Pursuant to the Open Records Act (Act), OCGA 50-18-70
et seq., Schulten, Ward & Turner, LLP (Schulten) sent a written request to Fulton-DeKalb Hospital Authority (Authority) for the following:
All records from 1995 to the present concerning collection claims for medical goods or services asserted against a Medicare beneficiary, or a liability insurer, subsequent to the billing of Medicare by the . . . Authority . . ., which resulted in payments to the [Authority] in excess of the Medicare allowed amount by Medicare beneficiaries individually, or liability insurers, other than payments for deductibles, co-insurance amounts and non-covered charges.
In its initial response, the Authority stated that, although it was in the process of searching and retrieving documents, it was not required to prepare reports, summaries, or compilations not in existence at the time of the request. Thereafter, the Vice President for Legal Affairs and General Counsel for the Authority, Timothy Jefferson, informed Schulten that the Authority could not honor the request, having "determined that any documents which may be responsive to [the] request are exempt from public disclosure pursuant to" the medical records exemption found in OCGA 50-18-72
(a) (2). Schulten filed a petition for writ of mandamus to compel the Authority and Jefferson (Appellees) to permit it to inspect and copy the records which it sought. Appellees moved for summary judgment on the ground, among others, that the requested records were not subject to the Act because compliance with the request would require the Authority to audit its Medicare accounts and compile information, in violation of OCGA 50-18-70
(d). The trial court denied mandamus relief, stating that Schulten "does not demonstrate that the requested documents are clearly public records and does not establish a clear legal right to the relief sought in the petition. OCGA 9-6-20
." Schulten appeals from this order.
the Act. OCGA 50-18-73
(a). Public officers or agencies cannot have custody of that which does not exist. See Zinngrabe v. School Dist. of Sevastopol, 431 NW2d 734, 736 (Wis. App. 1988). The Act is "designed to make existing records and documents available to the public. . . ." Zinngrabe v. School Dist. of Sevastopol, supra at 736. Like similar acts in other jurisdictions, it places no duty on an officer or agency to create a record, but "concerns itself only with the records which a public body actually creates." Hoffman v. Bay City School Dist., 357 NW2d 686, 689 (Mich. App. 1984). As used in the Act, the term "public record" includes "all documents, papers, . . . computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency." (Emphasis supplied.) OCGA 50-18-70
(a). Unless a writing or information stored on a computer is prepared and maintained or received in the course of an agency's operations, "it is not a public record, and its disclosure would not be governed by [the] [A]ct." Hoffman v. Bay City School Dist., supra at 688.
Kerner v. State Teachers Retirement Bd., supra at 258; Op. Att'y Gen. 89-32. The evidence shows that the Authority "does not have an automated or 'batch' program to routinely compile and print out these records in a single report. . . ." Gabriels v. Curiale, supra at 883. See also Op. Att'y Gen., supra. Accordingly, the Authority has not, in the course of its operations, prepared, maintained, received, or compiled the information requested by Schulten. Therefore, that information was not an existing "public record," and non-disclosure thereof did not violate the Act.
Schulten contends that this ground for non-disclosure was waived because Appellees failed to meet the statutory requirement that, within certain time constraints, the public officer or agency, "if access to such record or records is denied . . ., shall specify in writing the specific legal authority exempting such record or records from disclosure, by Code section, subsection, and paragraph." OCGA 50-18-72
(h). As shown above, however, the failure to furnish nonexistent records does not constitute a denial of a request for access to public records. Zinngrabe v. School Dist. of Sevastopol, supra at 735. An agency does not "deny" access to records which do not exist. A statutory requirement for a written statement of the reasons for denial of a request for access to public records does not require the public officer or agency to specify in writing that such records were never created. Zinngrabe v. School Dist. of Sevastopol, supra at 735. Likewise, we limit to its terms the requirement of OCGA 50-18-72
(h) that the legal authority for an exemption of records from disclosure be timely specified in writing. See State ex rel. Blum v. Bd. of Education, 565 NW2d 140, 144 (d) (Wis. App. 1997) (additionally limiting the same provision construed in Zinngrabe). An exemption from disclosure is not applicable where the records cannot be disclosed because they do not exist. Thus, OCGA 50-18-72
(h) is not applicable here, because there was no denial of access to records, no exemption of records, and no violation of the Act.
"The law is well settled that mandamus relief is available only if the petitioner has a clear legal right to the relief sought and that there is no other adequate legal remedy. [Cit.]" Hall v. Madison, 263 Ga. 73
, 74 (428 SE2d 345
) (1993). See also Hatcher v. Hancock County Commrs., 239 Ga. 229 (3) (236 SE2d 577) (1977)
. Because Schulten does not have a clear legal right to the documents sought, the trial court correctly denied mandamus relief.