Your office has asked for an opinion regarding the procedure to be utilized when the Georgia Bureau of Investigation (hereinafter “GBI”) is issued discovery requests by the defense in a criminal matter. For the reasons outlined below, the criminal investigation files of whatever description are also prosecutorial files and, therefore, any requests for discovery should be coordinated with the criminal prosecutor who should be the primary source for determining the response.

The duties of the GBI are detailed in O.C.G.A. § 35-3-4 and relate generally to the preservation of individual criminal information, the forensic and evidentiary investigation of criminal activity, and the collection of missing person data. Your question specifically involves the criminal investigation and the scientific analysis of evidentiary matters, including all the information generated from both.

There are three distinct discovery situations that may occur when, in the course of the criminal prosecution, the defense issues a subpoena or other discovery request to the GBI asking for documents related to the criminal case. One situation occurs when the prosecution and defense have entered into the statutory discovery process. O.C.G.A. §§ 17-16-1 to –10. Closely related to this formal statutory procedure is the informal “open file” policy which many prosecutorial offices utilize. The third distinct situation is when there is no “open file” policy and there is no statutory discovery demand. Each discovery situation has its own specific and particular legal parameters.

These discovery issues arise because, under Georgia law, the GBI is necessarily involved in the criminal investigation of many cases. As an example, the GBI may become involved in assisting other law enforcement agencies upon the request of the governing authority pursuant to O.C.G.A. § 35-3-8.1. In addition, a district attorney may request directly the assistance of the GBI to investigate any criminal matter. O.C.G.A. § 35-3-13(a). Neither of these Code Sections is, however, the exclusive list of who may make a request for investigative assistance. Owens v. State, 251 Ga. 313 (1983).

When a GBI investigation is initiated for the purpose of collecting and analyzing evidence to be used in a potential criminal prosecution, the GBI file is, in fact, also the file of the prosecutor. This is true whether or not the prosecutor is actually participating in all phases of the investigation. Therefore, while there is a GBI file physically maintained at GBI offices, the file and its contents, until closed and not prosecuted or closed after final prosecution, constitute part of the prosecutor’s case file. The information contained in the file and about the investigation should be discussed with the prosecutor to determine, in each instance, the type of criminal discovery applicable to the file at issue. Since the GBI file is the prosecutor’s file, the GBI should coordinate with the prosecutor, proceeding as primarily determined by the prosecutor, according to the type of discovery in any particular case. Where a subpoena needs to be quashed, the prosecutor or the Attorney General’s Office can move to quash, depending on the circumstances.

In summary, regardless of the criminal discovery status of any case, when the GBI is subpoenaed or otherwise involved in a discovery request in a criminal matter, the prosecutor, in cooperation with the GBI and this office, should make a case by case analysis of material subject to discovery.

Prepared by:

Senior Assistant Attorney General