Chua v. Johnson , 336 Ga. App. 298 ( 2016 )

SECOND DIVISION
MILLER, P. J.,
BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 21, 2016
In the Court of Appeals of Georgia
A15A1728. CHUA v. JOHNSON.
BRANCH, Judge.
Noel Chua appeals from an order of the Camden County Superior Court
dismissing with prejudice Chua’s complaint against Jackie Johnson, in her capacity
as the District Attorney for the Brunswick Judicial Circuit (the “District Attorney” or
the “District Attorney’s office”). That complaint, which alleged a violation of
Georgia’s Open Records Act, OCGA § 50-18-70, et seq. (“ORA”), sought to require
the District Attorney’s office to provide Chua with a copy of a specific document
contained in the District Attorney’s files related to that office’s criminal prosecution
of Chua. On appeal, Chua contends that the trial court erred in refusing to order the
District Attorney to provide him with the document at issue. Specifically, Chua
asserts that the District Attorney’s office failed to provide him with the timely and
detailed written notice required by ORA, setting forth the reasons for the office’s
refusal to produce the document at issue, and that this failure, without more, entitles
him to that document. Chua also claims that the trial court erred by failing to hold an
evidentiary hearing to determine whether the document in question falls within the
attorney work-product exception to ORA. We agree with Chua that the District
Attorney’s response to Chua’s document request failed to meet all of the requirements
set forth in OCGA § 58-18-71 (d). We find, however, that such a failure does not
automatically entitle Chua to the relief he seeks – i.e., the production of the
document. We further find that we cannot determine from the current record whether
the document in question falls within an exception to ORA. The trial court, therefore,
erred when it refused to hold an evidentiary hearing on this issue.1 Accordingly, we
vacate the order of the trial court and remand the case for further proceedings
consistent with this opinion.
1
We emphasize that the ORA does not require the trial court to hold a hearing
in every case where a dispute arises over whether the party making the ORA request
is entitled to one or more of the documents requested. We find, however, that a
hearing is necessary in this case because the contents of the document at issue reveal
so little as to the document’s provenance. Thus, an in camera inspection of the
document itself did not provide the trial court with enough information to determine
whether the document falls within an exception to ORA.
2
“A trial court is vested with discretion in determining whether to allow or
prohibit inspection of documents under the Open Records Act” (Fulton DeKalb Hosp.
Auth. v. Miller & Billips, 293 Ga. App. 601, 602 (1) (667 SE2d 455) (2008)), and we
therefore review a trial court’s ruling on that issue for an abuse of discretion, which
“occurs where the trial court’s ruling is unsupported by any evidence of record or
where that ruling misstates or misapplies the relevant law.” Mathis v. BellSouth
Telecommunications, 301 Ga. App. 881, 881 (690 SE2d 210) (2010) (citation and
footnote omitted).
The relevant facts are undisputed. In 2006, Chua was indicted in Camden
County Superior Court on a number of criminal charges, including felony murder. See
Chua v. State, 289 Ga. 220, n. 1 (710 SE2d 540) (2011). That same year, the District
Attorney also filed a civil RICO action against Chua in Camden County Superior
Court, and that action remains pending.2 Following a jury trial in 2007, Chua was
convicted of multiple counts, and the Georgia Supreme Court subsequently affirmed
his conviction for, among other things, felony murder. Chua, 289 Ga. at 220, n.1.
Chua thereafter filed a habeas corpus petition, which is currently pending in Bibb
County Superior Court. Apparently in preparation for pursuing the habeas action,
Chua’s attorney filed an ORA request with the District Attorney’s office seeking to
review its case files in both the criminal and civil actions brought against Chua.
Pursuant to this request, the District Attorney agreed to make the files available for
2
There is nothing in the current record which indicates the basis for the RICO
action.
3
personal inspection by Chua’s attorney on July 24, 2013.3 On December 23, 2013,
following his July inspection of the files, Chua’s lawyer sent a letter to the “Records
Custodian” at the District Attorney’s office requesting a copy of the document at
issue in this case. That letter notes that counsel had conducted an “open records
review” of the files from the civil and criminal cases against Chua in July of 2013 and
then stated:
As part of that review, one of the many documents provided for
me was a six-page [sic] memorandum, without a named author, relating
primarily to prospective jurors[‘4] relationships to [the] then [Camden
County] Sheriff . . . . With this letter, I am formally requesting a copy of
the aforementioned document, pursuant to OCGA § 50-18-70, et seq. I
will be traveling in the Camden County area on Friday, December 27,
2013, and will [ ] therefore be able to come to your office to pick up the
document in person, if convenient. Alternatively, if the document [can
be located using] the above descriptive information, [transmission by]
fax or U.S. mail is perfectly fine.
The Open Records Officer at the District Attorney’s Office sent a written
response to Chua’s attorney on December 26, 2013, explaining that because of the
3
See OCGA § 50-18-71 (a) (“[a]ll public records shall be open for personal
inspection and copying, except those which by order of a court of this state or by law
are specifically exempted from disclosure”).
4
Based on the trial court’s order and the briefs of the respective parties, it
appears that “prospective jurors” referred to prospective jurors in Chua’s criminal
trial. There is no evidence in the record, however, to explain why the District
Attorney would be concerned with any relationship a prospective juror in Chua’s
criminal trial might have with the then-current Sheriff of Camden County.
4
staff shortage during the holiday season, the records could not be retrieved by
December 27. The Officer also informed counsel that the estimated cost of retrieving
the specific document requested was $56.64, and asked the lawyer “to let me know
if this charge is acceptable and if you would like me to begin searching for said
document.” Defense counsel faxed a written response to the District Attorney’s office
on December 30, 2013, in which he agreed to pay the estimated charge for the
document.
On January 3, 2014, an Assistant District Attorney (“ADA”) telephoned
defense counsel and left a voice mail message explaining that the ADA had reviewed
the document at issue and determined that it was “a document prepared by an attorney
in preparation for trial. So it is work product.” The ADA therefore indicated that the
District Attorney’s office would not be producing the document. The ADA followed
up this message with a letter, dated January 10, 2014 and faxed to defense counsel on
January 13, in which he stated that “the document containing juror notes is not
subject to the Open Records Act and will not be forwarded to you.”
After the District Attorney’s office refused to provide him with the requested
document, Chua filed the current action on May 9, 2014. On January 13, 2015, he
filed a motion for summary judgment seeking an order requiring the District
5
Attorney’s office to provide him with the document at issue. Alternatively, Chua
sought an evidentiary hearing to determine whether the requested document was
subject to an ORA exception. The District Attorney opposed an evidentiary hearing,
arguing that the privileged nature of the document was obvious from the contents of
the memo itself. The trial court did not schedule a hearing and entered its order, dated
February 9, 2015, on March 11. In that order, the trial court found that an evidentiary
hearing was unnecessary and that “the Court is authorized to make a determination”
as to whether the document was subject to the ORA by conducting “an in camera
inspection” of the same. The Court further found that the District Attorney’s voice
mail message, left for defense counsel on January 3, 2014, was timely and complied
with the requirements of ORA. Finally, the trial court held that the memo “deals with
the [District Attorney]’s securing of information on jurors in anticipation of a jury
trial and is covered by the confidential attorney work product exception” set forth in
OCGA § 50-18-72 (a) (42). Chua now appeals from the trial court’s order.
1. We first address Chua’s claim that the trial court erred in finding that the
January 3 response from the District Attorney’s office to his ORA request satisfied
the requirements of OCGA § 50-18-71. That code section provides, in relevant part:
In any instance in which an agency is required to or has decided to
withhold all or part of a requested record, the agency shall notify the
6
requester of the specific legal authority exempting the requested record
or records from disclosure by Code section, subsection, and paragraph
within a reasonable amount of time not to exceed three business days or
in the event the search and retrieval of records is delayed pursuant to
this subsection or pursuant to subparagraph (b) (1) (A) of this Code
section, then no later than three business days after the records have
been retrieved.
OCGA § 50-18-71 (d) (emphasis supplied). Chua contends that the January 3 voice
mail left by the ADA and the ADA’s January 10 letter confirming that message failed
to comply with this provision because they were untimely and failed to inform him
“of the specific legal authority exempting the requested record or records from
disclosure by Code section, subsection, and paragraph.” Chua further contends that
this violation of ORA means that the District Attorney must provide him with the
requested document.
(a) With respect to the question of whether the District Attorney provided an
adequate response to Chua’s ORA request, we agree with the trial court that the
January 3 voice mail was timely.5 It is undisputed that the office’s initial response to
5
We note that the current version of the ORA does not require that the
agency’s response to a request under the Act be in writing, a fact that Chua
acknowledges in his appellate brief. See OCGA § 50-18-71 (b), (d).
7
Chua, in which it informed him that the records were offsite and told him the
estimated cost of retrieving the document, was made within 3 days after Chua’s
request.6 It is also undisputed that Chua’s attorney did not respond to the District
Attorney’s office and agree to pay the estimated fee until December 30, 2013.
Presumably, therefore, the records were not retrieved before that date. Even assuming
that the records were retrieved on December 30 then, as the trial court correctly noted,
January 3, 2014, was within three business days of December 30.7
Moreover, we note that the voice mail left by the ADA did set forth the legal
basis for the District Attorney’s decision to withhold the document, as the message
informed Chua’s attorney that the document constituted attorney work product.
Despite this fact, however, and despite the timeliness of its response, the District
6
OCGA § 50-18-71 (b) (1) (A) provides, in relevant part: “ In any instance
where records are unavailable within three business days of receipt of the request, and
responsive records exist, the agency shall, within such time period, provide the
requester with a description of such records and a timeline for when the records will
be available for inspection or copying and provide the responsive records or access
thereto as soon as practicable.”
7
As the trial court explained, January 1, 2014, was a legal holiday, making
Friday, January 3 the third business day after Monday, December 30. And in his brief,
Chua concedes that if the District Attorney’s office “did not in fact retrieve the
document until December 30, [the] voice mail [response] is arguably timely under .
. . OCGA § 50-18-71 (d).”
8
Attorney’s office did not comply with the letter of OCGA § 50-18-71 (d), because it
failed to cite the “Code section, subsection, and paragraph” pursuant to which it was
denying Chua’s request. Given our history of strictly construing the requirements
imposed by ORA, we must conclude that the District Attorney’s failure to comply
with the letter of the law violated that statute. See Jaraysi v. City of Marietta, 294 Ga.
App. 6, 8-9 (1) (668 SE2d 446) (2008) (requiring strict compliance with that
provision of ORA requiring an agency to cite the specific statutory subsection on
which it was relying to deny the plaintiffs’ ORA request) (footnote omitted). See also
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (when we apply
a statute “we must presume that the General Assembly meant what it said and said
what it meant”) (citation and punctuation omitted); OCGA § 50-18-70 (a) (stating that
it is the intent of the General Assembly that the ORA be construed in favor of
granting access to public records). Accordingly, we agree with Chua that the trial
court erred in dismissing his complaint under the Open Records Act. See Jaraysi, 294
Ga. App. at 9 (2) (because plaintiffs could show a violation of ORA, the trial court
erred in granting summary judgment against them based on the fact that the city
provided the requested documents after the plaintiffs filed their complaint).
(b) Despite Chua’s argument to the contrary, however, the District Attorney’s
technical violation of ORA does not entitle Chua to an order requiring the District
9
Attorney to provide him with the document at issue.8 Rather, Chua will be entitled to
8
In support of this assertion, Chua appears to rely on that part of Jaraysi which
held that the city’s failure to enumerate a specific statutory exemption in its initial
response denying the plaintiffs’ ORA request meant that the city could not thereafter
rely on that exemption to defend against the plaintiffs’ suit for an ORA violation. 294
Ga. App. at 9 (1). That holding, however, was based on statutory language found in
the former version of ORA which expressly precluded an agency from adding to or
amending the exemptions it initially relied upon in denying the ORA request, except
under limited circumstances that were not present in Jaraysi. Id. See also OCGA §
50-18-72 (h ) (2008). As part of the 2012 amendment of ORA, however, the language
relied upon by the Jaraysi court was deleted from the statute. See Ga. L. 2012, p.218,
§2.
Furthermore, the ORA sets forth the penalties for and procedures upon non-
compliance, and there is no provision that would automatically entitle Chua (or any
requesting party) to receive a disputed document where the agency in question fails
to comply with ORA’s requirements. Rather, OCGA § 50-18-74 (a) provides:
Any person or entity knowingly and willfully violating the provisions
of this article by failing or refusing to provide access to records not
subject to exemption from this article, by knowingly and willingly
failing or refusing to provide access to such records within the time
limits set forth in this article, or by knowingly and willingly frustrating
or attempting to frustrate the access to records by intentionally making
records difficult to obtain or review shall be guilty of a misdemeanor
and upon conviction shall be punished by a fine not to exceed $1,000.00
for the first violation. Alternatively, a civil penalty may be imposed by
the court in any civil action brought pursuant to this article against any
person who negligently violates the terms of this article in an amount
not to exceed $1,000.00 for the first violation. A civil penalty or
criminal fine not to exceed $2,500.00 per violation may be imposed for
each additional violation that the violator commits within a 12 month
10
the document only if, following an evidentiary hearing on remand, the trial court
determines that the requested document is not subject to the attorney work product
privilege. Should the court decide that Chua is entitled to the document, it may then
determine whether Chua is entitled to attorney fees under the statute.9 Chua would
period from the date the first penalty or fine was imposed. It shall be a
defense to any criminal action under this Code section that a person has
acted in good faith in his or her actions.
Additionally, OCGA § 50-18-73 gives a requesting party the right to file an action
seeking any document that has been withheld. See OCGA § 50-18-73 (a). If the
requesting party prevails in such an action then, in addition to an order requiring the
agency in question to provide the disputed document, the requesting party may also
be entitled to recover reasonable attorney fees and costs. See OCGA § 50-18-73 (b).
9
Whether Chua would be entitled to such fees is controlled by OCGA § 50-18-
73 (b), which provides:
In any action brought to enforce the provisions of this chapter in which
the court determines that either party acted without substantial
justification either in not complying with this chapter or in instituting
the litigation, the court shall, unless it finds that special circumstances
exist, assess in favor of the complaining party reasonable attorney’s fees
and other litigation costs reasonably incurred. Whether the position of
the complaining party was substantially justified shall be determined on
the basis of the record as a whole which is made in the proceeding for
which fees and other expenses are sought.
11
not, however, be entitled to compensatory or punitive damages. See Wallace v.
Greene County, 274 Ga. App. 776, 781 (2) (618 SE2d 642) (2005).
2. In his second enumeration of error, Chua argues that based on the evidence
of record, the trial court erred in finding that the document at issue is protected from
disclosure by the attorney work product privilege. We find that further proceedings
are necessary before this issue can be decided.
ORA provides that “[p]ublic disclosure shall not be required for records that
are . . . [c]onfidential attorney work product.” OCGA § 50-18-72 (a) (42).10 As a
10
In its entirety, OCGA § 50-18-72 (a) provides that public disclosure shall not
be required for:
Confidential attorney work product; provided, however, that this
paragraph shall not apply to the factual findings, but shall apply to the
legal conclusions, of an attorney conducting an investigation on behalf
of an agency so long as such investigation does not pertain to pending
or potential litigation, settlement, claims, administrative proceedings, or
other judicial actions brought or to be brought by or against the agency
or any officer or employee; and provided, further, that such
investigations conducted by hospital authorities to ensure compliance
with federal or state law, regulations, or reimbursement policies shall be
exempt from disclosure if such investigations are otherwise subject to
confidentiality as attorney work product. In addition, when an agency
withholds information subject to this paragraph, any party authorized to
bring a proceeding under OCGA § 50-18-73 may request that the judge
12
practical matter, there are two distinct categories of attorney work product: general
work product and opinion work product. “General” work product would include
“documents and tangible things . . . prepared in anticipation of litigation or for trial
by or for another party or by or for that other party’s representative[.]” OCGA § 9-11-
26 (b ) (3). These items are subject only to a qualified privilege, which may be
abrogated when a party seeking those items can prove both that he has a “substantial
need” for the items to prepare his case sufficiently and “that he is unable without
undue hardship to obtain the substantial equivalent of the materials by other means.”
OCGA § 9-11-26 (b) (3). See also McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500,
501-503 (1) (562 SE2d 809) (2002) (referring to items that have the qualified
privilege as coming under the “work product doctrine”).
“Opinion” work product would include those trial preparation materials that
contain “the mental impressions, conclusions, opinions, or legal theories of an
of the court in which such proceeding is pending determine by an in
camera examination whether such information was properly withheld[.]
Documents that are subject to the attorney client privilege are addressed in OCGA §
50-18-72 (a) (41), which provides that “[p]ublic disclosure shall not be required for
records that . . . [contain] communications subject to the attorney-client privilege
recognized by state law[.]”
13
attorney or other representative of a party concerning the litigation.” OCGA § 9-11-
26 (b) (3). See also McKinnon v. Smock, 264 Ga. 375, 377-378 (2) (445 SE2d 526)
(1994) (referring to such items as “opinion work product”). Unlike the qualified
privilege afforded other work product, opinion work product is entitled to an absolute
privilege and is therefore absolutely protected from disclosure. Id. See also St. Simons
Waterfront v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 429-430 (2) (746
SE2d 98) (2013). As our Supreme Court has explained, opinion work product is
entitled to a higher degree of protection “because there is a ‘higher value’ to be
served in protecting the thought processes of counsel.” McKinnon, 264 Ga. at 378 (2)
(citation omitted). Thus, “[t]he protection afforded opinion work product creates an
environment in which counsel is free to think dispassionately, reliably, and creatively
both about the law and the evidence in the case and about which strategic approaches
14
to the litigation are likely to be in his client’s best interests.” Id. at 377 (2) (citation
and punctuation omitted).11
We emphasize, however, that the mere fact that an attorney has drafted or
participated in the drafting of a certain document does not mean that the document
is privileged. See Fulton DeKalb Hosp. Auth., 293 Ga. App. at 604 (“[a]ttorney
participation, however, does not necessarily bring material within the work product
protection”) (footnote omitted). See also St. Simons Waterfront, 293 Ga. at 429-430(2), citing McKinnon, 264 Ga. at 376 (2). Rather, to bar disclosure, the party asserting
the privilege bears the burden of proving both that the document was prepared by its
11
In his brief, Chua argues that OCGA § 50-18-71 (a) (42) narrows the
definition of attorney work product so that the exception applies only to opinion work
product and not to general work product. In support of this argument, Chua relies on
that part of OCGA § 50-18-71 (a) (42) that states: “provided, however, that this
paragraph shall not apply to the factual findings, but shall apply to the legal
conclusions, of an attorney conducting an investigation on behalf of an agency . . . .”
Chua’s argument as to the statute’s “narrow definition” of attorney work product,
however, ignores additional relevant language found in the statutory subsection. As
set forth supra at note 10, OCGA § 50-18-71 (a) (42) provides that the attorney work
product exception will not apply to “factual findings . . . of an attorney conducting an
investigation on behalf of an agency so long as such investigation does not pertain
to pending or potential litigation, settlement, claims, administrative proceedings, or
other judicial actions brought or to be brought by or against the agency or any
officer or employee . . . .” In other words, the exception does apply to any
investigation and report thereof that was “prepared in anticipation of litigation or for
trial by or for another party or by or for that other party’s representative[.]” OCGA
§ 9-11-26 (b ) (3).
15
attorney or other representative and that it was prepared in anticipation of a court
action. OCGA § 9-11-26 (b) (3); Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 46
(2) (486 SE2d 180) (1997). And when documents to which a party might otherwise
be entitled contain absolutely privileged material – i.e., the “mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative of a
party concerning the litigation” – the trial court may conduct an in camera review to
determine whether the privileged portions of the document may be successfully
redacted prior to ordering their production. St. Simons Waterfront, 293 Ga. at 429-430(2) (citation and punctuation omitted).
Bearing these principles in mind, we turn to the document at issue in this case.
The record shows that the document is a two-page, undated communication, with no
identified author or recipient. The author asks the recipient to “drop me a reply and
let me know you received it.” The document begins, “[h]ere are the notes,” and states
that “[t]hese notes are a composite of several people reviewing the list.” There is no
indication of who those “several people” might be. Although there is no evidence in
the record regarding the subject of the document, the parties appear to agree, and the
trial court appears to have assumed, that the author and others had reviewed the
allegedly sealed list of potential jurors on the venire panel for Chua’s criminal trial
16
and were providing information as to whether certain jurors did or did not have ties
to the then Camden County Sheriff. The memo contains five paragraphs of
information and then lists 21 individuals by name and a three-digit number
(presumably their juror number). It then provides some information regarding each
of those individuals.
Given the lack of information regarding the document’s author or authors,12 its
recipients, and the circumstances under which it was written, we find that an
evidentiary hearing is required so that the information necessary to a determination
of the document’s status can be obtained. Once the trial court has obtained the
relevant information about who created the document, for whom it was created, and
why it was created, the trial court should determine whether the evidence shows that
the document constitutes attorney work product. If the document does constitute such
work product, the trial court should then determine whether it contains “the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
12
The memo does contain the author’s office and cell phone numbers. In his
complaint, Chua asserted that these numbers belonged to an individual who in 2007
was both an attorney in Camden County and was serving on the Camden County
Commission. In her answer, however, the District Attorney denied this assertion.
Given these facts, and given that the record contains no other information regarding
the document’s origins, it is impossible for this Court to determine its author or
authors at this point.
17
representative of a party concerning the litigation.” OCGA § 9-11-26 (b) (3). If the
document does contain such absolutely privileged material, then the court should also
determine whether the entire document is privileged or whether the privileged
information could be successfully redacted and the redacted document provided to
Chua.
If the document contains general work product such that only a qualified
privilege applies (or if any opinion work product containing absolutely privileged
material has been redacted), the court should consider whether the procedure set forth
under OCGA § 9-11-26 (b) (3) applies to requests made under ORA where the
responding agency claims an exemption for attorney work product.13 If that procedure
does apply, the court must then determine whether Chua can meet his burden of
showing both that he has a “substantial need” for the items to prepare adequately for
his habeas case and “that he is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.” OCGA § 9-11-26 (b) (3).
13
We realize that this issue is a question of law. Neither of the parties briefed
this question, however, and under the circumstances “it seems most appropriate to
leave it to the trial court on remand” to require the parties to address this issue in the
first instance. Deal, 294 Ga. at 187 (3).
18
For the reasons set forth above, the order of the trial court dismissing with
prejudice Chua’s complaint under the Open Records Act is vacated. The case is
remanded with direction.
Judgment vacated and case remanded with direction. Miller, P. J. and Mercier,
J., concur.
19