September 20, 1999
Volume 52, No. 5
Amendments to Georgia Open Records Act hold complications for the University
Changes made to the state Open Records Act (ORA) this summer hold ramifications for Emory in that certain types of University documents are now subject to public disclosure.
The amendments, that became effective July 1, extend coverage of the ORA to certain private entities that provide services "on or on behalf" of a governmental agency. Kris West, assistant general counsel, said the legislation's language will be open to much interpretation in the courts.
"There's going to be a heck of a lot of litigation about what that clause means," West said. "It's just very nebulous. Let's say there's a program that's funded in part by state resource grants-any records pertaining to those research grants that doesn't otherwise fall into an exemption might be included. Before [the ORA] had virtually no application to us, but now there's a good argument that in several instances it might apply."
The law now states that any record "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 an agency, a public agency, or a public office shall be subject to disclosure to the same extent that such records would be subject to disclosure if received or maintained by such agency, public agency, or public office."
Certain types of records statutorily excluded from disclosure, such as a medical records, West said. Also the scope of the disclosure is limited to documents related to the "function or service" in question; documents related to a state-contracted School of Medicine consulting project, for example, would be subject to disclosure, not school records as a whole.
But equally disturbing is the time constraint the amendments impose; once Emory receives a written request to produce documents, the University has only three business days to locate the documents, determine whether they are subject to disclosure and either release them to the requesting party or request a stay from the court and refuse access.
"It's awful," West said simply. "It's going to be extremely difficult to comply with this law. The thing that makes it particularly hard is when you're trying to have one of these exemptions apply, you have to reference the specific code section that exempts it. So you have to go through your federal statutes, go through your state statutes and cite specifically why you think something's exempt."
Another complicating factor is the legislation leaves unclear to whom records requests can and/or should be made; if an individual walks up to a grounds maintenance worker or a custodial services employee and demands records related to Crawford Long Hospital, is Emory compelled to follow through? West said that unlike subpoenas, which have a history of case law on the matter, there is little precedent for this. "You have to go from the bottom line," she said. "Right now, the way this is literally written, if it's served on any person at Emory, it's given us notice and our three days have started running."
When the law went into effect, the General Counsel's office braced itself for what it feared might be an onslaught of requests, but West said this has not happened. The office does ask that anyone who receives such a request should immediately notify his or her supervisor and also contact West at 404-727-1730 or, for health care matters, Katie Lewis or Beth Clark Morrison at 404-712-5627.