following the receipt of an Open Record Request is a
violation of the Act and may subject an individual or entity to the penalties discussed in Section I below.
15
In addition, as discussed more fully in Section C(2) of this Memo, the Open Meetings Act now specifically
excludes e-mail communications among board members from the definition of a meeting, which allows board
members to conduct business electronically without public oversight. To ensure the public is not adversely impacted
by this provision, such emails are expressly subject to disclosure under the Open Records Act and hospital
authorities may experience an increase in the number of requests for such communications as a result.
14
language.16 O.C.G.A. § 50-18-71(j). Specifically, HB 397 provides that an agency
is not permitted to refuse to produce electronic records, data, or data fields on the
grounds that either (i) exporting the requested data, or (ii) redacting exempted
information from it, "will require inputting range, search, filter, report parameters,
or similar commands or instructions into the agency’s computer system so long as
such commands or instructions can be executed using existing computer programs
that the agency uses in the ordinary course of business to access, support or
otherwise manage the records or data." O.C.G.A. § 50-18-71(f). The requirement
to input instructions such as search or report parameters into a computer system in
order to export data or data fields could certainly be interpreted to require an
agency to prepare new compilations or reports not in existence at the time of the
request.17 It is very likely that Georgia courts will be called upon to interpret this
new requirement and the steps necessary to comply with it.

Required Formats for Producing Electronic Records. HB 397 provides new
authority for requesters to specify the format in which electronic records must be
produced. HB 397 requires an agency to produce printouts of electronic records if
the requester prefers them to electronic copies. O.C.G.A. § 50-18-71(f). HB 397
also authorizes the requester to request electronic records in the format in which
the records are kept by the agency or in a standard export format if the agency’s
existing computer programs support such a format.18
In addition, while HB 397 provides that an agency may provide access to records
through a public website in lieu of providing separate printouts or copies of
requested records or data, the fact that all or part of the requested data is available
on the website does not relieve the agency of its obligation to produce such data
in the electronic format in which it is kept if the agency receives a request for this
specific format. O.C.G.A. § 50-18-71(h). For example, if a hospital provides
access to requested data in .pdf format on its website but maintains such data in a
searchable database on its computer system, these provisions could be interpreted
to prohibit the hospital from refusing to produce the searchable database if the
requestor specifically asks for it.
16
The Georgia Supreme Court has held that the Open Records Act "does not require a public agency or officer to
create or compile new records by any method, including the development of a computer program or otherwise the
use of a computer technician to search the agency's or officer's database according to criteria conceived by the
citizen making the request.” O.C.G.A. § 50-18-70(d); Schulten, Ward, & Turner v. Fulton DeKalb Hospital
Authority et. Al., 272 Ga. 725 (2000).
17
GHA staff testified in committee regarding this apparent discrepancy and the uncertainty raised by this language.
The bill's proponents responded that an agency is only required to input instructions or commands when they can be
executed using existing computer programs used in the ordinary course of business to access, support, or otherwise
manage the records or data. However, that fact does not address the discrepancy between these two provisions of the
Act. In addition, an existing software program used in the normal course of business for one purpose may
technically also be capable of exporting data or redacting data, and it is unclear the extent to which an agency will
now be required to use existing programs in new ways or to develop or retain new staff competencies or to contract
with outside entities in order to comply with Open Record Requests for electronic records.
18
This provision includes, as an example of a standard export format, a flat file electronic American Standard Code
for Information Interchange (ASCII) format. Id.
15
In addition, HB 397 provides that an agency that contracts with private vendors to
collect or maintain public records must ensure that the arrangement does not limit
public access to the records and that the vendor uses the same method of delivery
established by the agency or as otherwise provided for in the Act. Id.
E.
Georgia Records Act
HB 397 includes a new provision requiring that records must be maintained by agencies “to the
extent and in the manner” required by the Georgia Record Act, O.C.G.A. § 50-18-71(a). This
Act requires certain agencies to, among other things, develop record retention schedules in
accordance with requirements set out by the office of the Secretary of State, submit records to
the Secretary of State, and store certain records with the Secretary of State.
HB 397 initially required all agencies subject to the Open Records Act to comply with the
Georgia Records Act. However, GHA explained that hospitals are already subject to numerous
state and federal requirements regarding the retention of records and should not be required to
comply with the Georgia Records Act. To address these concerns, the bill was amended to
clarify that agencies must comply only “to the extent” they are already required to do so pursuant
to the terms of the Georgia Record Act. Hospital authorities are not subject to Georgia Records
Act and HB 397 does nothing to change this.19 While it may seem redundant to include a
requirement in HB 397 that seemingly does nothing more than restate a requirement that exists
elsewhere in the Code. Its inclusion in the Open Records Act gives the Attorney General the
authority to enforce non-compliance, an authority not available under the Georgia Records Act.
F.
Procedures Governing Requests for Records
1. Oral or Written Requests
HB 397 provides that requests may be made orally or in writing. O.C.G.A. § 50-18-71(b)(1)(B).
However, the enforcement provisions discussed in Section I below are not available to enforce
compliance or to punish noncompliance with the Open Records Act when a request is made
orally rather than in writing. O.C.G.A. § 50-18-71(b)(3). These provisions reflect a compromise
between governmental stakeholders who wanted to authorize an agency to refuse any oral
request because of the difficulties of tracking them, and first amendment advocates who insisted
on maintaining the right to make oral requests.
HB 397 requires that any agency that uses e-mail or fax in the ordinary course of its business to
also permit requesters to make written requests by email or fax in addition to any other method
the agency may choose to approve. O.C.G.A. § 50-18-71(b)(2).
19
The Georgia Records Act defines the term “Agency” as “any state office, department, division, board, bureau,
commission, authority, or other separate unit of state government created or established by law. O.C.G.A. § 50-1891. Hospital authorities are instrumentalities of their respective counties, not state authorities or units of state
government.
16
2. Designating One or More Open Records Officers
HB 397 authorizes agencies to designate one or more open records officers and to require that all
requests must be made to such individual(s). O.C.G.A. § 50-18-71(b)(1)(B).20 Any such
designation must be made in writing and the agency must notify the legal organ of the county in
which the agency’s principal offices reside of any such designation and must prominently
display such designation on its website. O.C.G.A. § 50-18-71(b)(2). When a person makes a
request to the agency for records, the agency must immediately provide such person notice of the
open records officer(s), either orally or in writing. Id.
If an agency requires that requests be made to a specifically designated open records officer in
accordance with the Act, then the three-day period for response to a written request discussed,
more fully below, will not being to run until the request is made in writing to such person. Id.
3. Timeframe for Responding to Request
Although GHA urged legislators to extend the "three-day rule" HB 397 retains the requirement
that agencies must respond to a request for public records within three business days of receipt of
a request. O.C.G.A. § 50-18-71(b)(1)(A). As noted above, if a public hospital has designated a
person to receive such requests, the three days do not begin to run until receipt of the request by
that person. O.C.G.A. § 50-18-71(b)(2). However, the absence or unavailability of the
designated agency officer cannot delay the response of the agency. O.C.G.A. § 50-1871(b)(1)(B).21
HB 397 requires that agencies both respond to a request and make available for inspection or
produce any non-exempt records that can be located within three business days. As discussed
more fully in Section G below, the initial response must also notify the requestor when the costs
of production will be more than $25.00.
When responsive records are located within three business days, and such records are exempt
from disclosure, either in whole or in part, the agency may withhold exempt records or redact
exempt portions of such records. The initial response must identify the specific Code section,
subsection, and paragraph for any exception applicable to records that can be located within
three business days. In addition, when responsive records exist but are unavailable within
business three days, the initial response must include a description of any such records and a
timeline for when such records will be available for inspection or coping. O.C.G.A. § 50-1871(b)(1)(A).
20
HB 397 lists the following individuals as eligible for such designation: the agency's director, chairperson or CEO,
however denominated; the senior official at any satellite office of the agency; a clerk specifically designated as the
custodian of records for the agency; or a duly designated open records officer of an agency.
21
Public hospitals that designate one or more public records officers should take steps to ensure there is a process in
place to deal with requests promptly when the person designated is not available. This process could be a forwarding
or screening mechanism or a separately monitored email address for record requests with backup review when the
designated officer is absent or otherwise unavailable to respond.
17
Where responsive records cannot be located within three business days, HB 397 now provides
agencies with additional time to identify any exemptions that may apply to such records. While it
may seem apparent that one cannot be expected to identify specific statutory exemptions that
may apply to records that have not yet been located, the Act previously failed to recognize this
fact and required agencies to identify all applicable exemptions related to the request within three
business days, whether or not such records could be located and reviewed within such time
frame.22
HB 397 also retains the provision that agencies are not required to produce records in response to
a request if such records did not exist at the time of a request.23
G.
Allowable Costs, Notification and Prepayment
HB 397 makes substantial changes in the Act related to the costs of production that an agency
may pass along to a requester, notification regarding fees and when prepayment may be required
before records are produced.
1. Allowable Costs
HB 397 reduces the allowable copying costs for letter or legal size documents from $.25 to $.10
per page. O.C.G.A. § 50-18-71 (c)(2). However, for documents that are not letter or legal size, an
agency may now charge the actual production cost. Id. For electronic records, the copying costs
are limited to the actual costs of the media on which the records are produced. Id.
Significantly, an agency may now charge a requester for reasonable redaction costs in addition to
search and retrieval costs. O.C.G.A. § 50-18-71(c)(1). Where other laws specifically authorize
fees for certified copies or other copies of records, such as the law governing the costs of medical
records, such laws continue to apply. Id. In all other instances, the charge for search, retrieval
and redaction “shall not exceed the prorated hourly salary of the lowest paid full-time employee
who, in the reasonable discretion of the custodian of the records, has the necessary skill and
training to perform the request; provided, however, that no charge shall be made for the first
quarter hour.” Id. The agency must use the most economical means reasonably available to
identify and produce responsive non-excluded records.
22
HB 397 deleted a provision in the Act that previously granted a one-time opportunity to amend or supplement the
original specification of an exemption within five days of discovery of an error or within five days of the filing of a
lawsuit to enforce the Records Act.
23
Certain advocates, including the press, wanted a provision that would require agencies to produce records created
within a specified time frame following the agencies receipt of a request. For example, if a request is made for a
finalized contract and the contract is not finalized until the day after the request is received, the agency is not
required to produce such contract unless another request is made after the contract is finalized.
18
2. Notification to Requester of Costs
HB 397 changes the previous requirements regarding when a requestor must be notified
regarding the costs of production and when an agency may require prepayment. Previously, an
agency was always required to notify the requestor within three business days of the estimated
cost of the copying, search, retrieval and other administrative fees associated with such request
regardless of the amount. HB 397 now requires such notification only when the costs will exceed
$25.00. O.C.G.A. § 50-18-71(d). In addition, the law previously allowed an agency to require
pre-payment as a condition of production regardless of amount. This is no longer the case.
Where an agency will seek costs greater than $25.00 but no more than $500.00, the agency must
notify the requestor within three business days of the costs and may delay search and retrieval
only until the requester agrees to pay, unless the requestor stated a willingness to pay a higher
amount in the request. Id.
3. Prepayment Requirements
Once a requester agrees to pay any amount that is not greater than $500.00, a hospital must
produce the requested records and assume the risks of non-payment. Only when the estimated
cost of production will be greater than $500.00 may an agency insist on prepayment before
beginning search, retrieval, review or production of the requested records. Id. However, HB 397
does provide that whenever a requester has not paid the lawfully incurred costs, the agency may
require pre-payment for all future requests from such requestor until the prior production costs
have been paid or the payment dispute is otherwise resolved. O.C.G.A. § 50-18-71(d).
H.
Records Exempted From Public Disclosure
Georgia law contains numerous exemptions that protect documents and other information from
public disclosure. Many of these exemptions, including the important protections for
commercially valuable plans, proposals and strategies of competitive advantage for hospital
authorities, are located outside of the Open Records Act.24 HB 397 makes no changes to this and
other exemptions located elsewhere in the Georgia Code.
However, HB 397 does amend a number of the exemptions set forth in the Act itself. Those most
likely to be of interest to hospitals are listed below. However, the list is not exhaustive and the
statute should be consulted for further guidance regarding exemptions. In addition, HB 397
retains the language providing that “[t]he Records Act is to be interpreted narrowly so as to
exclude from disclosure only that portion of a public record to which an exclusion is directly
applicable.” O.C.G.A. § 50-18-72(b). The custodian of a record is required to provide all other
portions of a record for public inspection and copying. Id.
24
The Hospital Authorities Law, O.C.G.A. § 31-7-75.2, creates exceptions from the Sunshine Laws to authorize a
hospital authority board to convene in executive session to discuss “any potentially commercially valuable plan,
proposal, or strategy that may be of competitive advantage in the operation of the authority or its medical facilities
and which has not been made public” and to protect the confidentiality of all related documents until such plan,
proposal or strategy has been either approved or rejected by the board.
19
1. Attorney-Client Privilege and Confidential Attorney Work Product
HB 397 amends the protections previously available for certain records subject to the attorneyclient privilege or that constitute confidential attorney work product. Specifically, an agency is
now required to disclose factual findings of an attorney conducting an investigation on its behalf
if the investigation does not pertain to pending or potential litigation, settlements, claims or
administrative proceedings or other judicial actions. Given that hospitals often use in-house or
outside legal counsel to conduct internal audits, compliance reviews and other types of
investigations, this change in the law would have been extremely damaging to hospitals by
requiring disclosure of these sensitive documents to whistleblowers and plaintiffs’ lawyers.
GHA successfully advocated for special exceptions that protect factual findings of an
attorney conducting an investigation on behalf of a hospital authority to ensure compliance
with federal or state law, regulations or reimbursement policies to the extent such findings
are subject to the attorney-client privilege or constitute confidential attorney work product.
O.C.G.A. § 50-18-72(a)(41) and (42).
2. Records for Applicants for CEO Positions
HB 397 amends the exemption for records which identify applicants or those being considered
for employment or appointment as executive head of an agency. Previously the Act included
language that required an agency, at least 14 calendar days prior to the meeting at which the final
action or vote is to be taken, to "release all documents which came into its possession with
respect to as many as three persons under consideration whom the agency has determined to be
the best qualified for the position and from among whom the agency intends to fill the position."
HB 397 has clarified that agencies are not required to affirmatively release such information
when no one has requested it. Now, within the same 14 day timeframe, all documents
"concerning as many as three persons under consideration whom the agency has determined to
be the best qualified for the position shall be subject to inspection and copying." In addition, the
underlined language above has been deleted and there is no longer any qualifying language
providing that the agency must intend to fill the position from among such persons in order for
their information to be subject to disclosure. HB 397 retains the prior language authorizing an
agency to give individuals being considered the right to decline further consideration rather than
having their identities and information revealed. O.C.G.A. § 50-18-72(a)(11).
3. Personal Information and Records Concerning Public Employees
HB 397 combines a number of separate exemptions from the previous law related to personal
information into two paragraphs, one related to personal information generally and the other
related to records concerning public employees. With respect to records of individuals generally,
exemptions apply for parts of public records that would reveal an individual's social security
number, mother's birth name, credit card or debit card information, bank account information,
utility account number, passwords, financial data or information, insurance or medical
information, personal e-mail address or cell number, date and month of birth, unlisted telephone
numbers and public utility, television, internet or phone accounts held by private customers. HB
397 retains a provision requiring the disclosure of social security numbers and birth dates of
20
individuals where the requestor or his legally authorized representative provides an affidavit
stating the information is sought for news gathering and reporting. O.C.G.A. § 50-1872(a)(20)(A). In addition, HB 397 retains the exceptions that require disclosure of the personal
information listed above under certain circumstances, such as disclosures to a court or law
enforcement officer and disclosures authorized by court order or to the individual to whom such
information relates. O.C.G.A. § 50-18-72(a)(20)(B).
With respect to records that specifically identify public employees or their jobs, titles or offices,
HB 397 exempts the same information listed above except that the employee's compensation by
a governmental agency is not exempted.25 However, a public employee’s home address and
home telephone number is exempt even if it is not unlisted, as is the identity of the public
employee's immediate family members or dependents.26 In addition, the provision discussed
above that authorizes the press to obtain social security numbers and birth dates does not apply to
records that identify public employees. O.C.G.A. § 50-18-72(a)(21).
4. Sealed Bids
HB 397 amends the previous exemption for engineers' cost estimates and pending, rejected or
deferred bids or proposals which were available only to certain delineated agencies. The
exemption now applies to all agencies subject to the Act and covers pending, rejected or deferred
sealed bids or sealed proposals as well as the detailed cost estimates related to them and
continues until the final award of the contract is made, the project is terminated or abandoned or
the agency takes a public vote regarding the sealed bid or sealed proposal, whichever comes first.
O.C.G.A. § 50-18-72(a)(10).
5. Insurance Underwriting Information
HB 397 includes a new exemption for “Records pertaining to the rating plans, rating systems,
underwriting rules, surveys, inspections, statistical plans, or similar proprietary information used
to provide or administer liability insurance or self-insurance coverage to an agency.” O.C.G.A. §
50-18-72(a)(45).
6. Records Relating to Pending Administrative Proceedings
HB 397 deletes an exemption that prevented a party to a pending administrative action under the
Administrative Procedure Act from using the Open Records Act to obtain information he or she
could not otherwise obtain through discovery. Prior O.C.G.A. § 50–18–70(e) prohibited a party
to most pending administrative proceedings from accessing public records pertaining to the
25
For purposes of this exemption, the term public employee is defined as any officer, employee, or former employee
of (i) the state or is agencies, departments or commissions; (ii) any county or city or its agencies, departments or
commissions; (iii) other political subdivisions of the state; (iv) teachers; or (v) early care and education programs.
Hospital authorities are considered instrumentalities of the counties but are not agencies, departments or
commissions of either the counties or the state. It is therefore unclear whether this exception applies to records
related hospital authority employees.
26
A careful reading of the exception related to records that contain individual private information reveals there is no
exception for home address. This was likely an unintentional omission.
21
subject matter of the proceeding without the prior approval of the presiding administrative law
judge.27
I.
Violations, Penalties and Fines
HB 397 maintains the provisions granting superior courts jurisdiction to enforce the provisions
of the Act. It also provides the Attorney General with authority to bring enforcement actions and
to seek civil or criminal penalties, or both. O.C.G.A. § 50-18-73. HB 397 increases civil
penalties for knowingly and willfully refusing to comply with required timeframes from $100 to
$1000 for the first violation and adds new language that creates a misdemeanor for "intentionally
making it difficult to obtain or review" records. O.C.G.A. § 50-18-74. Additional violations
within 12 months could subject a violator to “a civil penalty or criminal fine not to exceed
$2,500.00 per violation.” Destroying records could lead to criminal prosecution under a felony
statute that carries a penalty of imprisonment from 2-10 years.
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Although this provision was originally adopted at the behest of state agencies, hospitals sometimes used this
provision to their advantage when involved in an administrative proceedings (e.g., licensure, certificate of need or a
Medicaid appeal) and the agency or any other party filed an Open Records request for documents.
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