IN THE SUPERIOR COURT OF ATHENS-CLARKE COUNTY
STATE OF GEORGIA

JOHN DOE,

Plaintiff,

v.

THE RED & BLACK PUBLISHING
CO., INC. and BOARD OF
REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA,

Defendants.
*

* Civil Action No. SU-93-CV-0847-S

FILED IN OFFICE
This 6th day of May 1993

ORDER DISSOLVING TEMPORARY RESTRAINING ORDER DISMISSING PLAINTIFF'S COMPLAINT

Plaintiff ("John Doe") filed his Complaint on April 27, 1993, asking that Defendant Board of Regents be enjoined from turning over to Defendant Red & Black Publishing Co. records of Student Judiciary proceedings involving Plaintiff. Plaintiff further requests that The Red & Black be enjoined from publishing those records or the real name of the Plaintiff. The Court entered a Temporary Restraining Order and Red & Black filed a motion to Dissolve. A hearing on the Motion to dissolve was held on May 5, 1993.

Plaintiff's Complaint alleges that if his records and his true name were published his reputation would be harmed, he would be subjected to unnecessary scrutiny and his right to privacy would be violated. He also avers that the Student Judiciary records are "educational records" as defined in the Federal Family Educational Rights and Privacy Act, 20 USC 1232g(a) (4) (A), and are thus exempt from inspection.

Defendant Red & Black's Motion to Dissolve alleges that:(l) the Temporary Restraining Order was entered without notice under O.C.G.A. Sec. 9-11-65; (2) the Temporary Restraining Order constituted an unconstitutional prior restraint;and (3) the Temporary Restraining Order violates the Open Records Act.

The Court finds that Plaintiff followed proper procedure for notice under O.C.G.A. Sec. 9-11-65 (b)(2) but does not reach the prior restraint issue because Defendant's Motion to Dissolve is granted on other grounds.

Defendant Board of Regents appeared through counsel and provided the Court with the records at issue. The Court performed an in camera inspection of the records in order to decide whether or not they were exempt from the Open Records Act. The parties acquiesced to this procedure, which effectively consolidates the hearing with the trial on the merits.

The Court finds that the records of the Main Court of the Student Judiciary are "public records" under the Open Records Act and, unless specifically exempted under O.C.G.A. Sec. 50- 18-72, are open to inspection by the public.

Plaintiff alleges that the exemptions under O.C.G.A. Sec. 50-18-72 (a) (l).and (2) apply because the records are either "specifically required by the federal government to be kept confidential under the so called "Buckley Amendment", (20 USC Sec. 1232 (g)) or they are "similar" to medical or veterinary records "the disclosure of which would be an invasion of personal privacy."

The Court finds that the first exemption alleged by Plaintiff under O.C.G.A. Sec. 50-18-72(a)(1) has already been decided adversely to him by the Georgia Supreme Court in The Red & Black Publishing Co., Inc. v. The Board of Regents, Case Nos. S92A1111, S92X112, (Mar. 15, 1993). There, the Supreme Court found that even if the "Buckley Amendment" were construed to prevent disclosure, records of the Student Judiciary's Organization Court were not "education records" as defined in the Amendment. Likewise, this Court finds that the Main Court Records are not "education records" for the same reasons articulated by the Supreme Court in the case above-cited.

The second exemption alleged by the Plaintiff under O.C.G.A. Sec. 50-18-72 (a),(2), together with his allegation that release and publication of the records would "harm his reputation" and "subject him to unnecessary scrutiny" involves the issue of whether disclosure would invade the personal privacy of the Plaintiff. In order for this second exemption to apply, the Court would have to determine that the records are similar to medical or veterinary files and that the disclosure would be an invasion of personal privacy. The test to be applied in this instance has been articulated by the Georgia Appellate Courts. In Athens Observer v. Anderson, 245 Ga. 63 (1980), the Supreme Court said that "the invasion of personal privacy encompassed as an exception to the right of the public to access is to be determined by an examination of the tort of invasion of privacy". The Supreme Court further described the privacy right of an individual as "the right of a person ... to be free from unwarranted publicity .. of the unwarranted appropriation of one's personality, the publishing of one's private affairs with which the public has no legitimate concern." This limitation, the Court concluded, does not restrain "legitimate inquiry into the operation of a government and those employed by it". Athens Observer, supra, p. 66. Whether or not the records at issue in the instant case are the subject of a legitimate public inquiry has to be determined by this court through its in-camera inspection. See Harris v. Cox, 256 Ga. 299 (1986).

In Dortch v. Atlanta Journal and Constitution, 261 Ca. 350 (1991) the court further defined the elements necessary to recover for an invasion of one's right of privacy: 1) there must be a public disclosure of facts which are private, secret or secluded; and 2) "the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibility under the circumstances". Dutch,supra p. 351.. Similarly the Court of Appeals in Tucker v. News Publishing Company, 197 App. 85 (1990), in granting summary judgment to the newspaper in a tort case based an invasion of privacy, found that there is no violation of a citizen's right of privacy when a publication prints facts which are a matter of public interest and which are the subject of legitimate inquiry.

The Court finds that the facts involved in this case as reflected in the records of the Main Court of the Student Judiciary are a matter of legitimate public interest and inquiry. Pretermitting the question of whether the files are similar to medical or veterinary records, the Court can find nothing in the files which would constitute an invasion of the personal privacy of the Plaintiff under the tests outlined by the Appellate Courts and applied herein.

Therefore, the Court is constrained to find that the records reviewed by this Court from the Student Judiciary proceedings are subject to the Open Records Act.

Accordingly, the Temporary Restraining Order is dissolved and the Plaintiff's Complaint dismissed.

This 6th day of May, 1993.

Lawton E. Stephens

Judge, Superior Courts, Western Judicial Circuit

JOHN DOE v. RED & BLACK PUBLISHING CO., INC., et

S93A1674

SUPREME COURT OF GEORGIA

November 8, 1993, Decided

OPINION BY: PER CURIUM

OPINION: PER CURIUM

Judgment affirmed without opinion pursuant to Rule 59.

All the Justices concur except Sears-Collins, J. , not participating.

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