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Evidentiary Hearing Required Before Court Can Order State Agency to Produce Email from Backup Tapes

Posted in CASE SUMMARIES

Georgia Dept. of Agric. v. Griffin Ind., 2007 WL 805795 (Ga. Ct. App. Mar. 19, 2007)

In this case, Griffin Industries had sought records from the Georgia Department of Agriculture relating to its facilities’ emissions and odor issues, including relevant emails.  The Department produced documents, but advised that it did not “archive” its emails.  It stated that the only possible source of such information was a series of emergency computer backup tapes, which would be made available.  The parties then corresponded about taking the tapes out of daily backup circulation to avoid erasing data, and about who would pay for replacement tapes necessary to keep the Department’s backup procedures operational.

When the parties were unable to agree, Griffin filed this open records action and immediately moved for an interlocutory injunction or TRO that would prevent the Department “from destroying the requested information pending final resolution of this matter.”  Griffin also subpoenaed the same documents covered in the open records request, and the Department moved to quash the subpoena shortly thereafter.  In its brief on appeal, the Department stated that “out of an abundance of caution, the Department then purchased another set of 31 emergency disaster recovery back-up tapes and secured the 31 tapes which contain data for [the relevant time period.]”  The Department raised in its trial court filings the related issue of the significant cost of compiling the requested information from these tapes, which it explained were designed to restore an entire computer system’s files if needed to perform an “emergency disaster recovery.”  The Department asserted that the emails on the tapes were “in computer language, not archived, and will have to be recreated and then compiled through a laborious process.”

The trial court set a Case Management Conference and ordered the parties to prepare a status report.  The court further advised that, at the conference, the court might rule on “any small motions,” and that it would enter a Scheduling Order following the conference.

The Case Management Conference was held, and the court issued an order about a week later.  The court ordered the Department to “preserve, safeguard and not destroy all electronic data files and correspondence” responsive to the open records act requests.  The court stated that “consequently,” Griffin’s motion for injunctive relief and the Department’s motion to quash were moot.  The court then went on to order the Department to “put the data on any and all backup tapes back into the same document form or format that it was in prior to being backed up, review those documents for privilege, or applicable exemptions as provided for by [the Georgia Open Records Act] . . . and then produce to Plaintiff all those documents that are not either privileged or exempt.”

The Department appealed this order, arguing that the trial court improperly granted full relief to Griffin without proper notice of an evidentiary hearing on all relevant issues.  The state appellate court agreed.  It found that the email issues – i.e., whether the backup tapes were “open records” under GORA, the difficulty and cost of producing the information, and a decision about who was responsible for the cost – were the central issues in the case.  The court’s decision to order the Department to convert the information back into its original form and to produce it to Griffin was therefore a final decision on the relief sought by Griffin.

Accordingly, the trial court’s order was reversed and the matter was remanded to the trial court for further proceedings.

  • todd Brandenburg

    The Georgia Department of Agriculture being an agency of the State of Georgia is subject to the Record Retention Policies as described on the Georgia Secretary of State, Georgia Archives.

    Clearly the Archives cautions agencies of their responsibilities to maintain email according to its subject matter.

    If an agency of the State of Georgia ignores such cautionary and clear obligation and subsequently stores, later discovered relevant email, shouldn’t the cost be bore by the agency for their failure to reasonably anticipate litigation as well as knowingly choosing to archive data which according to the Georgia Archives may at any time be subject to Open Records or discovery requests?