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Georgia Supreme Court: Private contractors and vendors can be “custodians” under Georgia’s Open Records Act 

8/14/24

By: Wesley C. Jackson

Georgia’s Open Records Act allows for citizens to inspect certain “public records” of government agencies in the interests of open government. The Act has long defined “public records” to include not just records created and maintained by the agency itself, but also those records “prepared and maintained . . . by a private person or entity in the performance of a service or function for or on behalf of an agency” or when the records are transferred to a private person or entity for later government use. But how might a citizen request and inspect such public records when they are in the custody of a private person or entity? The Georgia Supreme Court provided some answers to that question in a decision issued yesterday, Milliron v. Antonakakis. 

In Milliron, plaintiff Ryan Milliron alleged that he sought records from Manos Antonakakis, a professor employed by the Georgia Institute of Technology. In addition to being a professor, Mr. Milliron claimed that Prof. Antonakakis also provided services to Georgia Tech as a private contractor. In seeking the records allegedly related to this contract work, Mr. Milliron sent identical requests to both Prof. Antonakakis directly and to Georgia Tech’s records custodian. 

The Supreme Court considered two questions: First, whether records held by a private contractor related to services performed for a governmental entity are “public records” for purposes of the Open Records Act; and second, whether requests for records can be submitted directly to the private contractor.  

The Supreme Court answered both questions affirmatively: records held by a private contractor related to services performed for a governmental entity are, generally speaking, “public records” for purposes of the Open Records Act. The Court reasoned, “[a]s the plain language of the statute makes clear, records prepared or maintained by a private contractor ‘in the performance of a service or function for or on behalf of an agency’ are ‘public records’ under the Act, and this is so even if the private contractor separately works as an employee of an agency.” Additionally, such records can be requested under the Open Records Act directly from the private contractor who has custody of the records, because “the language of the Act contemplates and permits that a request to inspect and copy public records can be made to someone outside of an agency.” 

But as always, the devil is in the details. While the Supreme Court’s decision in Milliron stands for the proposition that “public records” can be requested directly from a “private custodian,” who exactly is a “custodian” of such records may vary by circumstance and the particulars of any agreements between the public entity and the private contractor. 

For additional information about Georgia’s Open Records Act, please contact Wesley C. Jackson at wjackson@fmglaw.com or other attorneys in Freeman Mathis & Gary’s Government Law Section.