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June 19, 2015
On June 15, 2015, the Supreme Court of Georgia affirmed a trial court’s denial of the Petitioner’s Writ of Mandamus which sought documents pursuant to an Open Records Act Request in Evans v. GBI, S15A0103. In his writ, the Petitioner sought to have the Georgia Bureau of Investigation turn over to him all of the documents in their custody pertaining to a RICO investigation where he was a suspect, pursuant to the Georgia Open Record Statutes, O.C.G.A 50-18-70 et al.
In 2010, Evans and two other individuals were arrested by the GBI on RICO charges. Even though there were 3 alleged perpetrators, GBI assigned only 1 investigative number and 1 case number encompassing all 3 Defendants. In 2012, the arrest warrant against Mr. Evans was dismissed, but the warrants pertaining to the other two alleged perpetrators remained open.
In July of 2013, and pursuant to O.C.G.A. 50-18-70, Evans submitted a request to the GBI for the investigative files pertaining to the investigation of him. GBI refused to produce the documents citing the exemption for pending investigations. O.C.G.A. 50-18-72(a)(4). Evans sought a Writ of Mandamus to have these documents produced. The trial court held that GBI could not be compelled to disclose the information as the “open records act exempts records of law enforcement, prosecution, or regulatory agencies in any pending investigation.”
On appeal, Evans argued that the documents should be produced because there was no longer an investigation and argued that the “investigation or prosecution shall no longer be deemed pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated.” Based on the fact that the warrant against him had been dismissed, Evans argued that the case was terminated and that the statutory exemption did not apply in his case.
The Supreme Court rejected Petitioner’s argument. The Court reasoned that since the case remained open against two other individuals and that G.B.I. had only assigned one investigative and one case number to all 3 individuals, the case had not been terminated and therefore, the GBI could not be required to turn over the materials requested.
Interestingly, the Evans case leaves open the critical question of when the Open Records Act exemption ceases to apply. For example, even though a warrant has been dismissed, a grand jury can be convened at any time during the statute of limitations, and Evans could still be facing charges, (RICO has a seven years statute of limitations). The Evans decision does not foreclose the possibility that the exemption would cease to apply at some point prior to the statute of limitations but fails to give us clear guidance on when that would occur.