Georgia Attorney General Chris Carr (John Disney/ ALM)
In what he says is a case of first impression on a 2012 rewrite of the state public records law, Georgia Attorney General Chris Carr recommended that the high court reverse and remand the case to the Georgia Court of Appeals for further review.
In a split ruling with Judge Stephen Dillard writing for the majority, the state appellate court last year affirmed the dismissal of Jones Day partner Kendrick Smith’s suit against Atlanta’s Northside Hospital, finding that the documents Smith sought are “related to commercial transactions between private entities” and are not a matter of public record. Smith appealed and the Supreme Court heard oral arguments last month.
Smith sued Northside for records associated with the hospital’s acquisitions of four large physician practice groups between 2011 and 2013—estimated to have cost $100 million in total. Smith contends the records are subject to public disclosure because they were prepared, maintained or received by Northside’s parent company, a private entity, that’s performing duties entrusted to it by a public agency to operate and expand a health care system for the public’s benefit. The public entity is the Fulton County Hospital Authority.
Northside’s attorneys counter that Smith is misusing the open records law to obtain “highly confidential and commercially sensitive” business records that are exempt from the law on behalf of “an undisclosed competitor” that intends to use them to secure a competitive advantage over Northside. Northside lawyers also argued that hospital representatives signed binding confidentiality agreements barring disclosure of the documents Smith seeks.
Carr said that whether the documents in question are public turns on whether Northside was acting “for or on behalf of” the hospital authority when it generated them. Under state law, a public record includes any record prepared, maintained or received by a private person or entity “in the performance of a service or function for or on behalf of an agency.” Carr said the phrase “for or on behalf of” creates an implied contractual obligation “that requires a private person or entity to produce any non-exempt record to a governmental agency upon the agency’s request.”
“That broad obligation exists whenever a private person or entity contracts with an agency, and it exists regardless of whether the private person or entity otherwise acts subject to the agency’s direction and control,” he said.
The attorney general said that, because the Court of Appeals “did not apply that rule,” the Supreme Court should remand the case “with instructions that it do so.”
But in affirming Fulton County Superior Court Judge Gail Tusan’s dismissal of Smith’s case, the state appellate majority noted that, “Contrary to Smith’s contention, the trial court did not dismiss this case based on a general determination that Northside was not subject to the [Open Records] Act at all.”
“Instead,” wrote Dillard, “the court simply found that Smith presented no evidence that Northside entered into or performed any of the four transactions at issue on behalf of the [Fulton County Hospital] Authority or exercised any of the Authority’s powers when doing so.”
“Moreover, the mere fact that Northside’s healthcare operations and services may provide an indirect public benefit does not convert its private documents into public records absent any evidence that the documents relate to Northside’s performance of a specific function on the Authority’s behalf,” he wrote.
Smith’s attorney and law partner, Peter Canfield, who’s The Atlanta Journal-Constitution’s longtime lawyer, applauded the attorney general’s decision to weigh in. “Like the other amici who have supported our position … the AG argues that Northside’s cramped interpretation of ‘public record’ is too narrow and flawed and ignores the text of the Act and that, when the Court of Appeals majority adopted that interpretation it got it wrong and needs to be reversed, Canfield said.
Northside attorneys James Rawls and Derek Bauer, both of Baker Hofstetler, referred questions to hospital spokesman Lee Echols. “We do not agree with the Attorney General’s conclusions,” Echols said. “Northside Hospital won the case in the trial court, won again in the Court of Appeals, and we are confident the Supreme Court will uphold the decisions of the lower courts.”