2021 Georgia Code
Title 50 - State Government
Chapter 18 - State Printing and Documents
Article 4 - Inspection of Public Records
§ 50-18-74. Penalty for Violations; Procedure for Commencement of Prosecution

1. Any person or entity knowingly and willfully violating the provisions of this article by failing or refusing to provide access to records not subject to exemption from this article, by knowingly and willingly failing or refusing to provide access to such records within the time limits set forth in this article, or by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation. Alternatively, a civil penalty may be imposed by the court in any civil action brought pursuant to this article against any person who negligently violates the terms of this article in an amount not to exceed $1,000.00 for the first violation. A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed. It shall be a defense to any criminal action under this Code section that a person has acted in good faith in his or her actions. In addition, persons or entities that destroy records for the purpose of preventing their disclosure under this article may be subject to prosecution under Code Section 45-11-1.
2. A prosecution under this Code section may only be commenced by issuance of a citation in the same manner as an arrest warrant for a peace officer pursuant to Code Section 17-4-40; such citation shall be personally served upon the accused. The defendant shall not be arrested prior to the time of trial, except that a defendant who fails to appear for arraignment or trial may thereafter be arrested pursuant to a bench warrant and required to post a bond for his or her future appearance.

(Code 1981, §50-18-74, enacted by Ga. L. 1999, p. 552, § 5; Ga. L. 2012, p. 218, § 2/HB 397.)

- The former Code section, relating to unlawful refusal to provide access to public records or to allow copying of such records, was based on Ga. L. 1982, p. 1789, § 1, and was repealed and reserved by Ga. L. 1992, p. 1061, § 10, effective April 6, 1992.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 139 (2012).

JUDICIAL DECISIONS

Attorney fees might be appropriate.

- Trial court erred in entering summary judgment for a county and a county manager in an employee's claim for attorney fees arising out of a Georgia Open Records Act (ORA), O.C.G.A. § 50-18-70 et seq., request as the employee showed that the ORA was violated as the manager did not respond to the request within the required three-day period; the case was remanded for a determination of whether the ORA violation was without substantial justification or whether special circumstances existed that counseled against awarding attorney fees. Wallace v. Greene County, 274 Ga. App. 776, 618 S.E.2d 642 (2005).

- Georgia Supreme Court affirmed the judgment of the Georgia Court of Appeals in Geer v. Phoebe Putney Health System, Inc., 350 Ga. App. 127 (2019), that held that Georgia's anti-SLAPP statute, O.C.G.A. § 9-11-11.1, could not be invoked to strike a counterclaim for attorney fees brought under the Open Records Act, O.C.G.A. § 50-18-73(b), in response to a suit to enforce a request under Georgia's Open Records Act. Geer v. Phoebe Putney Health Sys., 310 Ga. 279, 849 S.E.2d 660 (2020).

RESEARCH REFERENCES

ALR.

- Allowance of punitive damages in state freedom of information actions, 13 A.L.R.6th 721.

Construction and application of public domain doctrine allowing courts to disregard FOIA law enforcement exemption based on prior public release of requested records, 3 A.L.R. Fed. 3d 5.

Construction and application of public domain or official acknowledgment doctrine allowing courts to disregard FOIA exemption, other than law enforcement exemption, based on prior public release of requested records, 17 A.L.R. Fed. 3d 1.