The Legislature can restrict access to information under the Open Records Act even after a party has filed a lawsuit seeking to obtain the information, the Georgia Supreme Court ruled Monday.
The court’s ruling handed a victory to the state, which sought to prohibit a group of union autoworkers from obtaining information from Quick Start, a job-training program used to lure new industry to Georgia. The autoworkers had filed a sweeping open-records request with Quick Start after they unsuccessfully applied for jobs in 2008 at the massive Kia Motors plant in West Point.
When the state withheld the information, the autoworkers filed suit, claiming the documents were not exempt from disclosure.
While the suit was pending, the General Assembly amended the Open Records Act to keep secret any records that would disclose a potential economic development project until a binding agreement was secured by the state and a new company. Another provision shielded records related to job training programs, and yet another said it could be applied retroactively.
In court filings, the state Supreme Court had been urged to strike a balance between the public interest in open government and the public interest in shielding information that may be needed to attract economic development.
“But striking the right balance between competing legitimate policy interests is a political question, and this court is concerned only with legal questions,” Justice Keith Blackwell said, writing for a unanimous court. “We leave political questions to the political branches, and the policy arguments in this case are properly directed to the General Assembly.”
Brian Robinson, a spokesman for Gov. Nathan Deal, said the court backed the governor’s position.
“This ruling is important not just in this case but also for the precedent it sets,” Robinson said. “Companies looking to locate in Georgia now have confidence that the state will be a team player and will provide a great business climate for creating jobs.”
Atlanta lawyer Gerry Weber, who represents the autoworkers, said his clients were seeking the information to determine if union employees had been blacklisted.
“Now the Legislature has rewritten the law, the court has rewritten the constitution and we’re still trying to get to the bottom of this,” Weber said. “And any time a citizen files a lawsuit asserting rights under the open-records or meetings laws, that suit is on extremely thin ice because it can now be taken away by the Legislature when it wants to hide something.”
In December, Fulton County Superior Court Judge Kelly Lee ruled for the autoworkers, saying the Open Records Act established “rights” that could not be abridged through legislation applied retroactively. Lee rejected arguments by state attorneys who said a retroactive application was permitted because the law established mere “privileges” for citizens.
But Justice Blackwell wrote that the distinction between “rights” and “privileges” is one without real meaning because a “right” is commonly understood to mean a “privilege” and a “privilege” is commonly understood to be a kind of “right.”
The key question is whether the open records law is a “public right” or a “private right.” Private rights traditionally refer to an individual’s rights to property and bodily integrity and are referred to in the enforcement of contracts, Blackwell wrote. These rights cannot be taken away by subsequent legislation.
Public rights are those that belong to the people in common and can be modified by lawmakers prospectively and retroactively, and the open-records law falls under this category, Blackwell said.
There are practical implications to forbidding retroactive changes to the Open Records Act, Blackwell said. He noted the Legislature has enacted 48 exceptions to the law, such as prohibiting the release of courthouse security plans, trade secrets and autopsy photographs.
“In its efforts to anticipate the dissemination of harmful records … the General Assembly cannot reasonably be expected to have perfect foresight,” Blackwell said. “Requests for dangerous information may be made, and only then will the danger become apparent.”
If the autoworkers’ arguments are correct, he added, “our General Assembly would be unable to enact emergency retroactive legislation to stop the release of dangerous or especially sensitive information once the records had been requested.”
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