IN THE COURT OF APPEALS
STATE OF GEORGIA
CASE NO. A17A0620
__________________________________________________
CONSUMER CREDIT RESEARCH FOUNDATION,
Appellant,
vs.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA and CAMPAIGN FOR ACCOUNTABILITY,
Appellees.
___________________________________________________
BRIEF OF APPELLEE CAMPAIGN FOR ACCOUNTABILITY
___________________________________________________

Henry R. Chalmers
Georgia Bar No. 118715
henry.chalmers@agg.com
Megan P. Mitchell
Georgia Bar No. 916934
megan.mitchell@agg.com
ARNALL GOLDEN GREGORY LLP
171 17th Street, NW, Suite 2100
Atlanta, Georgia 30363
(404) 873-8500 (phone)
(404) 873-8501 (fax)
Attorneys for Appellee Campaign for Accountability
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 TABLE OF CONTENTS
Table of Authorities ................................................................................................... i
Summary of Argument ..............................................................................................1
PART ONE—RESPONSE TO APPELLANT’S STATEMENT OF FACTS..........4
PART TWO—ARGUMENT AND CITATION OF AUTHORITY ........................5
A. The Plain Language of the Statute Itself Shows That the GORA
Exemptions Do Not Prohibit Disclosure Unless Explicitly Stated ...........7
B. Georgia Courts Have Not Held That The GORA Exemptions Are
Mandatory ...............................................................................................11
C. CCRF’s Public Policy Concerns Are Unfounded ...................................17
D. CCRF’s Proposed Interpretation is Unworkable ....................................20
E. Reference Graphic ...................................................................................21
CONCLUSION ........................................................................................................23
CERTIFICATE OF SERVICE ................................................................................24

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 TABLE OF AUTHORITIES
Page(s)
Cases
Bowers v. Shelton,
265 Ga. 247 (1995) ......................................................................................passim
Doe v. Bd. of Regents,
215 Ga. App. 684 (1994) ..................................................................16, 17, 18, 19
Hardaway Co. v. Rives,
262 Ga. 631 (1992) ......................................................................................... 8, 15
Harris v. Cox Enterprises, Inc.,
256 Ga. 299 (1986) ......................................................................................passim
Howard v. Sumter Free Press, Inc.,
272 Ga. 521 (2000) ............................................................................................. 16
Ins. Dep’t of State of Georgia v. St. Paul Fire & Cas. Ins. Co.,
253 Ga. App. 551 (2002) ................................................................................ 8, 10
Red & Black Pub. Co. v. Board of Regents,
262 Ga. 848 (1993) ...................................................................................7, 12, 16
Schick v. Board of Regents,
334 Ga. App. 425 (2015) ..............................................................................12, 16
Statutes
O.C.G.A. § 34-9-12(b) ............................................................................................. 10
O.C.G.A. § 48-7-60(a) ...................................................................................9, 13, 14
O.C.G.A. § 49-5-40(b) ............................................................................................... 9
O.C.G.A. § 50-18-70(a) ............................................................................................. 7
-i10237682

 O.C.G.A. § 50-18-71(a) ......................................................................................... 8, 9
O.C.G.A. § 50-18-71(d) ........................................................................................... 11
O.C.G.A. § 50-18-72.................................................................................................. 9
O.C.G.A. § 50-18-72(a) ............................................................................................. 2
O.C.G.A. § 50-18-72(a)(1) .................................................................................. 9, 14
O.C.G.A. § 50-18-72(a)(2) ...................................................................................... 14
O.C.G.A. § 50-18-72(a)(20)(A)…………………………………………………..19
O.C.G.A. § 50-18-72(a)(34) ..............................................................................10, 18
O.C.G.A. § 50-18-72(a)(35) ................................................................................ 5, 10
O.C.G.A. § 50-18-72(a)(36) ................................................................................ 5, 10
O.C.G.A. § 50-18-72(c)(2) ...................................................................................... 10
Other Authorities
Black’s Law Dictionary ............................................................................................. 8
Ga. Atty. Gen. Op. 97-20 ......................................................................................... 16
Ga. Atty. Gen. Op. U2000-4 ..............................................................................16, 18

-ii10237682

 Summary of Argument
Appellee Campaign for Accountability (“CfA”) respectfully submits that
this Court should affirm the trial court’s ruling because the Georgia Open Records
Act1 does not prohibit state agencies from exercising discretion to release records
to the public in those instances in which disclosure is not prohibited by another
law, rule, or regulation. Stated differently, even where state agencies may
otherwise withhold public records pursuant to an exemption within the Open
Records Act (a “GORA exemption”), the GORA exemption does not strip state
agencies of the discretion to instead release the public record where the law does
not specifically prohibit disclosure (such as laws that prohibit disclosure of records
that would invade personal privacy or violate some other state or federal law if
released to the public).
Thus, CfA agrees with Appellant Consumer Credit Research Foundation
(“CCRF”) that the public is not entitled to receive all government records. The
General Assembly included in the Act more than 50 exemptions to the Act’s
mandatory disclosure requirements for the express purpose of allowing state

1

The Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., is referred to
herein as the “Open Records Act,” the “Act,” or the “GORA.”
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 agencies to refuse records requests and thereby avoid public disclosure of certain
records. For those records, “[p]ublic disclosure shall not be required[.]” O.C.G.A.
§ 50-18-72(a). Accordingly, when a document is subject to one of the GORA
exemptions, a requesting party can never force a state agency to release the
document (thereby alleviating CCRF’s misplaced concern that sensitive
information will be without protection unless this Court overrules the trial court).
Not requiring disclosure, however, differs significantly from prohibiting
disclosure. The language of the Open Records Act and cases interpreting the
statute make clear that disclosure of public records otherwise subject to the Act is
prohibited only when: (a) the language of the GORA exemption also contains an
express prohibition against disclosure; or (b) an independent law or rule bars
disclosure; or (c) a personal privacy interest bars disclosure. These three categories
of non-discretionary prohibitions cover a wide variety of public records, including
those records containing the types of information (like jurors’ personal information
or home security codes) that CCRF incorrectly argues would be subject to
mandatory disclosure if its position does not prevail. To the contrary, such records
are protected from disclosure by independent privacy laws or other bars on
disclosure, which is entirely consistent with Appellees’ position in this appeal.
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 By contrast, in cases where a GORA exemption from the Act’s mandatory
disclosure exists, but an express statutory or privacy prohibition is absent, as here,
a state agency may, in its discretion, choose to release the requested public records
in response to an Open Records Act request. Alternatively, it may choose to
withhold them. CCRF’s position—that all of the GORA exemptions require nondisclosure—is contrary to the plain language of GORA and would create a
dangerous precedent. Private parties, upon the filing of a GORA request,
effectively would be able to gag a state agency and shut down its disclosure of
public records, even when the agency determines that disclosure is in the public’s
best interest, or necessary for public safety, or warranted to protect and defend the
integrity of our public institutions.2
This case is a perfect example of the dangerous precedent CCRF would have
this Court set. In its Open Records Act request, CfA implicitly raised questions
regarding academic bias at Kennesaw State University (“KSU”) as a result of
undue influence by CCRF in the research process. (R-26.) Rather than allow KSU
2

For the Court’s reference, CfA has prepared a graphic that illustrates the
conceptual interplay among: (1) GORA’s mandatory disclosure requirements; (2)
the prohibition on disclosure found in certain exemptions and independent statutes
or laws; and (3) those records whose disclosure is left to an agency’s discretion
under a GORA exemption. (See Section E below.)
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 and the Board of Regents of the University System of Georgia (“Board of
Regents”) to demonstrate the integrity of KSU’s work by releasing the requested
communications, CCRF seeks to bind the government’s hands and force it to stand
by silently, despite the fact that CCRF has never asserted a valid personal privacy
interest or any other recognized prohibition to prevent disclosure in this case.
CCRF’s own undefined interests in preventing government transparency and
denying the public access to public records directly contravenes the Board of
Regents’ expressed desire for transparency and openness in the public’s interest.
Yet CCRF argues that the GORA exemptions unconditionally shield disclosure
and trump the public interest. This Court should acknowledge the Board of
Regents’ discretion to decide whether or not to release public records when their
disclosure is not otherwise prohibited. Thus, CfA respectfully requests that this
Court affirm the judgment below.
PART ONE—RESPONSE TO APPELLANT’S STATEMENT OF FACTS
CfA does not contest the accuracy or completeness of CCRF’s statement of
facts.

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 PART TWO—ARGUMENT AND CITATION OF AUTHORITY
CfA agrees that a de novo review standard applies to this appeal.
CfA further submits that the Court need not consider CCRF’s second
enumeration of error, because CfA does not contest, for purposes of this appeal,
that the records it requested are subject to the exemptions set forth in O.C.G.A. §§
50-18-72(a)(35)-(36).
The heart of this appeal is CCRF’s first enumeration of error. Despite
Appellant’s posturing, the trial court did not hold that government agencies have
“unfettered” discretion with respect to the Open Records Act exemptions
(emphasis added). Instead, the trial court held only that the GORA exemptions—
specifically those contained in O.C.G.A. § 50-18-72(a)(35) and (36)—vest in the
government discretion to disclose or withhold records where disclosure otherwise
would be mandatory. (R-695-99). The law in Georgia remains that a state agency’s
discretion is nonetheless constrained by many other factors, not least of which are
(1) laws, rules, or regulations within or outside of the Open Records Act that
explicitly prohibit disclosure of public records; and (2) the courts’ ability to enjoin
release of public records containing an individual’s personal information. See also
Section E below.
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 Nor do Appellees contend that state agencies have discretion “whether to
apply” the exemptions, as CCRF claims in its first enumeration of error. State
agencies are obligated to release public records unless an exemption or other
prohibition applies. And the question of whether an exemption applies is not
subject to the state agency’s discretion (as demonstrated by the numerous cases in
which courts have corrected state agencies who erroneously claimed that an
exemption applied where it did not). Rather, whether an exemption applies is
determined by the Open Records Act statute. In cases where an exemption applies
and no statute, regulation, or privacy concern dictates otherwise, a state agency has
discretion to release public records (as it would have done but for the exemption),
or to employ the exemption as a basis to withhold the records.
CCRF’s first enumeration of error (and its brief) also misstates the status of
the law regarding the withholding of public records following a request under the
Open Records Act. No court has held that the Open Records Act mandates that
records be withheld simply because they are subject to a GORA exemption.
Indeed, the trial court properly recognized this in its Order. (R-695-99.)

-610237682

 A.

The Plain Language of the Statute Itself Shows That the GORA
Exemptions Do Not Prohibit Disclosure Unless Explicitly Stated.

The General Assembly knows how to say what it means when it drafts a
statute. The Open Records Act contains a clear preference for disclosure of public
records, with the General Assembly declaring that:
[T]he strong public policy of this state is in favor of open
government; that open government is essential to a free,
open, and democratic society; and 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.
O.C.G.A. § 50-18-70(a); accord Red & Black Pub. Co. v. Board of Regents, 262
Ga. 848, 854 (1993) (“We are mindful that openness in sensitive proceedings is
sometimes unpleasant, difficult, and occasionally harmful. Nevertheless, the policy
of this state is that the public’s business must be open, not only to protect against
potential abuse, but also to maintain the public’s confidence in its officials”).
Accordingly, “there is a strong presumption that public records should be made
available for public inspection without delay,” and courts must “broadly construe
[the Act] to allow the inspection of governmental records.” O.C.G.A. § 50-1870(a). Moreover, “exceptions set forth in this article, together with any other

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 exception located elsewhere in the Code, shall be interpreted narrowly to exclude
only those portions of records addressed by such exception.” Id.; see also
Hardaway Co. v. Rives, 262 Ga. 631, 634 (1992).
“The cardinal rule of statutory interpretation is to ascertain the legislature’s
purpose in enacting a statute and then construe the statute to effect that purpose,
avoiding interpretations that do not square with common sense and sound
reasoning.” Ins. Dep’t of State of Georgia v. St. Paul Fire & Cas. Ins. Co., 253 Ga.
App. 551, 552 (2002) (internal citations and quotations omitted). Further, “if the
statutory language is plain and unequivocal, then ‘judicial construction is not only
unnecessary but forbidden.’” Id. (quoting Glover v. State, 272 Ga. 639, 640
(2000)).
As applied here, the statutory language supports the approach of the trial
court. The Act first provides that “[a]ll public records shall be open for personal
inspection and copying, except those which by order of a court of this state or by
law are specifically exempted from disclosure.” O.C.G.A. § 50-18-71(a).
“Exempt” means “free or released from a duty or liability to which others are
held.” Black’s Law Dictionary (10th ed. 2014). Thus, this language is properly
interpreted to mean only that, if requested records are subject to one of the GORA
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 exemptions, a state agency is freed from a requirement that it release the records in
response to a GORA request. Put differently, mandatory disclosure of those
records is not required, and the public does not have the same automatic right to
see them as it has with public records that are not subject to a GORA exemption.
The phrase “exempted from disclosure” in the context of O.C.G.A. § 50-18-71(a)
cannot reasonably be interpreted to state a requirement that disclosure is
affirmatively prohibited.
The exemptions section of the Act, O.C.G.A. § 50-18-72, likewise provides
that “public disclosure shall not be required” for the types of records outlined in
O.C.G.A. § 50-18-72(a)(1) – (50). If the legislature had meant for disclosure of all
exempted records to be prohibited (as CCRF claims) it would have said just that. It
did not, however, and “shall not be required” means something entirely different
from “shall be prohibited.” When it intends to prohibit the disclosure of
information by a public agency, the General Assembly makes that intent clear. See,
e.g., O.C.G.A. § 48-7-60(a) (stating that “it is unlawful for” a state officer,
employee, or agent to divulge income tax information); O.C.G.A. § 49-5-40(b)
(“Each and every record concerning reports of child abuse and child controlled
substance or marijuana abuse [in the government’s custody] is declared to be
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 confidential, and access thereto is prohibited …”); O.C.G.A. § 34-9-12(b)
(“[Workers compensation records that] refer to accidents, injuries, and settlements,
shall not be open to the public …”). Even within the exemptions themselves, if the
legislature wanted to prohibit disclosure of certain records, it added explicit
language making that clear. See, e.g., O.C.G.A. § 50-18-72(c)(2) (stating that
exhibits “tendered to the court as evidence in a criminal or civil trial shall not be
open to public inspection without the approval of the judge”); id. § 50-18-72(a)(34)
(“…the agency shall withhold the records …”).
If the General Assembly had intended to impose an outright bar on the
release of all records falling within the GORA exemptions, it would have simply
said “disclosure is unlawful” or “disclosure is prohibited” for the covered records.
See Ins. Dep’t of State of Georgia, 253 Ga. App. at 554 (“If the legislature had
intended to restrict [the types of action at issue in the case], then it would have said
so, as it did elsewhere in the unfair trade practices chapter”). The General
Assembly, however, chose not to add such language to O.C.G.A. § 50-1872(a)(35) and (36).
Perhaps most tellingly, the General Assembly, in drafting GORA, also
provided that, “[i]n any instance in which an agency is required to or has decided
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 to withhold all or part of a requested record, the agency shall [follow certain notice
procedures].” O.C.G.A. § 50-18-71(d) (emphasis added). If an agency may
“decide” to withhold requested records, it necessarily has the discretion to release
them instead, for what is the exercise of “discretion” but the act of “deciding”? For
all of these reasons, the plain language of the statute makes clear that the GORA
exemptions “free or release[]” the government from the Act’s requirement of
mandatory disclosure, but they do not prohibit a state agency from exercising
discretion to release the exempt documents absent other prohibition.
B.

Georgia Courts Have Not Held That The GORA Exemptions Are
Mandatory.

Contrary to CCRF’s arguments, no Georgia court has held that the
exemptions within the Open Records Act contain a blanket prohibition on
disclosure. And no Georgia court has addressed the question before this Court:
whether state agencies may exercise discretion to release records that fall under a
GORA exemption when no other prohibition on disclosure exists. That is partly
because, as one might expect, the vast majority of Open Records Act cases arise in
a wholly different posture, following a state agency’s attempt to withhold records

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 when a private plaintiff has demanded their disclosure.3 This radically different
posture makes those cases inapposite.
The few cases CCRF cites to support its argument that the GORA
exemptions are mandatory do not actually go that far. Instead, those cases are
consistent with Appellees’ position that disclosure is only prohibited when the law
expressly says so. In Bowers v. Shelton, 265 Ga. 247 (1995), an individual,
Shelton, filed a complaint for injunctive relief against the Georgia Attorney
General to prevent disclosure of records related to the state’s criminal investigation
of his failure to pay state income tax. See id. at 247-48. Responding to the state’s
claim that the Open Records Act does not provide a private right of action to enjoin
disclosure, the Court cited Harris v. Cox Enterprises, Inc., 256 Ga. 299 (1986) for
the proposition that “this Court has determined that the Georgia Act mandates the
nondisclosure of certain excepted information.”4 Bowers, 265 Ga. at 248.

3

See, e.g., Schick v. Board of Regents, 334 Ga. App. 425 (2015); Red & Black
Publishing Company, Inc. v. Board of Regents, 262 Ga. 848 (1992).
4

Harris does not stand for the proposition that CCRF asserts. As discussed
more fully below, the Court was not making a sweeping statement as to all
exceptions. And CfA does not dispute that nondisclosure is mandatory when
explicitly required by state or federal law and/or where personal privacy concerns
are implicated. Thus, CfA’s position aligns with the decision in Harris.
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 However, the Court did not state that all exempted records were prohibited from
disclosure. See id. (stating only that the Act mandates the nondisclosure of certain
information). The Court then found that a private citizen, such as Shelton, has
standing to sue to prevent disclosure. See id. at 249.
Having answered the standing question, the Bowers Court then addressed
whether the records at issue could be disclosed. The Court aptly acknowledged the
distinction between prohibited and discretionary disclosure stating, “The Act
allows any citizen… to inspect public records of an agency, except those which by
court order or by law are prohibited or specifically exempted from public
inspection. Id. (emphasis added). Noting that the “relevant state law relating to
confidentiality of tax information is O.C.G.A. § 48-7-60(a),” the Court recognized
that the Open Records Act “has in no manner abrogated the mandate of O.C.G.A. §
48-7-60(a) that tax information be maintained inviolate.” Id. at 250. As a result, the
Court held that the confidential tax information contained in Shelton’s file could
not be released in response to an Open Records Act request. Id.
The decision turned entirely on a prohibition found outside of the Open
Records Act. At no time did the Bowers Court consider any of the GORA
exemptions, nor did it even address whether a GORA exemption creates an
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 outright ban on disclosure, or whether it merely releases a government agency
from mandatory disclosure, thereby placing disclosure in the agency’s discretion,
unless a separate law prohibits it (e.g., O.C.G.A. § 48-7-60(a)). Accordingly,
Bowers does not support CCRF’s blanket claim that withholding documents
subject to a GORA exemption is mandatory.
A closer look at Harris (the case on which the Bowers Court relied when it
stated that certain exceptions “mandate” nondisclosure) further illustrates that the
Act anticipates some exemptions to mandate non-disclosure while others do not. In
Harris, the government argued that the requested record (a Georgia Bureau of
Investigation report) contained information that would violate certain “individuals’
rights to privacy,” and that certain parts of the report “cannot be disclosed because
they are required by the federal government to be kept confidential.” 256 Ga. at
300.
The Court recognized that the first two exemptions in the Act, O.C.G.A. §
50-18-72(a)(1) and (2), protect records “[s]pecifically required by federal statute or
regulation to be kept confidential,” and records “the disclosure of which would be
an invasion of personal privacy.” 256 Ga. at 301. The Harris Court, however,
never held that all of the Act’s exemptions are mandatory. It simply acknowledged
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 that, under subsections (a)(1) and (a)(2), “[t]he language of the statute mandates
the maintenance of confidentiality of records required by the federal government to
be kept confidential or to medical or veterinary records and similar files, the
disclosure of which would be an invasion of personal privacy,” both categories
being subject to separate prohibitions recognized by, and found outside of, the Act.
Harris, 256 Ga. at 301. Following this analysis, the Court remanded for a
determination of whether the requested report was subject to either exemption.
The Harris Court’s reasoning, then, is entirely consistent with Appellees’
position that non-disclosure of public records may be mandated by independent
statutes or rules outside of the Act, including the law of privacy.5 And certain
GORA exemptions themselves expressly prohibit disclosure. But neither Bowers
nor Harris stands for the proposition that all the GORA exemptions within the Act
are, standing alone, mandatory. Those cases simply recognized the uncontroversial

5

As courts have recognized, a broad range of information is protected from
disclosure based on privacy interests. See Harris, 256 Ga. at 301 (reasoning that
“those portions of public records which invade personal privacy may not be
disclosed”); Hardaway Co. v. Rives, 262 Ga. 631, 633 (1992) (reasoning that
courts may prohibit disclosure when “there is a claim that disclosure of the public
records would invade individual privacy”).
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 notion that a state agency cannot release records when doing so would violate a
federal or state statute or a recognized and protected individual privacy interest.
CCRF also contorts the holding of Howard v. Sumter Free Press, Inc., 272
Ga. 521, 522 (2000), a case involving a sheriff’s refusal to produce documents
despite their not being subject to any exception. Against this procedural posture, it
is not surprising that the Court reasoned that “compliance with the Act is not
discretionary, but mandatory.” Id. That simply means that a state agency does not
have discretion to ignore the Open Records Act and withhold public records that
are not covered by any exemption. That holding, of course, says nothing about
whether a state agency has discretion to release documents that do fall within a
GORA exemption.6

6

The Attorney General opinions CCRF cites, Ga. Atty. Gen. Op. 97-20 and
Ga. Atty. Gen. Op. U2000-4, are two more examples of an accepted proposition: if
a state agency determines that requested records fall within a GORA exemption, it
can withhold them. The opinions do not state that the records must be withheld,
and the Attorney General was not asked to opine on that question.
The Board of Regents cases CCRF cites also miss the mark. (See pp. 13-14
of Appellant’s opening brief, citing Doe v. Bd. of Regents, 215 Ga. App. 684
(1994), Schick v. Bd. of Regents, 334 Ga. App. 425 (2015), and Red & Black
Publishing Co., Inc. v. Bd. of Regents, 262 Ga. 848 (1993).) In Doe, like Bowers
and Harris, the Court held that some disclosure was prohibited by a non-GORA
statute, Georgia’s rape victim confidentiality statute. See 215 Ga. App. at 687. And
in Schick and Red & Black, the Board of Regents resisted disclosure based upon a
-1610237682

 C.

CCRF’s Public Policy Concerns Are Unfounded.

As previously explained, the Open Records Act makes clear that public
records covered by a GORA exemption are not automatically available to the
public upon request. State agencies have every right to refuse to release those
protected documents, and they often do. Indeed, if KSU or the Board of Regents
had determined that the threat of competitive disadvantage from releasing
research-related communications in response to CfA’s request outweighed the
benefits and the public interest served by disclosing them, it could have simply
declined CfA’s request and withheld the records, as contemplated by the Act,
without repercussion.
What is more, there is no evidence that state agencies take the release of
public records lightly. Where disclosure could harm a private individual or entity,
agencies give the interested parties advanced notification (as demonstrated here
when KSU notified CCRF that it planned to release the requested
communications). (R-32; R-93-94.) Similarly, in Doe, the “University’s Office of

GORA exemption. Cases in which a state agency resists disclosure do not answer
the question presented by this appeal: whether a state agency may release
documents even when a GORA exemption applies.
-1710237682

 Legal Affairs contacted plaintiff, indicating that it intended to release the requested
information.” 215 Ga. App. at 685; see also O.C.G.A. § 50-18-72(a)(34) (requiring
state agencies to notify private entities who have submitted trade secrets to the
agency to “notify the entity … of its intent to disclose the information”).
Attorney General opinions also recognize the safeguards already in place to
prevent disclosure of public records that should properly be withheld. See, e.g., Ga.
Atty. Gen. Op. U2000-4 (recognizing, in response to a question about whether the
utility billing and payment records of officers or employees of a publicly owned
utility were subject to disclosure under the Act, that “[i]f there is a concern that the
records should not be disclosed for some legitimate reason, the [state agency]
could provide notice to the person or persons involved … [and if] the individuals
involved then wished to raise a claim of an invasion of privacy, those persons
could then seek judicial intervention to prevent the disclosure”). There simply is no
indication in the record or case law that a state agency would release documents
that might otherwise fall within a GORA exemption arbitrarily or on a whim
without advanced warning to the affected parties.
Similarly, CCRF’s claim that Appellees would have the Court “eliminate the
right to sue ‘to enforce compliance’ with the Open Records Act” is flat wrong.
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 This appeal has no effect on a private party’s right to sue to prevent disclosure of
public records that are prohibited from disclosure. As has always been the case, the
party seeking to prevent disclosure need only identify an actual prohibition on
disclosure, rather than simply claiming, as CCRF asserts here, that the records are
subject to a GORA exemption. The plaintiffs in Doe and Bowers did the former,
where such prohibitions existed. In contrast, CCRF cites to no prohibition, relying
instead entirely on its unprecedented and erroneous contention that two GORA
exemptions, standing alone, mandate non-disclosure.
CCRF finally suggests that, if the trial court’s order is upheld, rouge
government agencies would release law enforcement records, including the
identities of confidential sources; jury list data, including names, dates of birth,
addresses, and social security numbers; home security codes collected by local
governments for neighborhood watch programs; public employees’ personal
information; and records that would compromise public safety. (See Appellant’s
opening brief at pp. 19-20.) At the outset, social security numbers and other
personal information must be redacted and would never be released in the ordinary
course of responding to an Open Records Act request. See O.C.G.A. § 50-1872(a)(20)(A). Other types of sensitive personal information, moreover, are
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 protected by the separate privacy laws that serve as a bar against disclosure, as
discussed above. The remaining potentially harmful documents and information
are still exempt from mandatory disclosure and remain so. The “parade of
horribles” CCRF lists are thus nothing more than an unsubstantiated scare tactic.
D.

CCRF’s Proposed Interpretation is Unworkable.

CCRF’s proposed interpretation of the Act would lead to absurd results and
place unworkable and nonsensical restrictions on government agencies, all to the
public’s detriment. State agencies routinely release information that would, in the
Open Records Act context, be subject to an exemption (like information about an
at-large suspect in a criminal case while an investigation is still underway, or, as
here, information designed to assure the public of the integrity of a public
university’s actions). Indeed, it is squarely in the public’s interest that they do so.
Under CCRF’s interpretation of the statute, if a state agency were to receive an
Open Records Act request for the same information, the state agency would
suddenly be barred from releasing the information and non-disclosure would be
mandatory. Such an outcome is nonsensical, inconsistent with the purpose of the
Open Records Act, and contrary to the public’s interest.

-2010237682

 A wide variety of sensitive public records enjoy an absolute protection from
disclosure as a result of privacy prohibitions and other state and federal laws. But
the fact that certain documents fall within a GORA exemption, without more, does
not mean that a state agency has no discretion to release the requested records. The
research-related exemptions at issue in this case contain no such prohibition, and
the trial court properly concluded that the Board of Regents could exercise its
discretion to choose to release the requested records.
E.

Reference Graphic

The conceptual interplay between GORA’s mandatory disclosures, the
prohibitions on disclosure found in other statutes or laws, and the discretionary
disclosure for records subject to a GORA exemption where no prohibition exists
elsewhere is presented in graphic form on the following page:

-2110237682

 Mandatory Disclosure
O.C.G.A. § 50-18-71

Privacy
Prohibitions
GORA
Exemptions

Statutory
Prohibitions

Legend:
Mandatory disclosure
Discretionary disclosure
Disclosure prohibited

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 CONCLUSION
For the foregoing reasons, CfA respectfully requests that the Court affirm
the judgment below.
Respectfully submitted this 3rd day of January, 2017.
/s/ Henry R. Chalmers
Henry R. Chalmers
Georgia Bar No. 118715
henry.chalmers@agg.com
Megan P. Mitchell
Georgia Bar No. 916934
megan.mitchell@agg.com
ARNALL GOLDEN GREGORY LLP
171 17th Street, NW
Suite 2100
Atlanta, Georgia 30363
(404) 873-8500
Attorneys for Appellee Campaign for
Accountability

-2310237682

 CERTIFICATE OF SERVICE
This is to certify that on January 3, 2017, I electronically filed the foregoing
BRIEF OF APPELLEE CAMPAIGN FOR ACCOUNTABILITY with the
Clerk of Court using the electronic case management system. I further certify that
the following counsel of record were served by U.S. Mail, postage prepaid,
properly addressed as follows:

Jennifer Colangelo
Assistant Attorney General
Georgia Department of Law
40 Capitol Square, SW
Atlanta, GA 30334

Thurbert E. Baker
Nathan L. Garroway
Jeremy T. Berry
Mark A. Silver
Dentons US LLP
303 Peachtree Street, NE, Suite 5300
Atlanta, GA 30308

This 3rd day of January, 2017.
By: /s/ Henry R. Chalmers
Henry R. Chalmers
Attorney for Appellee Campaign for
Accountability

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