297 Ga. 318
FINAL COPY


    S15A0103. EVANS v. GEORGIA BUREAU OF INVESTIGATION.

      HINES, Presiding Justice.

      Christopher A. Evans appeals from the order of the Superior Court of

DeKalb County denying his petition for a writ of mandamus. For the reasons

that follow, we affirm.

      Evans served as Director of Operations for the Georgia Electronic Design

Center at the Georgia Institute of Technology. On September 24, 2010, the

Georgia Bureau of Investigation (“GBI”) obtained two arrest warrants for

Evans, based on allegations that he was part of a racketeering enterprise; arrest

warrants were also obtained for two other persons as part of the same suspected

racketeering activity. The investigation of the alleged racketeering enterprise,

and all three of the persons suspected to be involved, treated the alleged activity

as a single undertaking; one case number was assigned to the combined

investigation of Evans and the other two individuals, and one investigatory file

maintained. On January 19, 2012, the two arrest warrants against Evans were

dismissed, and no indictment had been sought against him as of the time his
petition for a writ of mandamus was denied.

       On July 23, 2013, Evans submitted a request to the GBI under the Open

Records Act, OCGA § 50-18-70 et seq., for materials from its investigative file

that pertained to him. The GBI declined to produce the materials, citing an

exemption for pending investigations. See OCGA § 50-18-72 (a) (4).1 Evans

then sought a writ of mandamus to compel the GBI to produce these materials.

      After a hearing, the trial court found that Evans was not entitled to the

materials he seeks because the Open Records Act exempts from disclosure

records of “law enforcement, prosecution, or regulatory agencies in any pending

investigation. . . . [A]n investigation or prosecution shall no longer be deemed

to be pending when all direct litigation involving such investigation and

      1
          At the time of the trial court’s order, OCGA § 50-18-72 (a) read in pertinent part:

                (a) Public disclosure shall not be required for records that are:

                                               ...

                         (4) Records of law enforcement, prosecution, or regulatory
                agencies in any pending investigation or prosecution of criminal or
                unlawful activity, other than initial police arrest reports and initial
                incident reports; provided, however, that an investigation or
                prosecution shall no longer be deemed to be pending when all direct
                litigation involving such investigation and prosecution has become
                final or otherwise terminated; and provided, further, that this
                paragraph shall not apply to records in the possession of an agency
                that is the subject of the pending investigation or prosecution[.]
                                                  ...

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prosecution has become final or otherwise terminated.” OCGA § 50-18-72 (a)

(4). And, the trial court noted, while the warrants had been dismissed against

Evans, the warrants against the other two individuals had not been dismissed

and remained pending, thus disclosure was not mandated.

      Evans notes that under the Open Records Act there is a presumption that

public records are to be made available for public inspection, and that the

statutory exceptions to that presumption are to be interpreted narrowly. See

OCGA § 50-18-70 (a).2 However, “[a]though exemptions from disclosure under

      2
        OCGA § 50-18-70 reads:
               (a) The General Assembly finds and declares that the strong public policy of
      this state is in favor of open government; that open government is essential to a free,
      open, and democratic society; and that public access to public records should be
      encouraged to foster confidence in government and so that the public can evaluate
      the expenditure of public funds and the efficient and proper functioning of its
      institutions. The General Assembly further finds and declares that there is a strong
      presumption that public records should be made available for public inspection
      without delay. This article shall be broadly construed to allow the inspection of
      governmental records. The exceptions set forth in this article, together with any other
      exception located elsewhere in the Code, shall be interpreted narrowly to exclude
      only those portions of records addressed by such exception.
             (b) As used in this article, the term:
               (1) “Agency” shall have the same meaning as in Code Section 50-14-1 and
      shall additionally include any association, corporation, or other similar organization
      that has a membership or ownership body composed primarily of counties, municipal
      corporations, or school districts of this state, their officers, or any combination
      thereof and derives more than 33 1/3 percent of its general operating budget from
      payments from such political subdivisions.
               (2) “Public record” means all documents, papers, letters, maps, books, tapes,
      photographs, computer based or generated information, data, data fields, or similar
      material prepared and maintained or received by an agency or by a private person or
      entity in the performance of a service or function for or on behalf of an agency or

                                                3
the Open Records Act are narrowly construed, the Act obviously should not be

construed in derogation of its express terms.” Unified Govt. Of Athens-Clarke

County v. Athens Newspapers, LLC, 284 Ga. 192, 195 (1) (633 SE2d 248)

(2008) (Citation and punctuation omitted.) Again, the Act contains an express

exemption from disclosure for “[r]ecords of law enforcement, prosecution, or

regulatory agencies in any pending investigation or prosecution of criminal or

unlawful activity . . . .” OCGA § 50-18-72 (a) (4). And, it is uncontroverted

that the GBI is a law enforcement agency within the meaning of OCGA § 50-18-

72 (a).

      Evans argues that in order for the GBI to assert the “pending

investigation” exemption, it must meet the burden to show that at least one of

the three persons whose alleged activity is addressed in the file is faced with a

prosecution that “is imminent and of a finite duration.” Parker v. Lee, 259 Ga.

195, 198 (5) (378 SE2d 677) (1989). However, Parker, and the principle upon

which Evans relies, concerns OCGA § 50-18-72 (a) (4)’s “pending prosecution”

exemption, not the “pending investigation” exemption, a distinction this Court



      when such documents have been transferred to a private person or entity by an
      agency for storage or future governmental use.

                                           4
made clear in Unified Govt., supra. And, in clarifying that distinction, this Court

stated that in applying the “pending investigation” exemption, it was not

possible to “simply adopt[ ] the judicial definition of the ‘pending prosecution’

exemption in Parker.”       Id.   Rather, under the “pending investigation”

exemption,

      a seemingly inactive investigation which has not yet resulted in a
      prosecution logically “remains undecided,” and is therefore
      “pending,” until it “is concluded and the file closed.” Only at that
      point has an investigation, in the absence of any prosecution,
      reached a decision with a high level of finality, even though it could
      possibly be reopened thereafter.

Id. at 196.

      And, there is no evidence that the racketeering investigation is concluded

or that the file from which Evans requested information can be considered

closed. Even assuming that the dismissal of the racketeering arrest warrants

against Evans establishes that he is not the subject of a pending investigation,

the evidence presented in the trial court was that the two other individuals

arrested at the same time as Evans are suspected of being engaged in a

racketeering scheme with him, and those investigations are still ongoing.

Although Evans contends that the records that prompted his arrest can be


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separated from those of the other two individuals alleged to be involved in

racketeering, and that any evidence about them can be redacted from the records

supplied to him, such was not the evidence presented in the trial court, and

       [t]he focus of subsection (a) (4) . . . is not upon the specific type of
       information contained in law enforcement and prosecution records.
       That subsection broadly exempts from disclosure the entirety of
       such records to the extent they are part of a “pending investigation
       or prosecution” and cannot otherwise be characterized as the initial
       arrest . . . or incident report. [Cit.]

Id. at 195 (Emphasis supplied.) The trial court did not err in concluding that,

under the circumstances presented, the pending investigation exemption of

OCGA § 50-18-72 (a) (4) removed from mandatory disclosure the materials that

Evans requested.3

       Judgment affirmed. All the Justices concur.




       3
         The GBI asserts that the pending investigation exemption does not act in this case so as to
create a bar to the disclosure of the requested records that is of indefinite duration. Rather, it
contends that the five-year statute of limitation for prosecution of racketeering charges, see OCGA
§ 16-14-8, would serve as the outside limit of the period of time that the investigation could be
considered pending. However, no such issue is before us; the trial court’s ruling was procured less
than five years after the last act of racketeering alleged in the arrest warrants that appear in the
record.

                                                 6
                           Decided June 15, 2015.

      Mandamus. DeKalb Superior Court. Before Judge Harvey, pro hac vice.

      Harrison W. Kohler, for appellant.

      Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Rebecca

J. Dobras, Assistant Attorney General, for appellee.




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