Justice Nels Peterson Justice Nels Peterson, Georgia Supreme Court (Photo: Ashley Stolar)

In a case of first impression, the Georgia Supreme Court decreed Monday that a court rule allowing the public to access court records includes the right to copy those records.

But the justices nonetheless handed a defeat to the makers of a podcast hoping to copy a court reporter’s backup tapes from an old murder case, ruling they do not have any right to do so because the tapes in question were never filed with the court.

The ruling upholds a Floyd County judge’s ruling denying the producers of the “Undisclosed” podcast series the right to copy the tapes, but the high court also said the trial judge erred by finding court rules do not allow records to be copied.

The ruling, penned by Justice Nels Peterson, revisited the court’s 1992′s decision in Green v. Drinnon, 262 Ga. 264, which held that an “official court reporter’s tape of a judge’s remarks in open court is a court record” and that “the tape or its transcript must be made available for public inspection.”

Drawing a distinction between the two cases, Peterson said Green was a unique case because the recording at issue involved comments a judge made in open court but before calling any cases, thus were the only record of his statement.

A transcript of the judge’s comments had been sought by a newspaper, which the judge denied.

Under the provisions of Rule 21 of the Uniform Rules of Superior Court, court records are required to be available to the public unless specifically barred by law.

Green must be considered “in the context of its own unique facts,” Peterson wrote.

“Had we held in Green that court reporter tapes always are court records under Rule 21, then the newspaper would have been entitled to the tapes,” he wrote. “But instead we said that the newspaper was entitled to the tapes or a transcript.”

In a concurring opinion, Justice Harold Melton said the majority had gone to “strained and unnecessary lengths” to retain the Green precedent, and should have simply scrapped the earlier ruling.

“In my view, Green was simply wrongly decided and should be overruled,” Melton said.

“Undisclosed” began investigating the case of Joseph Watkins last year. He was convicted and sentenced to life plus five years for murder, aggravated assault and stalking in the 2000 shooting death of Isaac Dawkins.

Georgia Innocence Project Executive Director Clare Gilbert sought and received permission to copy the court reporter’s recordings for two hearings and Watkins’ 2001 trial.

Gilbert didn’t have the proper equipment to copy the tapes, and Floyd County Superior Court Judge William Sparks ordered “Undisclosed” to file a motion requesting access to the records by the time Gilbert returned with different gear.

The podcasters did so, but Sparks only allowed them to listen to the tapes. He wrote that “[n]othing in Green entitles ["Undisclosed"] to copies of a court reporters’ back-up tapes/recordings.”

In briefs and during oral arguments in May, “Undisclosed” lawyers Michael Caplan and James Cobb of Caplan Cobb argued that longstanding court precedent as well as Rule 21 allowed the podcasters to copy the records.

Floyd County was represented by the office of District Attorney Leigh Patterson and Assistant District Attorney John McClellan Jr., who argued Rule 21 did not allow for copying court records and that the podcasters should have filed a mandamus action instead of using the rule.

Peterson made quick work of the latter point, writing that “Undisclosed is right” in its use of Rule 21 to attempt to access the tapes.

Turning to the more substantive issue, both common law precedent and Rule 21 also encompass the right to copy court records as part the “right of access,” Peterson wrote, and Sparks erred in ruling otherwise.

“Our conclusion that a court reporter’s recordings not filed with the court are not court records is in accord with other courts that have considered the issue,” he said.

Only in cases where there is reason to doubt the accuracy of a transcript have those courts ruled that they must be produced, Peterson wrote.

Patterson declined to discuss the opinion.

Cobb said the ruling—while disappointing for his clients—was good news for transparency advocates.

“We’re obviously pleased that, for the first time, the Supreme Court has ruled that there is a right for the public to copy court records, unlike the state’s argument that we’re limited to just looking at them,” Cobb said.

“Point 2 is that this decision doesn’t prohibit judges and even court reporters from making their audio recordings available; it just says leaves it to their discretion to decide whether to release them,” he said. “And we hope they do so going forward.”