You have requested an official opinion regarding the applicability of the Open Records Act, O.C.G.A. § 50-18-70 et seq. ("the Act"), to the records of the Fraud and Compliance Division of the State Board of Workers' Compensation. Specifically, you ask whether the records and files generated by the Fraud and Compliance Division are subject to the Open Records Act; whether claimant files and records declared confidential under O.C.G.A. § 34-9-12(b) may be released to other law enforcement personnel including solicitors and district attorneys to assist in criminal prosecutions under O.C.G.A. §§ 34-9-19 and -126(b); and whether a criminal defendant has a right to access exculpatory documents that might be contained in such files. This opinion will address each of these questions in turn.

ARE THE RECORDS AND FILES GENERATED BY THE FRAUD AND COMPLIANCE DIVISION SUBJECT TO THE OPEN RECORDS ACT?

The Open Records Act, O.C.G.A. § 50-18-70(b), requires that records which are prepared and maintained or received in the course of the operation of a public office or agency should be open for public inspection except those records the disclosure of which is prohibited by court order, prohibited by law, or specifically exempted. The statute's exemptions are interpreted narrowly to effect the public policy of promoting openness in government.

Unquestionably, the records maintained by the Fraud and Compliance Division are public records within the definition of the Open Records Act since they are "prepared and maintained or received in the course of the operation of a public office or agency." O.C.G.A. § 50-18-70(a). The records would, therefore, be subject to disclosure unless exempted in whole or in part by the Open Records Act itself or some other statute. Hardaway Co. v. Rives, 262 Ga. 631, 632 (1992). The following categories of records may be exempt from the requirement of public disclosure.

A. Investigation records:

Records of pending law enforcement or regulatory investigations are exempt from disclosure under the Act. O.C.G.A. § 50-18-72(a)(4); Lebis v. State, 212 Ga. App. 481 (1994). In order to be considered pending, the investigation must involve "imminent adjudicatory proceedings of finite duration." Parker v. Lee, 259 Ga. 195, 198 (1989). Note also that records compiled for law enforcement or prosecution purposes are protected to the extent that they would disclose the existence of confidential surveillance or would disclose the identity of a confidential informant. O.C.G.A. § 50-18-72(a)(3); 1981 Op. Att'y Gen. 81-71, p. 172 n.6; Atlanta Journal & Constitution v. City of Brunswick, 265 Ga. 413 (1995).

B. Workers' compensation records referring to accidents, injuries and settlements:

Official Code of Georgia Annotated § 34-9-12(b) provides that workers' compensation records

insofar as they refer to accidents, injuries, and settlements, shall not be open to the public but only to the parties satisfying the board of their interest in such records and their right to inspect them. . . . Under such reasonable rules and regulations as the board may adopt, the records . . . as to any [previous claim] shall be open to and made available to such claimant, to an employer or its insurance carrier . . . and to any party at interest.

See 1991 Op. Att'y Gen. 91-5. This statute would not insulate records of the Fraud and Compliance Division from disclosure unless they refer to accidents, injuries or settlements.

C. Where the disclosure would invade the individual's privacy:

As I have previously stated, "[r]esolving the tension between a legitimate inquiry into the operation of a governmental unit and the privacy of participants in one of its programs requires a balancing process. It is an agency responsibility to identify any privacy interests which it must protect, but the agency bears a heavy burden of justifying any failure to release information." 1991 Op. Att'y Gen. 91-33, p. 74 (citations omitted).

The invasion of privacy exemption applies to the "publicizing of one's private affairs with which the public has no legitimate concern," Napper v. Georgia Television Co., 257 Ga. 156, 160 (1987), and protects records from disclosure if such disclosure would constitute the tort of invasion of privacy. Dortch v. Atlanta Journal & Atlanta Constitution, 261 Ga. 350, 351-52 (1991). The three elements necessary to recover for tortious invasion of the right to privacy are: 1.) the disclosure of private facts must be a public disclosure; 2.) the facts disclosed to the public must be private, secluded or secret facts; and 3.) the matter disclosed to the public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstance. Id. (quoting Cabaniss v. Hipsley, 114 Ga. App. 367, 372 (1966)). Note that the invasion of privacy exemption refers to a personal right to privacy rather than a corporate preference for privacy. Hardaway at 635.

It is, therefore, my opinion that the agency should make a determination on a case by case basis identifying any privacy interests which must be protected; and if it concludes that any information should not be released, it should be prepared to justify that decision. In particular, attention should be paid to these areas:

1) An individual's medical and rehabilitation records are entitled to privacy. O.C.G.A. § 50-18-72(a)(2); cf. 1991 Op. Atty Gen. 91-8 (those portions of Subsequent Injury Trust Fund Board meetings in which the medical and rehabilitation records of an individual are discussed are not subject to the Open Meetings Law, O.C.G.A. § 50-14-1 et seq.).

2) Information gathered during the course of a criminal investigation regarding persons who are not targets of the criminal investigation and which could be embarrassing if revealed may be exempted from disclosure. Napper at 172.

3) Certain company's compliance information may invoke privacy interests. Tax records definitely are protected from disclosure. See, e.g., Bowers v. Shelton, 265 Ga. 247 (1995) (confidential tax information in an investigative file of the Attorney General was not subject to disclosure). In addition, the records should be reviewed to determine whether they include information which would qualify as a "trade secret." 1994 Op. Att'y Gen. 94-15. Other financial information would not be exempt. See, e.g., 1995 Op. Att'y Gen. 95-31 (public's right to inspect salary and expense information relating to nonprofit contractors).

ARE CLAIMANT FILES AND RECORDS CONFIDENTIAL WITH RESPECT TO THE FRAUD UNIT USING THEM AS EVIDENCE TO ASSIST PROSECUTORS IN PROSECUTING CRIMINAL FRAUD UNDER O.C.G.A. § 34-9-19 OR NON-COMPLIANCE UNDER O.C.G.A. § 34-9-126(B)?

Under O.C.G.A. § 34-9-12(b), workers' compensation records regarding accidents, injuries and settlements are available to any party in interest. On the other hand, O.C.G.A. § 34-9-24(a) requires that the agency "shall promptly notify [the prosecutor] of any action which involves criminal activity. When so required . . . the unit shall cooperate with

the district attorney in the investigation and prosecution of criminal violations."

In Apple Investment Properties, Inc. v. Watts, 220 Ga. App. 226, 229 (1996), the court noted that it "would be strange, indeed, for [an agency] to create a regulation which would have the effect of concealing the very types of misconduct which the [agency] exists to eradicate." It would likewise be "strange" to suggest the legislature in this instance would have written a statute making workers' compensation records so confidential that they could not be used in prosecuting the investigations of the Fraud and Compliance Division.

It is my opinion that the Fraud and Compliance Division is required under O.C.G.A. § 34-9-24(a) to furnish records otherwise confidential under § 34-9-12(b) to prosecutors in furtherance of criminal prosecutions instigated under § 34-9-24(a). The prosecutor must be considered a party in interest, acting on behalf of the interests of a unit of the State Board of Workers' Compensation, for purposes of O.C.G.A. § 34-9-24(a).

IS A DEFENDANT IN SUCH A
PROSECUTION ENTITLED TO EQUAL USE OF THE RECORDS, WHICH MAY IN THEIR ENTIRETY CONTAIN EXCULPATORY EVIDENCE?

Regardless of the exculpatory nature or lack thereof, a claimant and/or employer is entitled to records referring to accidents, injuries and settlement in a previous claim under O.C.G.A. § 34-9-12(b). The records "shall be open to and made available . . . under such reasonable rules and regulations as the board may adopt." The board is allowed to make a reasonable charge for copies and mailing. Accordingly if the defendant in a criminal prosecution is either a claimant or employer, the defendant is entitled to records relating to accidents, injuries and settlements.

A defendant may also be entitled to other records that contain exculpatory evidence in the custody of the Fraud and Compliance Division under the authority of Brady v. Maryland, 373 U.S. 83 (1963), or under statutory rules governing criminal discovery. See, e.g., O.C.G.A. § 17-16-20 et seq. A determination as to what specific records to make available to a criminal defendant

should be made on a case by case basis after consultation with the prosecutor or solicitor handling the case. Please note that only exculpatory information need be made available to the defendant, as opposed to information that the Court of Appeals describes as "non-inculpatory." Moclaire v. State, 215 Ga. App. 360, 360 (1994). See also Crowe v. State, 265 Ga. 582 (1995); Bradford v. State, 205 Ga. App. 383 (1992).

In conclusion, it is my opinion that the records of the State Board of Workers' Compensation Fraud and Compliance Division are subject to disclosure under the Open Records Act, O.C.G.A. § 50-18-70 et seq., except where such disclosure is exempted by the Act, prohibited by law, or prohibited by court order; that the files and records maintained by the unit that would otherwise be confidential under O.C.G.A. § 34-9-12(b) should be furnished to prosecutors in furtherance of criminal prosecutions instigated as a result of a Fraud and Compliance Division investigation; and that exculpatory information in Fraud and Compliance Division files should be made available to criminal defendants being prosecuted as a result of an investigation under O.C.G.A. § 34-9-24.

Prepared by:

ALAN GANTZHORN
Senior Assistant Attorney General

The Fraud and Compliance Division was created by O.C.G.A. § 34-9-24 for the purpose of investigating allegations of fraud and noncompliance and in order to develop and implement programs to prevent fraud and abuse. The Division is directed to notify the appropriate district attorney when it uncovers evidence of criminal activity.

Only those portions of records to which an exclusion directly applies are excluded from the requirements of disclosure. O.C.G.A. † 50-18-72(g); Hardaway Co. v. Rives, 262 Ga. 631 (1992). Disclosable information is to be separated from non-disclosable information. 1981 Op. Att'y Gen. U81-47.