Facts
In this case, Dr. Manos Antonakakis worked as both a professor and a private contractor at the Georgia Institute of Technology (“Georgia Tech”). Antonakakis’s private contractor designation related to his ownership of two companies that were established “for the purpose of receiving funding from the federal Defense Advanced Research Projects Agency (“DARPA”) to carry out work for Georgia Tech’s benefit.”
Seeking public records relating to DARPA pursuant to the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., plaintiff Ryan Milliron submitted an open records request to Georgia Tech and to Antonakakis in his individual capacity. The request to Antonakakis particularly requested, “any … privately held email account likely to have agency records.” Georgia Tech timely complied with Milliron’s request; however, Antonakakis did not respond.
Displeased with the information obtained from Georgia Tech, Milliron filed the subject action seeking an order compelling Antonakakis to comply with the request.
The defendant filed a pre-answer motion to dismiss for failure to state a claim, contending, among other things, that he was not an “agency” subject to production under Georgia’s Open Records Act. In response, the plaintiff argued that he had received information and materials from other sources that indicated the defendant had received emails related to his work as an independent contractor to his personal email account, including two specific emails that were not produced by Georgia Tech and the defendant, which he was entitled to receive.
The trial court granted the defendant’s motion, specifically rejecting the plaintiff’s argument that a public or state employee is “directly and personally obligated to provide public records” under the Open Records Act.
The Georgia Court of Appeals confirmed, holding that requests must be sent to an agency’s open record officer when there was such an officer provided, and in the case before it, neither the defendant nor his lawyer was Georgia Tech’s designated officer.
Issues & Holdings
The Georgia Supreme Court granted certiorari to resolve two issues.
The first is whether the Open Records Act applied to records held by an individual who is employed by a public agency when such individual also performs services for that agency as a private contractor, and the records sought relate to that individual's services as a private contractor for the agency.
The second is if the Open Records Act did apply, whether an open records request can be sent directly to the private contractor or whether such a request must be sent to the agency or the agency’s open records officer.
Reasoning
In regard to the first question, the Court held that private contractors are subject to open records requests when the requested material relates to his or her services for a public agency.
The Court noted that when enacting the Open Records Act, the General Assembly declared that:
[T]he strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.
The Court further noted that “there is a strong presumption that public records should be made available for public inspection without delay.” Further, the Court discussed the Act’s broad definition of “Public Record,” which includes “such items received or maintained by a private person or entity on behalf of a public office or agency.”
With this framework in mind, the Court concluded that records such as those allegedly in Antonakakis’ possession are subject to the Open Records Act, and the plain language of the Open Records Act supported such a finding.
In regard to the second question, the Court held that a request for public records can be submitted to the custodian of records for a private contractor, even if the agency for which the private contractor provided services has a designated open records officer.
Most notably, the Court disagreed with the lower court's conclusion that requests must be served solely on the agency's designated officer. It emphasized that the Open Records Act allows requests to be made to any custodian of public records, including private contractors working on behalf of agencies.
Thus, the Court held private contractors may also be subject to legal action to enforce compliance with the Act. Accordingly, the Court held that dismissal of Million’s action for failure to state a claim was improper and remanded the case to the trial court with instruction to determine whether Antonakakis was in possession of the purported emails, and if so, whether he was the custodian of such.
Conclusion
Milliron represents an unequivocal statement by the Georgia Supreme Court in their support of disclosure and transparency in government. More importantly, it is a clear statement that private contractors are required to comply with Open Records Requests when the request seeks records relating to their work with a public office or agency.
Like the plaintiff in Milliron, it is not uncommon to receive an open records response that seems incomplete or does not provide what you are looking for. The Milliron decision makes clear that lawyers may be able to supplement these responses where it finds that a private contractor may be in possession of important public records.
This decision also reinforces the ability to obtain documents pre-suit from non-government contractors that may have been doing work on behalf of a government agency. The Act, and this case, make clear that records in the possession of a private contractor are subject to disclosure under the Act when the contractor is performing services for a public agency.
Citation: Milliron v. Antonakakis, S24G0198 (Ga. Aug. 13, 2024).
