The Georgia Supreme Court on Monday issued a ruling that expands the scope of who is responsible for producing public records under the state’s Open Records Act. The court also allowed for records requests to be sent to non-agency custodians such as private contractors — if the contractor is the custodian of those records.

For public agencies in Georgia, including K-12 school districts, the ruling widens the net of the types of entities that are subject to the Open Records Act. Going forward, school districts should communicate with their vendors about their new obligations, and those vendors should take immediate steps to prepare to respond to an Open Records Act request.

Here’s a look at the background of the case in question and key takeaways for public agencies that receive an Open Records Act request for records held solely by a private contractor.

Open Records Suit Targets Private Contractor at Public University

In Milliron v. Antonakakis, the Georgia Supreme Court examined a case brought by Ryan Milliron against Manos Antonakakis, a professor employed by Georgia Tech, seeking records related to Antonakakis’s purported services to the university as a private contractor.

Milliron alleged that Antonakakis performed work for Georgia Tech — a public agency — as both an employee and a private contractor and that, in Antonakakis’s capacity as a private contractor, he had possession of public records he was required to produce to Milliron under the Open Records Act.

Milliron submitted an Open Records Act request to both Georgia Tech and to Antonakakis individually. Georgia Tech responded and produced documents, but Antonakakis did not respond to Milliron’s request in his personal capacity.

Unsatisfied with the documents received from Georgia Tech, Milliron filed suit against Antonakakis in his individual capacity, seeking to force him to personally respond to the Open Records request and independently produce documents directly to Milliron.

When is a Private Entity Subject to the Open Records Act?

The Georgia Supreme Court found that records prepared or maintained by a private entity or individual "in the performance of a service or function for or on behalf of an agency" are "public records" under the Open Records Act. Where a private person or entity working on an agency’s behalf prepares, maintains, or receives public records, that person or entity would become the "custodian" of those records. A request for public records related to their services to a public agency, therefore, can be served upon that private person or entity as the custodian of the public records. Notably, the court concluded that legal actions seeking to enforce compliance with the Open Records Act can also be brought against such non-agency custodians of public records, including individuals.

Nevertheless, if a public agency has designated an official or an open records officer to receive all written requests on the agency’s behalf, a written request to that agency must be submitted to the designated records officer or official. This requirement, however, only applies to written open records requests made to an agency seeking records that are within the agency’s custody. It does not speak to requests to private persons or entities who prepare, maintain, or receive records of their work on behalf of agencies.

That said, even where an agency has designated an open records officer or official for this purpose, a request for public records may still be made upon other non-agency custodians of the pertinent public records, including private contractors who perform services for a public agency.

Key Takeaways for School Districts

Records related to work done for a public agency, such as a school district, and held solely by a private contractor are subject to the Open Records Act. The private contractor must accept and respond to an Open Records request. Otherwise, the private contractor may be subject to legal liability.

• Public entities should advise their private contractors of their potential obligations under the Open Records Act.
   
• Key government contractors, including law firms, construction companies, and IT vendors, should develop internal training, document preservation strategies, and guidelines for how to respond to an open records request. Those contractors should also familiarize themselves with the deadlines under the Open Records Act and the many categories of documents excepted from production under the statute.

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