Order: VOTERGA LLC VS GWINNETT COUNTY BOARD OF REGISTRATIONS AND ELECTIONS

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                                IN THE SUPERIOR COURT OF GWINNETT COUNTY

STATE OF GEORGIA
VOTERGA, )
Plaintiff, CIVIL ACTION FILE
v. NO. 20-A-08626-2
GWINNETT COUNTY BOARD OF ; .
REGISTRATIONS AND ELECTIONS, )
Defendant.

ORDER
The case came before the Court for oral argument as to the Motion filed by Plaintiff
VoterGA (“VoterGA”)! for an award of attorneys’ fees and expenses pursuant to O.C.G.A.
§ 9-15-14 and for argument as to a separate Motion filed by VoterGA seeking summary
judgment on Count III of VoterGA’s Complaint, seeking an award of attorneys’ fees and
expenses pursuant to O.C.G.A. § 50-18-73 which is the fee shifting provision in Georgia's
Open Records Act. For the reasons set forth below, the Court grants both of VoterGA’s

motions.

1 Plaintiff is an unincorporated non-profit association that has been erroneously referred
to as “VoterGA, LLC’ in this civil action. On December 10, 2021, Plaintiff filed a Notice
of Consent Amendment of Complaint and Other Filings to Correct Misnomer, and
Consent Motion Regarding Same, addressing this error. On December 13, 2021, the Court
ordered that all pleadings and other filings made in this civil action are amended to
correct the misnomer by substituting “VoterGA” for “VoterGA, LLC” as the plaintiff.

1745373611. BACKGROUND FACTS?

1.1. VoterGA’s Open Records Act Request and the Parties’ Pre-Litigation
Communications Regarding the Request

On August 14, 2020, VoterGA sent a letter to Defendant Gwinnett County Board of
Registrations and Elections (the “Board”) pursuant to Georgia’s Open Records Act,
O.C.G.A. § 50-18-70 et seq. (the “Open Records Act”) requesting copies of approximately
100 scanned electronic ballot images from a county election that took earlier that year.
VoterGA indicated in this letter that it “believe[d]” such images were on the Board’s
computer server. (Stip at Attachment 1.) The Board responded on August 17, 2020,
questioning whether production of the requested records was mandatory and stating that
“out of an abundance of caution, to ensure that no disclosure is made in violation of, or
inconsistent with the law regarding the manner in which post-election materials are to be
handled, we are unwilling to make the requested ballot images available without a court
order.” (Stip. at Attachment 3.) Although the Board did not explicitly state in its response
that the requested records were in its possession, it was implied by the foregoing response.
In any event, the Board made this potentially implicit statement explicit in subsequent
pleadings and communications.

VoterGA advised the Board of its disagreement with the legal reasoning behind the

Board’s stated refusal to produce the requested records, and on August 19, 2020, VoterGA

2 Many of the material facts in this case have been stipulated to by the parties in a
Stipulation of Facts (“Stip.”) that was filed with the Court on February 15, 2021, as Exhibit
“A” to VoterGA’s Memorandum of Law in Support of Plaintiffs Motion for Summary
Judgment.

17453736v1asked the Board to explain why it was “not allowed to view ballot and ballot images in the
custody of the Elections Director.” (Stip. at Attachment 6.) The Board, in response, reiterated
its position that “the Board is not going to make the requested ballot images available
without a court order.” (Stip. at Attachment 7.)

The final communication between the parties occurred on August 26, 2020, when the
Board sent a letter to VoterGA asserting that the requested records were deemed to be under
seal pursuant to O.C.G.A. § 21-2-500, and instructing VoterGA that, if it wanted ballot
images, it would “need to procure a court order, as set forth in O.C.G.A. § 21-2-500, in order
to have access to the records.” (Stip. at Attachment 9.) The Court notes that, among other
things, O.C.G.A. § 21-2-500 requires each county’s supervisor of elections to deliver the
actual paper ballots from an election to the Clerk of the Superior Court in the county, to
be held by the Clerk under seal “unless otherwise directed by the superior court ... .”
O.C.G.A. § 21-2-500(a). This completed the parties’ pre-litigation negotiations and

communications regarding this Open Records Act issue.

1.2. VoterGA’s Preparation and Pursuit of Litigation

Upon receiving the Board’s August 26, 2020 letter, VoterGA determined that it
would pursue litigation against the Board asserting claims for the requested records under
the Open Records Act. It then ceased all party-to-party communications regarding

VoterGA’s request.3 In preparation for the litigation, counsel for VoterGA and counsel for

3 An exception to this are email exchanges between counsel for VoterGA and a
representative of the Board on October 2 and 5, 2020. (See Affidavit of Bryan P. Tyson, the

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17453736v1the Board worked together to research and prepare the Stipulation of Facts to be filed with
the Court so that after VoterGA filed its Complaint, this dispute could be presented to the
Court promptly for resolution without the need for costly and time consuming discovery
or delay. (See, e.g., Tyson Aff. at Exhs. F and G.) The parties researched, prepared, and signed
the Stipulation of Facts prior to VoterGA filing its Complaint on December 30, 2020. The
Board filed its Answer on February 1, 2021, and VoterGA thereafter filed its Motion for
Summary Judgment and the Stipulation of Facts on February 15, 2021.

1.3. The Board’s Affirmative Statements, Made in Connection with the Litigation, that
the Requested Records Were in its Possession

In its Answer, the Board made affirmative statements that the requested records (i.e.,
the electronic ballot images) were in its possession and on its computer server. (Complaint
7 21 and 22; Answer {| 21 and 22.) For example:

e “These copies of electronic ballot images ... remain on the Board’s computer
servers ... .” (Complaint J 21; Answer 21.)

The Board also made affirmative statements in its Stipulation of Facts that the requested
records were in its possession and on its computer server. (Stip. J] 5.3, 5.6, 5.8, 5.9, 5.10,
5.11, 5.12, 5.14, 6.2.) For example:

e “[A] copy of the electronic file [containing the ballot images] exists on ... the
Board’s computer server.” (Stip. 5.6.)

Board's counsel, filed on November 15, 2021 (“Tyson Affidavit” or “Tyson Aff.”), at Exhs.
B, C. D, and E.) VoterGA has specifically excluded from its award request any fees
incurred in relation to these communications. (See Affidavit of Henry R. Chalmers,
VoterGA’s counsel, filed on October 15, 2021 (“Chalmers Affidavit” or “Chalmers Aff.”),
at Exh. 1 (fee entries from those dates are redacted and not included in the fee award
request).)

17453736v1e “The Ballot Images ... that currently reside on the Gwinnett Board's server could
be produced for inspection.” (Stip. 1 5.9, 5.10, 5.11, 5.12.)

¢ “The Ballot Images that VoterGA seeks to inspect under the Open Records Act
are in the custody of the Gwinnett Board.” (Stip. 6.2.)

The Board repeated these affirmative statements in oral argument before the Court on
March 23, 2021. Specifically, the following statements were made:

e “And so now, all that ballot [sic] - scanned ballot image exists in the ballot box, it
exists on the memory card, and it exists on the [Board’s] central election
management server.” (Hearing Transcript at 23:20-22.)

e “[O]ur only request [to VoterGA] was, bring us a court order from the superior
court under 21-2-500 and we'll be happy to turn them [i.e., the requested ballot
images] over.” (Hearing Transcript at 28:6-8.)

The Board admits that these affirmative statements were incorrect. The Board points
to statements from VoterGA (Stip. at Attachment 1) and the Georgia Secretary of State
(Tyson Aff. at Ex. A) indicating where each believed that ballot images were located;
however, the Board was clearly capable of going into its own computer to determine
whether the ballot images were in fact present. The Board has acknowledged that it did not
check within its computer to determine if this was the case prior to indicating that they were
indeed present. (See April 28, 2021 Consent Order at p. 1 (“The Gwinnett Board ... did not
previously determine whether the requested Ballot Images were on its computer server
ay)

14. The Board’s Subsequent Investigation of its Computer and Acknowledgement
that the Requested Records Were Not in its Possession

Several days after the Court’s March 23, 2021 hearing, legislation was enacted that
explicitly defined scanned electronic ballot images to be public records under the Open
Records Act. (See April 28, 2021 Consent Order.) VoterGA contends that the legislation

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17453736v1merely codified the pre-legislation status of the requested records as being subject to the
Open Records Act because the Open Records Act requires production of all public records
unless the requested records are explicitly and specifically exempted from the Open
Records Act’s mandatory production requirement. (See infra Section 3.1.) According to
VoterGA, electronic ballot images are not explicitly exempted from the mandatory
production requirement of the Open Records Act. The Board disagrees and contends that
the requested ballot images fell within pre-existing exclusions.

In any event, after enactment of the legislation, the Board inspected its computer
server for the first time and discovered that, contrary to its above-referenced affirmative
assertions to the Court and to VoterGA, it never had the requested records in its possession.
(See April 28, 2021 Consent Order at p. 1 (“following the March 23 [2021] hearing ... the
Gwinnett Board began to provide the Ballot Images under the Open Records Act and
discovered that the requested Ballot Images are not on the Gwinnett Board's server”
(emphasis in the original)).) The Board told the Court that it had not previously inspected
its own computer server to investigate the actual location of the requested records or the
accuracy of its affirmative statements because the Board had told VoterGA that VoterGA
would have to secure the records by suing the Clerk of the Gwinnett Superior Court,
pursuant to O.C.G.A. § 21-2-500 if it wanted them. (See April 28, 2021, Consent Order at p.
2)

The Board advised the Court that it was unaware prior to April 2021 that it did not
possess the requested records, and VoterGA does not dispute this position. The Board

then proposed that the Court execute a Consent Order requiring that the sealed

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17453736v1containers in possession of the Clerk of the Gwinnett Superior Court containing the
underlying paper ballots be unsealed so the Board could then copy and produce these
ballots to VoterGA. (See April 28, 2021 Consent Order.) Following the entry of this
Consent Order on April 28, 2021, the Board utilized the Court's April 28, 2021 Consent
Order to facilitate production. (See July 30, 2021 Consent Order at p. 1.)
1.5. Litigation Following the Production of Records to VoterGA

After the Board facilitated the production of the requested records, the Court
entered its July 30, 2021 Consent Order, dismissing Counts I and II of VoterGA’s
Complaint (seeking production of the records) as moot, but leaving Count III pending
(seeking attorneys’ fees under the Open Records Act’s mandatory fee shifting provision
found in O.C.G.A. § 50-18-73). Following dismissal of Counts I and II, the only issue
remaining before the Court at that time was VoterGA’s Motion For Summary Judgment
on Count III of VoterGA’s Complaint (the “50-18-73 Motion”). With leave of Court,
VoterGA filed a Supplemental Memorandum of Law in Support of Plaintiff’s Motion for
Summary Judgment regarding Count III to which the Board responded on September 7,
2021, followed by a reply brief from VoterGA filed on September 29, 2021. Thereafter, on
October 15, 2021, VoterGA filed Plaintiffs Motion to Recover Fees and Expenses from
Defendant Pursuant to O.C.G.A. § 9-15-14 (the “9-15-14 Motion”) to which the Board
responded on November 15, 2021.

On December 2, 2021, the Court conducted a hearing on VoterGA’s 9-15-14 Motion
and its 50-18-73 Motion. At the hearing, the Court admitted into evidence the Chalmers

Affidavit (filed on October 15, 2021), along with the Tyson Affidavit (filed on November

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17453736v115, 2021). The Court also qualified Mr. Chalmers as an expert with regard to the
reasonableness of the hourly rates charged by his law firm, Arnall Golden Gregory LLP
(‘AGG’), in its representation of VoterGA in this litigation and with regard to the
reasonableness and necessity of the hours expended and amounts charged in connection
with said representation. Mr. Chalmers thereafter provided testimony consistent with the

Chalmers Affidavit and was subjected to cross-examination thereon.

1.6. VoterGA’s Motions Seek an Award of Fees and Expenses Based on the Board’s
Positions and Conduct in Connection with this Litigation, and not Based on the
Board’s Prior Interactions with VoterGA or its Counsel Regarding Performance or
Non-Performance of VoterGA’s Open Records Act Request.

In both of its Motions, VoterGA has limited its request for an award of fees and
expenses to those that it contends were incurred solely in connection with the litigation.
VoterGA has explicitly disclaimed any request for an award that would include fees and
expenses incurred through August 26, 2020, while the parties were communicating
regarding VoterGA’s Open Records Act request. The unrefuted evidence is that after
August 26, 2020, the parties and their counsel ceased communicating with one another
about addressing or resolving the underlying Open Records Act request and instead
VoterGA’s counsel devoted all of its time and expense solely to preparing and
prosecuting this litigation. (Chalmers Aff. 4 13, 18, and Exh. 1; cf. supra footnote 3.) It is
only the fees and expenses incurred in connection with this latter preparation and

prosecution of litigation for which VoterGA seeks an award, and it is only the Board’s

post-August 26, 2020, statements and arguments for which VoterGA seeks its award.

17453736v12. VOTERGA’S 9-15-14 MOTION
VoterGA seeks an award of $93,476.85 as reimbursement for the reasonable fees and
expenses incurred in connection with this litigation. Although it seeks an award of fees
under the following three separate statutory grounds, the Court awards fees based on the
grounds set forth below:

1) Section 9-15-14(b), which empowers a court to award reasonable and
necessary fees and expenses incurred in connection with litigation “if it finds
that ... a party unnecessarily expanded the proceeding by other improper
conduct.”

2) Section 9-15-14(b), which also empowers a court to award reasonable and
necessary fees and expenses incurred in connection with litigation if it finds
that a “party ... defended an action, or any part thereof, that lacked
substantial justification ... .”

See Cobb Cnty. V. Sevani, 196 Ga. App. 247, 248 (1990) (“The focus of [9-15-14] is clearly
upon actions that are undertaken in connection with the underlying legal proceedings,
and not upon the pre-litigation actions of one who only subsequently becomes a party to
a legal proceeding.” (emphasis added)).

Georgia law provides that litigants asserting a position that is groundless should
bear the costs and attorneys’ fees that opposing parties incur as a result of their actions.
Ferguson v. City of Doraville, 186 Ga. App. 430, 439 (“damages authorized by O.C.G.A. § 9-

15-14 ... are intended not merely to punish or deter litigation abuses but also to recompense

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17453736v1litigants who are forced to expend their resources in contending with claims, defenses or
other positions with respect to which there exists such a complete absence of any justiciable
issue of law or fact that it could not be reasonably believed that a court would accept the
asserted claim, defense, or other position”), cert. denied, 186 Ga. App. 918 (1988) and overruled
on other grounds by Vogtle v. Coleman, 259 Ga. 115 (1989).

Pursuant to subsection (b) of O.C.G.A. § 9-15-14, a Court “may assess reasonable
and necessary attorney's fees and expenses of litigation in any civil action . . . if, upon the
motion of any party or the court itself, it finds that an attorney or party brought or defended
an action, or any part thereof, that lacked substantial justification ... or if it finds that an
attorney or party unnecessarily expanded the proceeding by other improper conduct ... .”
O.C.G.A. § 9-15-14(b) (emphasis added). The term “lacked substantial justification” means
“substantially frivolous, substantially groundless, or substantially vexatious.” Id. Georgia
courts have found such discretionary fee awards appropriate when parties have: (1)
pursued a position in the absence of any supporting authority, and (2) failed to verify
allegations that could have been verified easily. See Sun-Pac. Enter., Inc. v. Girardot, 251 Ga.
App. 101, 107 (2001); Forest Lake Home Owners Assoc. v. Green Indus., Inc., 218 Ga. App. 890,
895 (1995); Stancil v. Gwinnett Cnty., 259 Ga. 507, 508-59 (1989).

Furthermore, under O.C.G.A. § 9-15-14(a) or (b), an award of reasonable and
necessary attorneys’ fees and expenses is appropriate when the offending party’s assertion
of a groundless position could have been avoided “with a minimum amount of diligence.”
Stancil, 259 Ga. at 509; accord Moore v. Harris, 201 Ga. App. 248, 250 (1991). Without candor
by litigants, the integrity of the judicial process is undermined. Accordingly, Georgia courts

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17453736v1have found discretionary awards appropriate when parties have failed to verify allegations
that could have been verified easily. Haggard, 257 Ga. at 526 (granting attorneys’ fees under
O.C.G.A. § 9-15-14 where plaintiffs “made inaccurate allegations, which easily could have
been verified”); Forest Lake, 218 Ga. App. at 895 (granting attorneys’ fees under O.C.G.A. §
9-15-14 because “a minimum amount of diligence, a review of public records, as well as
their own [documents]” would have revealed to plaintiffs that their position was
groundless); Stancil, 259 Ga. at 508-59.

2.1. VoterGA’s Motion for Fees and Expenses Under O.C.G.A. § 9-15-14(b) for
Unnecessary Expansion of the Proceeding by Improper Conduct

The Court finds that VoterGA is entitled to an award of its reasonable and
necessary fees and expenses incurred in connection with this litigation under subsection
(b) of O.C.G.A. § 9-15-14 because the Board “unnecessarily expanded the proceeding by
... improper conduct.” The Board undeniably made inaccurate representations to the
Court and to VoterGA in connection with this litigation regarding a central material fact
in the case, i.e., that the requested records serving as the basis for VoterGA’s lawsuit were
in the Board’s possession on its computer server and that successful litigation under the
Open Records Act would result in their production. The Board admits that it did not
inspect its computer to determine the actual status of the requested records or the
accuracy of its statements until months into the litigation. Thus, the Board’s assertion that
the requested records were in its possession would have been otherwise had it exercised
“a minimum amount of diligence.” See Sun-Pac. Enter., Inc., 251 Ga. App. at 107 (fees
awarded where the other party pursued a position that lacked support and failed to verify

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17453736v1allegations that could have been verified); Stancil, 259 Ga. at 509 (“because appellant could
have made this determination with a minimum amount of diligence, we affirm the award
of attorney fees [under O.C.G.A. § 9-15-14(b)].”); Forest Lake Home Owners Assoc., 218 Ga.
App. at 895; Moore v. Harris, 201 Ga. App. 248, 250 (1991).

The Georgia Supreme Court has made it clear that a movant under this provision in
subsection (b) of O.C.G.A. § 9-15-14 does not have to prevail on its underlying claims to
recover its related fees and expenses. Rather, the movant need only show that the other
party’s conduct was improper, and that the proceedings were unnecessarily expanded as a
result. See Betallic, Inc. v. Deavours, 263 Ga. 796, 796 (1994) (overruling Court of Appeals’
finding to the contrary). Thus, the fact that the Court’s April 28, 2021, Consent Order and
the Board’s subsequent facilitation of the record production to VoterGA rendered Counts I
and II of VoterGA’s Complaint moot does not negate VoterGA’s entitlement to a fee award
under this provision of subsection (b) of O.C.G.A. § 9-15-14. See Robinson v. Glass, 302 Ga.
App. 742, 745-46 (2010) (the defendant argued that the plaintiff was not entitled to an
award under O.C.G.A. § 9-15-14 because her claims were dismissed as moot after the
defendant produced the requested documents; the Supreme Court disagreed, finding
that “O.C.G.A. § 9-15-14 does not limit recovery to a certain party, but permits any party to
recover from another party who has unnecessarily expanded the proceeding by improper
conduct ... . The Supreme Court expressly reversed this court’s holding in Deavours v.
Hog Mountain Creations, 207 Ga. App. 577, 559(3) (1998), that a claim for litigation costs

and attorney fees is available only to a prevailing party.”).

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17453736v1Here, the uncontroverted evidence before the Court is that VoterGA would not have
initiated or continued to pursue this lawsuit had it known that the records it was seeking
from the Board were not in the Board’s possession. (See Chalmers Aff. 9.) This is
understandable, as the Court could not make an agency produce what it did not have in its
own custody.4

For these reasons, the Court finds that VoterGA is entitled to an award of its
reasonable and necessary attorneys’ fees and expenses under this provision of O.C.G.A. §
9-15-14(b) because the Board unnecessarily expanded the proceedings by engaging in the
conduct referenced above.

2.2. VoterGA’s Motion for Fees and Expenses Under O.C.G.A. § 9-15-14(b) for
Defending Part of An Action That Lacked Substantial Justification.

In addition to and/or as an alternative to its findings above, the Court finds that
VoterGA is also entitled to an award of the reasonable and necessary fees and expenses

incurred in connection with this litigation under subsection (b) of O.C.G.A. § 9-15-14

4 The Court ultimately ordered, pursuant to O.C.G.A. § 21-2-500, that the sealed
containers, which were in the Clerk of the Court’s possession, be unsealed so that the
ballot images could be copied and given to VoterGA. (See April 28, 2021 Consent Order.)
This was done at the Board’s initiation and with the Board’s consent. (See id.) Because the
sealed containers are exclusively by the Clerk of the Court, O.C.G.A. § 21-2-500 only
contemplates such orders being directed at those Clerks, and not at other agencies (such as
the Board). Accordingly, it would have been beyond the Court's power to order the Board
to secure the records from the Clerk. See O.C.G.A. § 50-18-73(a) (courts can only order an
agency to produce records that are in the agency’s actual custody); Schulten, Ward & Turner,
LLP v. Fulton-DeKalb Hospital Auth., 272 Ga. 725 (2000) (if a requested record does not exist
within the agency’s custody, the agency has no duty to create the record through other
means). Thus, had VoterGA been informed that the Board did not possess the requested
records, there would have been no reason to pursue litigation against the Board to try to
secure their production.

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17453736v1because the Board “defended ... part [of this lawsuit in a manner] that lacked substantial
justification.” See O.C.G.A. § 9-15-14(b). As used in this code section, the term “lacked
substantial justification” includes “substantially groundless.” O.C.G.A. § 9-15-14(b).

As discussed herein, the Board affirmatively indicated that the requested records
were in its possession on its computer server and that if VoterGa was successful in this
litigation, such would presumably be produced. This position was substantially
groundless, as it was false and contrary to the actual facts. See O.C.G.A. § 9-15-14(b). The
Court also finds that the Board had within its exclusive possession information and
evidence that disproved this position, but it continued to assert this position for a number
of months without first investigating whether its assertions were accurate.

Again, the fact that the April 28, 2021 Consent Order and the Board’s subsequent
facilitation of the record production to VoterGA rendered Counts I and II of VoterGA’s
Complaint moot does not negate VoterGA’s entitlement to a fee award under this ae
of subsection (b) of O.C.G.A. § 9-15-14. See Robinson v. Glass, 302 Ga. App. 742, 745-46
(2010). VoterGA is entitled to an award of its reasonable and necessary attorneys’ fees and
expenses under this provision of O.C.G.A. § 9-15-14(b) because the Board defended a
portion of this lawsuit in a manner that lacked substantial justification.

2.3. The Board Cannot Avail Itself of a Good Faith Exception to an Award

The Board argues that it acted in good faith notwithstanding the inaccurate
statements made as to its possession of the records underlying this action. O.C.G.A. § 9-15-
14 does not recognize a good faith exception to an award of fees and expenses other than a

“good faith attempt to establish a new theory of law in Georgia if such new theory of law is

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17453736v1based on some recognized precedential or persuasive authority.” O.C.G.A. § 9-15-14(c). The
Board has not asserted an attempt to establish a new theory of law, so this exception is
inapplicable. See Matthews v. Mills, 357 Ga. App. 214, 220 (2020) (“merely pursuing a course
of litigation in good faith [does not] automatically insulate a plaintiff from a claim for
litigation costs and attorney fees.”); Atlanta Propeller Serv., Inc. v. Hoffmann GmbH & Co.,191
Ga. App. 529, 530 (1989) (where plaintiff erroneously misrepresented cited authorities,
“even though made in good faith ... the defendant is entitled to damages for abusive
litigation.”)

It does not matter whether the Board knew of the falsity of its statements at the
time it made them in light of the fact that it could have easily determined the accuracy of
its statements before making them. Unfortunately, it did not do so. Cf Combs v. Adair
Mortg. Co., 245 Ga. 296, 296 (1980) (it is a “long recognized and established rule that any
party testifying in his own behalf is held to a strict standard of candor and responsibility
for his own statements ... .”), Even if, as the Board argues, the Board may not have been
required to search its computer before responding to VoterGA’s Open Records Request,
it was nonetheless obligated to look at its computer before making affirmative statements
to the Court that the records at issue in the litigation were in fact on the computer server.

3. VOTERGA’S 50-18-73 MOTION

VoterGA has also asserted a right to an award under the mandatory fee provision in
Georgia’s Open Records Act, O.C.G.A. § 50-18-73(a), which requires a court to award fees
and expenses against an agency that “acted without substantial justification ... in not

complying with [the Open Records Act], unless it finds that special circumstances exist.”

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17453736v13.1. Georgia’s Open Records Act

“The purpose of the Open Records Act is to encourage public access to
government information and to foster confidence in government through openness to the
public.” McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369, 369 (1992). The Georgia
General Assembly has instructed that the Act must “be broadly construed to allow the
inspection of governmental records,” and exceptions to disclosure must “be interpreted
narrowly.” O.C.G.A. § 50-18-70(a).

Georgia’s Open Records Act enshrines the high value that the State of Georgia
places on an open and accountable government. Georgia law mandates that persons who
pursue litigation to elicit a government agency’s compliance with the Act “shall” have
their “reasonable attorneys’ fees and other litigation costs reasonably incurred”
reimbursed by the agency. Id. § 50-18-73(b). It is not necessary that the agency acted in
bad faith or even negligently, because the fee provision is not designed to be punitive. It
is intended instead to make whole the person or entity that pursued litigation to enforce
its rights under the Act.

3.2. O.C.G.A. § 21-2-500(a) did not Exempt from Disclosure the Type of Records the
Board Declared to be in its Possession

During the time period between late August of 2020 and early April of 2021, the
Board represented to VoterGA that the records it requested were in the Board’s
possession and on its computer server but that because O.C.G.A. § 21-2-500(a) placed
them under seal, the requested records were outside of the scope of the Act. The Board
advised VoterGA that an order would be required, thereby necessitating the initiation of

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17453736v1this litigation. Based on the foregoing, the Court finds that VoterGA is entitled to
reimbursement of its legal fees and expenses under the Open Records Act
notwithstanding that the requested records ultimately were determined not to exist in
the Board's possession.

While O.C.G.A. § 21-2-500(a) does explicitly place under seal certain specific items
and devices containing copies of ballot images that have been delivered to the Clerk of
the Superior Court, it does not place under seal other copies of those images that may
reside elsewhere, such as with the Board. See O.C.G.A. § 21-2-500(a); Smith v. DeKalb
County, 288 Ga. App. 574, 577 (2007) (confirming that “the CD-ROM [at issue in the case]
is statutorily designated to be kept under seal,” [which is distinct from data that may
reside on other external media, such as the Board’s county election computer server, that
are not delivered to the Clerk of the Court and are not under seal]). Because the Open
Records Act directs that any exceptions to disclosure must be interpreted narrowly to
apply only to those records specifically exempted from disclosure, O.C.G.A. § 21-2-500(a)
cannot be read to reach electronic ballot images that the Board stated were in its
possession. See City of Atlanta v. Corey Ent., Inc., 278 Ga 474, 476 (2004) (the Georgia Open
Records Act “treats all public records as subject to disclosure, ‘except those which by
order of a court of this state or by law are prohibited or specifically exempted from being
open to inspection.””; and “because public policy strongly favors open government, any
purported statutory exemption from disclosure under the Open Records Act must be
narrowly construed.” (emphasis in the original); O.C.G.A. § 50-18-70(a) (“[TJhere is a

strong presumption that public records should be made available for public inspection

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17453736v1without delay. [The Open Records Act] shall be broadly construed to allow the inspection
of government 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.”); id. § 50-18-71(a) (exceptions
found outside of the Open Records Act itself must “specifically exempt[]” the requested
records to overcome the Open Records Act’s mandatory disclosure requirement);
Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 830 (2018)
(“Under our State's Open Records Act, ‘[a]ll public records shall be open for personal
inspection and copying, except those which by order of a court of this state or by law are
specifically exempted from disclosure.’ OCGA § 50-18-71(a). Government agencies
therefore have a duty to disclose public records unless relieved of that duty by a specific
exemption or court order.”); Office of the Georgia Attorney General, GEORGIA’S SUNSHINE
Law, A CITIZEN’S GUIDE TO OPEN GOVERNMENT at p. 2 (5th edition 2014) (“The starting
place under Georgia law for citizens seeking ... to inspect governmental records is the
presumption that the ... records are open.”). The Board’s reliance on O.C.G.A. § 21-2-
500(a) was thus misplaced.

An agency cannot be said to comply with the Open Records Act when it makes an
affirmative statement to a requester that responsive public records exist in the agency’s
possession, where (i) the statement is material and incorrect, (ii) its inaccuracy could have
been determined by the agency before making the statement, and (iii) the agency asserts

a refusal to produce the public records represented to be in its possession thereby

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17453736v1prompting the requester to pursue litigation under the Open Records Act to seek their

production.

3.3. Smith v. DeKalb County did not Exempt from Disclosure the Type of Records
Declared to be in the Board’s Possession

Although Smith v. DeKalb County, 288 Ga. App. 574 (2007) exempts some
specifically-defined records from mandatory disclosure under the Open Records Act, it
would not have reached electronic ballot images that the Board declared to be in its
possession. In Smith, the plaintiff sought to inspect CD-ROMS belonging to the DeKalb
County Director of Voter Registration and Elections, which contained copies of
information on voting machine memory cards, as well as all ballot images, vote totals,
and a copy of consolidated returns from the County’s election management computer
system. Id. at 574-75. Evidence developed during the litigation revealed that the CD-
ROMS also contained passwords, encryption codes, and other security information. Id. at
577. The court found that the CD-ROMS themselves were not subject to disclosure under
Georgia’s Open Records Act because Georgia law requires election superintendents to
save the information to external storage hardware, like CD-ROMS, immediately upon
completing the returns, and requires that the CD-ROMS themselves be kept under seal
and exempted from inspection. Id. (citing O.C.G.A. § 21-2-500(a) and Ga. Comp. R. &
Regs. 183-1-12-.13). This ensures that a control set of all of these records will exist under

seal with the Clerk of the Court on the CD-ROMS should later review of them become

necessary.

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17453736v1The court also found, alternatively, that the CD-ROMS fell under a separate
exemption to Georgia’s Open Records Act for “material which if made public could
compromise security against sabotage, criminal, or terroristic acts” because they
“contain[ed] passwords, encryption codes, and other security information [whose
disclosure] would compromise election security.” Id.

The records requested by VoterGA in this case differ from the CD-ROMS
requested in Smith. VoterGA did not request access to any items actually placed under
seal, e.g.: paper ballots, memory cards, CD-ROMS, and external memory storage devices.
(Stip. { 5.8.) See O.C.G.A. § 21-2-500(a), (c); Ga. Comp. R. & Regs. 183-1-12-.13(a), (b), (c).
In addition, VoterGA did not request access to passwords, encryption codes, or other
security information that could compromise election security. (Stip. { 5.8.) VoterGA
explicitly clarified that it was not making a request for such records or for any related
information that could present a security threat (Stip. { 5.8), and the Board acknowledged
that inspection of ballot images would not risk disclosure of, or harm to, any such records
or information. (Stip. J 5.9 - 5.12.)

3.4. VoterGA was not Limited to Pursuing the Requested Records Though O.C.G.A.
§ 21-2-500

The Board contends that, because VoterGA could have pursued the records through
a lawsuit against the Clerk of the Superior Court via O.C.G.A. § 21-2-500 , the Open Records
Act was “the wrong legal vehicle to obtain the requested records.” (Defendant's Response
in Opposition to Plaintiff’s Motion to Recover Fees and Expenses From Defendant Pursuant
to O.C.G.A. § 9-15-14, filed on November 15, 2021, at p. 8.) The Board also contends that

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17453736v1filing a lawsuit against the Clerk of the Gwinnett Superior Court pursuant to O.C.G.A. § 21-
2-500 would have been, in the Board’s view, “the most clear and expeditious route to
obtaining the documents Plaintiff sought, and/or the method to learn that the Board did
not have possession of the requested [records].” (Id. at p. 7.) While VoterGA could have
chosen to initiate litigation against the Clerk of the Gwinnett Superior Court for access to
the Clerk’s copies of the requested records, VoterGA also had the option of requesting
records from the Board under the Open Records Act, just as anyone has the option of
requesting records from a government agency under the Act.

The existence of alternative sources of requesting records does not divest one of the
right to seek those same records from an agency through the Open Records Act. There is
nothing in the Act to support this position, nor is the Court aware of any authority
elsewhere. Moreover, requiring a requester to pursue litigation instead of an Open Records
Act request would improperly deprive the requester of the quick and inexpensive, non-
litigation option that is liberally provided for in the Open Records Act. See Millar v. Fayette
Cnty. Sherriff's Dept., 241 Ga. App. 659, 659-60 (1999); Central Atlanta Progress, Inc. v. Baker,
278 Ga. App. 733, 734-35 (2006).

3.5. The Board did not act with Substantial Justification nor did Special
Circumstances Exist

The Court does not find that the Board acted with “substantial justification,” as it
has acknowledged that it “did not previously determine whether the requested Ballot
Images were on its computer server.” (April 28, 2021 Consent Order.) Had the Board
advised VoterGA that the requested records did not reside in the Board’s possession,

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17453736v1VoterGA would have had no reason to initiate this civil action against it, and it would
not have incurred legal fees to do so. (See supra Section 2.1; Chalmers Aff. { 9.)

Even if the Board’s erroneous interpretation of O.C.G.A. § 21-2-500 had been made
in good faith, such does not constitute substantial justification for its inaction. The Open
Records Act does not make an award of fees contingent on bad faith, nor does it provide
an exception for negligence or mistake to the Act’s mandatory fee provision. The Court
is aware of no authority for the proposition that an agency’s misinterpretation of the law
acts as substantial justification and this deprives a plaintiff of its statutory right to fees.
The Board is charged with knowledge of what the law required, see O.C.G.A. § 1-3-65

The Court also finds that no “special circumstances” existed. The Board argued
that the complexity and importance of Georgia’s election laws justified the Board in
taking a “cautious” approach by refusing to produce records that it affirmatively
indicated were in its possession. However, the Open Records Act requires production
absent a specific exemption for the requested records, and no allowance is made in the

statute for an entity faced with a complex decision, especially when a “cautious”

5 An instructive example of what constitutes substantial justification or special
circumstances is when an agency tries, but ultimately fails, to produce requested records in
a timely manner. For example, in Schick v. Board of Regents of University System of Georgia, 334
Ga. App. 425, 458-59 (2015), the court found substantial justification where the agency
produced the requested documents, but nonetheless violated the Act by producing some
(less than 6%) of them late, where there was no evidence that certain documents were
singled out for delay or otherwise withheld, and where evidence was presented that the
agency and its employees worked nights and during holidays to ensure the production was
completed.

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17453736v1approach has the effect of forcing the requester to incur the expense and delay of
litigation.

The Board also argued that special circumstances existed because VoterGA had a
history of voicing concern over the reliability of paperless voting systems and because
the Board feared that VoterGA might use the requested records as part of its investigation
into the reliability and accuracy of elections. (See Defendant’s Response in Opposition to
Plaintiffs Motion for Summary Judgment, filed on March 17, 2021, at p. 12.) The law is
clear, however, that neither the identity of a requesting party nor the purpose to which
that party may put the requested records can abridge the party’s rights under the Open
Records Act.6

For the reasons set forth above, the Court finds that VoterGA is entitled to an award

of its reasonable attorneys’ fees and expenses under O.C.G.A. § 50-18-73,”

6 See Smith v. Northside Hosp., 347 Ga. App. 700, 705 (2018) (“[The agency] concedes that
the identity and purposes of [the requesting party has] no bearing on whether he has
standing to seek access to public documents via an open-records request.”); Parker v. Lee,
259 Ga. 195, 199 (1989) (“We thus find no reason to distinguish [the plaintiff death row
inmate’s] (or any other individual citizen’s) right of access from [any other requester’s]
right of access”); Office of the Georgia Attorney General, GEORGIA’S SUNSHINE LAW, A
CITIZEN’s GUIDE TO OPEN GOVERNMENT at p. 4 (“It is irrelevant what the purpose of a
particular request is.”).

7 Although VoterGA has only sought recovery of its fees and expenses incurred after
August 26, 2020 incurred in connection with this litigation, the Court notes that an award
under O.C.G.A. § 50-18-73 is not limited to those fees and expenses incurred only in
connection with litigation, and would support an award of fees and expenses incurred prior
to that point in time as well.

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17453736v14, VOTERGA’S LEGAL FEES AND EXPENSES
INCURRED IN CONNECTION WITH THE LITIGATION

Mr. Chalmers’s Affidavit and testimony demonstrate that, between August 26, 2020
(the date the parties completed their non-litigation-connected interactions regarding
VoterGA’s Open Records Act request) and September 30, 2021(the date through which
VoterGA seeks to recover its fees and expenses), VoterGA incurred $93,142.50 in fees and
$334.35 in expenses, for a total of $93,476.85 in connection with this litigation. (See Chalmers
Aff. ¥ 14.) Mr. Chalmers testified that, of that amount, $28,462.00 was incurred between
August 26, 2020 and December 30, 2020, when VoterGA filed its Complaint; an additional
$1,574.00 was incurred after December 30, 2020 and through February 1, 2021, when the
Board filed its Answer; and an additional $63,440.85 was incurred after February 1, 2021
and through September 30, 2021, the last day for which VoterGA has sought a fee award.

Mr. Chalmers also testified that the entire $93,476.85 was incurred after the parties
and counsel had ceased negotiating and communicating regarding a possible resolution of
VoterGA’s Open Records Act request without the need for litigation and that the entire
amount was incurred in connection with the litigation. More specifically, Mr. Chalmers
testified that the full amount was incurred exclusively and solely in connection with
researching, drafting, and filing pleadings and related documents with the Court and
communications relating thereto, and with preparing for and participating in oral argument
before the Court, and was not incurred as part of the underlying events on which the
litigation is based. (See Chalmers Aff. 4 13, 18.) Mr. Chalmers also testified that the time
and expense incurred after August 26, 2020, but prior to the Board filing its Answer, was

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17453736v1spent researching and drafting VoterGA’s Complaint and Motion for Summary Judgment,
and researching, negotiating, and drafting the Stipulation of Facts in support of the Motion
for Summary Judgment. In addition, Mr. Chalmers testified that VoterGA would not have
initiated or pursued this litigation but for the Board’s representations that the requested
records were in the Board’s possession and that the successful outcome of this litigation
would be their production. (See Chalmers Aff. ¥ 9.)

After being qualified as an expert and presenting testimony and evidence, Mr.
Chalmers offered his opinion that AGG’s hourly rates are within the market range charged
for work by attorneys and paralegals of comparable experience and background on similar
matters and are therefore reasonable. Mr. Chalmers also opined that all of the time for
services and the amounts billed for expenditures were reasonable and necessary to respond,
in connection with the litigation, to the conduct by the Board at issue in the motions. (See
Chalmers Aff. 1 21, 21.)

Counsel for the Board subjected Mr. Chalmers to cross-examination, but there was
no testimony elicited to contradict Mr. Chalmers’ testimony or Affidavit. The Board did not
present any witnesses or evidence as to the calculation, reasonableness, or necessity of the
fees and expenses sought herein by VoterGA.

The Court finds that the hourly rates billed by Arnall Golden Gregory’s timekeepers
was reasonable. The Court also finds that the $93,476.85 sought by VoterGA was incurred
“in connection with’ this litigation and was reasonable and necessary in the litigation of this

action. See Cobb Cnty. V. Sevani, 196 Ga. App. 247, 248 (1990). More specifically, the Court

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17453736v1finds that the hours billed and amounts charged by AGG’s timekeepers, individually and
collectively, were reasonable and necessary.
5. CONCLUSION

The Court GRANTS Plaintiff VoterGA’s 9-15-14 Motion as to subsection (b);

The Court GRANTS Plaintiff VoterGA’s 50-18-73 Motion and enters summary
judgment in VoterGA’s favor as to Count III of VoterGA’s Complaint.

The Court FINDS that Plaintiff VoterGA is entitled to an award of its reasonable and
necessary attorneys’ fees and expenses in the amount of $93,476.85 pursuant to the
provisions in O.C.G.A. § 9-15-14(b) that permit an award for unnecessarily expanding the
proceeding by improper conduct and for defending part of an action that lacks
substantial justification;

The Court FINDS that Plaintiff VoterGA is entitled to an award of its reasonable fees
and expenses in the amount of $93,476.85 pursuant to O.C.G.A. § 50-18-73;

For purposes of clarification, the Court FINDS that all or any combination of the
above awards entitle Plaintiff VoterGA to a single, non-duplicative award of $93,476.85,
as opposed to any cumulative amount in excess thereof. Accordingly, Defendant Gwinnett
County Board of Registrations and Election shall pay to Plaintiff VoterGA the sum of
$93,476.85 as reimbursement for its attorneys’ fees and expenses incurred herein.

SO ORDERED, this a 1 Fey of January, 2022.

Aare Coon

Honorable Tracie H. Cason, Judge
Superior Court of Gwinnett County

Copy to: Counsel of Record

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