Open Government Frequently Asked Questions
Are Homeowner’s Associations subject to the ORA or the OMA?
Homeowner’s Associations are not subject to the ORA or OMA. Associations are privately funded by Homeowners who pay association dues, and are not governmental or quasi-governmental agencies that fall within the coverage of the OMA or the ORA.
Can I speak at public meetings?
The OMA does not grant a right to speak at meetings. The OMA does grant a right to attend meetings. It is the local government’s choice about whether to allow public comment at open meetings. Generally, there is a process in place to request to speak at a meeting; the city or county clerk is probably the best person to ask what how to request to be placed on the agenda or otherwise make a public comment at a meeting.
What meetings are "open"?
Any gathering of a quorum of the members of a governing body of an agency, or any committee or subcommittee of that governing body, where any public matter, official business or policy of the agency is to be discussed, presented, formulated or at which official action is to be taken, including even the making or consideration of recommendations, is a meeting required to be open under Georgia law. However, if a quorum of a governing body gathers solely for the purpose of making inspections of physical facilities under their jurisdiction or for the purpose of meeting with other governing bodies, officers, agents, or employees of other agencies at places outside of the geographical jurisdiction of the agency and at which no final official action is to be taken, such meetings are not covered under the Open Meetings Act.
O.C.G.A. § 50-14-1(a)(2).
What does it mean to have a meeting be "open"?
The Open Meetings Act provides that an agency may not hold a meeting covered under the Act without having provided due notice of the time and place of the meeting, a preliminary agenda of the meeting and the publication of summary and final minutes of the meeting afterwards. Proper notice includes the posting of a written notice at the regular place of meeting at least 24 hours in advance of the meeting and notice to the local legal organ in which sheriff's sales are published and other media who have requested such notices. The Act does not require that actual legal advertisements be taken out in a newspaper nor does it provide for an opportunity for a person to speak during a meeting, although both of these items reflect a better practice in assuring public involvement in their government operations.
O.C.G.A. § 50-14-1(d).
How is a meeting "closed"?
A meeting may only be closed by the majority vote of a quorum of the body. The minutes of the meeting must reflect the names of all members present and the names of those voting to close the meeting. If only a portion of a meeting needs to be closed, the rest of the meeting must be open. When a meeting is closed, the presiding officer must execute an affidavit stating why the meeting was closed and attesting that only matters properly kept confidential were discussed during the closed portion of the meeting. That affidavit must be filed with the minutes of the meeting.
O.C.G.A. § 50-14-4.
What are the remedies for a violation of the Open Meetings Act?
Actions and agency decisions made in violation of the Open Meetings Act are void. Expenditures of funds and resources resulting from a violation of the Act likewise may be improper and possibly illegal. Any person may file a petition in superior court to enforce the requirements of the Act. A lawsuit to undo an action wrongfully taken in a closed meeting must be filed within 90 days of when the meeting was held or, if challenging a zoning decision, within the time specifically allotted for zoning matters.
If a person knowingly and willfully conducts or participates in a closed meeting that should have been open, they can be found guilty of a misdemeanor and fined up to $500.
O.C.G.A. § 50-14-1(b), § 50-14-4, § 50-14-5.
What is a public record that is covered under the Open Records Act?
Under the Act, a "public record" includes all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency. A "public record" also can include items received or maintained by a private person or entity on behalf of a public office or agency where the records are received or maintained by a private person, firm, corporation or other private entity in the performance of a service or function for or on behalf of a public agency. It does not include any computer program or computer software used or maintained in the course of operation of a public office or agency.
O.C.G.A. § 50-18-70(a), § 50-18-72(e)(2).
How long does an agency have to produce records?
An agency must produce records responsive to a request within three business days absent exceptional circumstances. If the records cannot be produced within three business days, the agency must inform the requestor, in writing, when the records will be produced, the cost to produce the records (if any), and, if applicable, the specific legal authority exempting the records from disclosure, by Code section, subsection, and paragraph. The agency can only add to or amend this legal authority cited as the basis for exemption only once if such amendment is within five days of discovery of an error.
O.C.G.A. § 50-18-72(h).
How much can I be charged for a record obtained through the Open Records Act?
A public agency must use the most economical means available for providing copies of a public record. This means that records maintained by computer shall be made available where practicable by electronic means, including Internet access (subject to reasonable security restrictions preventing access to nonrequested or nonavailable records.) A record's custodian can collect a reasonable fee for the search, retrieval and other direct administrative costs for complying with an Open Records request. The hourly charge for these costs cannot exceed the salary of the lowest paid full-time employee who, in the discretion of the custodian, has the necessary skill and training to perform the request. No charge can be made for the first 15 minutes of these actions. When copies are provided, an agency may charge a uniform copying charge not to exceed 25 cents a page.
O.C.G.A. § 50-18-71.
What personal information contained in public records is subject to the Open Records Act?
There are many exceptions provided in Georgia law that protect the privacy of personal information. Some of these prevent disclosure of such information contained in records subject to the Open Records Act. In addition, the Act includes exceptions preventing disclosure of, among other items:
Social Security numbers
bank account information
credit card and debit card account information
mother's birth name
month and day of birth
the home addresses and telephone numbers of public employees, judges and law enforcement officers
Records containing such information still must be produced, but the protected information is redacted from the produced records.
O.C.G.A. § 50-18-72(a)(11.1), (11.3), (13) & (13.1).
What is "redaction," when does it apply, and what costs may be charged for redaction?
"Redaction" is the striking out of specific information from a record. It is usually shown by blacking out the information in the record. Some computer generated records may be redacted by downloading or printing out designated fields of information while excluding other fields, such as Social Security numbers.
Records subject to the Open Records Act but that contain some information either not subject to the Act or required to be excluded from production under the Act are produced with the exempted information redacted. An agency may not refuse to produce records because they contain some information not subject to the Open Records Act.
An agency may charge, however, for the cost of redaction. Such cost is to be based on the cost associated with the lowest paid employee capable of properly performing the redaction. The agency should estimate this cost in advance, if it is going to charge such costs, and notify the requestor in advance giving him or her the opportunity to accept such costs or withdraw or modify his or her records request.
May an agency require prepayment for compliance with an Open Records Act request?
The opinion of the Attorney General is that prepayment may not be required for an agency to comply with the Open Records Act except under the specific circumstances described in the Act. An agency's obligations under the Act are automatic and set by law; the law makes no provision allowing an agency to condition its compliance on prepayment unless the requester has failed to pay the legal incurred costs of a previous request or unless the estimated cost of the request exceeds $500.
An agency does have the right to collect for its proper costs in collecting and producing records, however. It may proceed directly to collection measures, without the need for a prior court adjudication, if costs are not paid.
In situations where costs are sought by an agency, it must estimate the costs and notify the requestor in writing of the estimated cost within three business days of receipt of the request. Such notice gives the requestor the opportunity to modify or withdraw his or her request if he or she does not wish to incur the charges. Ordinarily, the agency need not begin immediately collecting such records unless and until it knows the requestor agrees to the costs.
Can I insist that reports or other documents be created or put in a particular format for me?
No. A public officer or agency is not required to prepare reports, summaries, or compilations not in existence at the time of the request. However, where a requestor merely asks for a printout of information contained in an electronic record and no significant programming is required for the production of that information, then that information is subject to being produced in response to an Open Records request.
O.C.G.A. § 50-18-70(d); 1989 Op. Att'y Gen. 89-32.
What entities are covered by the Open Records and Open Meetings Acts?
Both of these acts apply to:
- Every state department, agency, board, bureau, commission, public corporation, and authority;
- Every county, municipal corporation, school district, or other political subdivision of this state;
- Every department, agency, board, bureau, commission, authority, or similar body of each such county, municipal corporation, or other political subdivision of the state;
- Every city, county, regional, or other authority established pursuant to the laws of this state; and
- Any nonprofit organization to which there is a direct allocation of tax funds made by the governing authority of any agency as defined in this paragraph and which allocation constitutes more than 33 1/3 percent of the funds from all sources of such organization; provided, however, this subparagraph shall not include hospitals, nursing homes, dispensers of pharmaceutical products, or any other type organization, person, or firm furnishing medical or health services to a citizen for which they receive reimbursement from the state whether directly or indirectly; nor shall this term include a subagency or affiliate of such a nonprofit organization from or through which the allocation of tax funds is made.
O.C.G.A. §§ 50-14-1(a)(1), 50-18-70(a).
The Acts also apply to private entities to which public functions have been transferred by an agency or which receives substantial funding or resources from an agency in performance of a task (in such instance, only the records and meetings related to that task are open). An agency may not transfer records to a private entity to avoid disclosure, and, if public records are transferred to private parties, that private person or entity is subject to the provisions of the Open Meetings and Open Records Acts. Central Atlanta Progress, Inc. v. Baker, 278 Ga. App. 733 (2006).