NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 22, 2024
S24A0617. GONZALEZ v. MILLER.
ELLINGTON, Justice.
Pursuant to a granted interlocutory appeal, Deborah Gonzalez,
District Attorney for the Western Judicial Circuit, challenges an
order of the Superior Court of Clarke County denying her motion to
dismiss Jarrod Miller’s complaint filed pursuant to the Open
Records Act (“ORA”), OCGA § 50-18-70 et seq. Miller averred that
Gonzalez, individually and in her official capacity as district
attorney and as the custodian of public records for the district
attorney’s office, violated provisions of the ORA, and he seeks,
among other things, enforcement of his requests for public records.
Gonzalez contends that neither she nor her office is subject to the
ORA because district attorneys are constitutional officers of the
judicial branch of government. She also contends that Miller lacks
constitutional standing to bring an enforcement action under the
ORA and that prosecutorial immunity bars Miller’s suit.
Essentially, this appeal is about whether Miller’s lawsuit to enforce
the ORA against the District Attorney’s office may proceed. As
explained more fully below, the lawsuit may proceed because
Gonzalez has not shown reversible error. Therefore, we affirm the
order of the trial court.
1. Standard of Review and Pertinent Facts. This appeal
presents questions of law, and questions of law are subject to de novo
review. Hardin v. Hardin, 301 Ga. 532, 536 (801 SE2d 774) (2017).
Additionally, “a trial court’s ruling on a motion to dismiss for failure
to state a claim for which relief may be granted is reviewed de
novo[,]” Northway v. Allen, 291 Ga. 227, 229 (728 SE2d 624) (2012),
as is a trial court’s ruling on a motion for a judgment on the
pleadings, Reliance Equities v. Lanier 5, 299 Ga. 891, 893 (1) (792
SE2d 680) (2016). We accept as true “all well-pled material
allegations in the complaint and [resolve] any doubts in favor of [the
plaintiff].” Greene County School Dist. v. Circle Y Constr., 291 Ga.
111, 112 (728 SE2d 184) (2012). “For the purposes of a motion for
2
judgment on the pleadings, all well-[pled] material allegations of the
opposing party’s pleading are to be taken as true, and all allegations
of the moving party which have been denied are taken as false.”
(Citation and punctuation omitted.) Trop, Inc. v. City of Brookhaven,
296 Ga. 85, 86-87 (1) (764 SE2d 398) (2014).
The pertinent facts of this case are as follows. Deborah
Gonzalez is the District Attorney for the Western Judicial Circuit,
which is comprised of Oconee and Athens-Clarke Counties. See
OCGA § 15-6-1 (42). Miller avers that he is a citizen, taxpayer, and
resident of Athens-Clarke County. In his complaint, Miller alleged
that Gonzalez failed to uphold her duties under the ORA to produce
public records related to the various functions of the district
attorney’s office, including records that show “unprecedented staff
shortages, staggering caseloads, violations of crime victims’ rights,
failure . . . to effectively prosecute criminal cases, and an open
disregard for the laws of the State of Georgia.” Miller’s counsel,
Kevin Epps, had previously sent requests for various public records
on Miller’s behalf to Gonzalez and the district attorney’s office
3
pursuant to the ORA. Miller also filed a mandamus action to compel
Gonzalez to perform certain duties.1 Miller asserts that Gonzalez
responded to Miller’s ORA requests through her government email
account and signed all invoices related to the requests with her esignature, which Miller contends shows that she was acting as the
custodian of public records for the district attorney’s office.
However, Gonzalez allegedly failed timely to produce all of the
requested records, which Miller contends violated the ORA.
Miller filed a verified complaint on June 7, 2023, seeking to
compel Gonzalez to produce the previously requested public records
maintained by the district attorney’s office and to obtain other
remedies available under the ORA. He also alleged that Gonzalez
directed at least one of her employees to delete or destroy
1 Gonzalez filed a motion to dismiss the mandamus action, which the
trial court denied, and it further denied her request for a certificate of
immediate review. Gonzalez then filed a confession to judgment in the trial
court pursuant to OCGA § 9-12-18 (a) and appealed therefrom to this Court.
We transferred the matter to the Court of Appeals on jurisdictional grounds by
order dated July 25, 2023, in Case No. S23A0994. The Court of Appeals later
dismissed Gonzalez’s appeal, see Gonzalez v. Miller, 372 Ga. App. 264 (903
SE2d 920) (2024), and Gonzalez’s petition for certiorari review of that
dismissal is pending before this Court in Case No. S24C1344.
4
correspondence between Gonzalez and an assistant district
attorney. Miller filed the complaint against Gonzalez (a) in her
official capacity as district attorney and ORA custodian for the
district attorney’s office based on her alleged failure to timely
produce or to permit the inspection of the requested public records,
and (b) in both her individual and official capacities based on the
alleged knowing and willful destruction of correspondence he
contends constitutes a public record. The “district attorney’s office”
is not named separately as a party to Miller’s complaint.
When Gonzalez filed her answer to Miller’s complaint, she also
filed a “Motion to Dismiss Complaint and Motion for Judgment on
the Pleadings.” In that motion, Gonzalez argued, among other
things, that neither she nor her office is subject to the ORA because
she is a constitutional officer of Georgia’s judicial branch of
government, that she is shielded from Miller’s private action under
the ORA by prosecutorial immunity, and that Miller lacks standing
to enforce the ORA claims Miller asserted.
The trial court held a hearing on Gonzalez’s motion on
5
November 2, 2023. The following day, the trial court filed a written
order denying the motion in large part.2 The trial court rejected
Gonzalez’s argument that, as a district attorney, she is a “judicial
officer” under Ga. Const. of 1983, Art. VI, Sec. VIII, Par. I, stating
that “[n]otably absent from any of [her] duties is anything that
resembles the interpretation of state law or the adjudication of civil
or criminal cases.” The trial court concluded that Gonzalez “is a
prosecuting officer who has the duty to appear in the superior court
and represent the state in felony proceedings,” which “is not a
judicial function.” The court reasoned that “[t]he district attorneys[’]
duties are pre-eminently executive since they are Georgia’s
prosecutors for felony cases.” The trial court impliedly rejected
Gonzalez’s argument that she is entitled to prosecutorial immunity
2 The trial court ruled in Gonzalez’s favor in part, ruling that three
exhibits “indicate compliance by the defendant. The court will not grant any
further relief as to the three requests listed in Exhibit 63, 64 and 92.” Gonzalez also claimed a pending-prosecution exception pursuant to OCGA § 50-18-72 (a)
(4) for the documents requested in Exhibit 87. The trial court ruled that Miller
“is entitled to a hearing on that claimed exemption.”
6
from a private suit brought pursuant to the ORA. 3 The trial court
further ruled that Miller had standing to bring the ORA
enforcement action under OCGA § 50-18-73 (a).
On November 7, 2023, the trial court granted Gonzalez’s
request for a certificate of immediate review, and this Court granted
her application for an interlocutory appeal on December 27, 2023.4
In her appellate brief, Gonzalez contends that the trial court erred
3 Although Gonzalez argued that district attorneys have absolute
prosecutorial immunity from civil liability for private actions arising from the
performance of her official duties, including actions taken pursuant to the
ORA, the trial court rejected Gonzalez’s argument on sovereign immunity
grounds. Even though the court did not explicitly address Gonzalez’s claim of
prosecutorial immunity, it nonetheless appears to have ruled on it with respect
to Miller’s official-capacity claims, by necessary implication, because it
ultimately denied her motion to dismiss the complaint against her. See Wilkes
& McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 257 (1) (c) n.6 (2019)
(The Court of Appeals properly transferred the appeal to this Court where the
trial court implicitly rejected the defendants’ constitutional challenge to a
statute they were accused of violating when it denied the defendants’ motion
to strike.).
4 Upon granting the application, we informed the parties that we were
particularly concerned with the following questions:
1. Does the constitutional immunity enjoyed by district attorneys
from private suit for actions arising from the performance of their
duties, see Ga. Const. of 1983, Art. VI, Sec. VIII, Par. I (e), bar
enforcement actions brought pursuant to the Open Records Act,
OCGA § 50-18-70 et seq.?
2. Does the Open Records Act apply to district attorneys’ offices?
See OCGA § 50-18-70 et seq.; cf. Coggin v. Davey, 233 Ga. 407 (211
SE2d 708) (1975).
Case No. S24I0374, order dated December 27, 2023.
7
in denying her motion to dismiss the complaint, reiterating her trial
court arguments. The trial court held as a matter of statutory
construction that the ORA applies to public records maintained by
district attorneys’ offices and rejected Gonzalez’s constitutional
arguments to the contrary. We agree. We hold that the text of the
ORA applies to district attorneys’ offices; that Gonzalez’s
separation-of-powers argument fails because district attorneys’
offices exercise executive power; that Miller has constitutional
standing to bring this enforcement action against Gonzalez; and
that the constitutional prosecutorial immunity conferred upon
district attorneys does not bar Miller’s official-capacity claims
against Gonzalez.
2. Standing. Gonzalez contends that Miller lacks constitutional
standing to sue because he did not personally make the ORA
requests at issue here. However, in his verified complaint, Miller
averred that he requested “through [his] undersigned counsel”
public records from the district attorney’s office pursuant to the
ORA. He further averred that he brought the enforcement action to
8
compel Gonzalez to perform her duty to produce or to provide access
to the public records that he sought under the ORA. Gonzalez
argues that, because Epps, Miller’s attorney, made the ORA
requests without revealing to her that he was acting on Miller’s
behalf, Miller’s complaint seeking enforcement of the ORA is a
“derivative action” and that Miller is merely a proxy for Epps, who
is the “real party in interest.” Gonzalez contends that, under these
circumstances, Miller has not shown that he suffered a sufficient
cognizable injury separate and apart from the statutory
authorization to bring a suit to enforce the ORA. See Sons of
Confederate Veterans v. Henry County Bd. of Commissioners, 315
Ga. 39, 54 (2) (c) (880 SE2d 168) (2022).
As explained in Division 1, supra, we accept as true “all wellpled material allegations in the complaint and [resolve] any doubts
in favor of [the plaintiff].” Greene County, 291 Ga. at 112. Here, we
must accept as true that Miller directed his attorney to make the
records requests on Miller’s behalf. Thus, contrary to Gonzalez’s
argument, Miller has alleged that Gonzalez violated his right to
9
inspect public records under the ORA by not complying with his
request to inspect those records. Absent any other argument from
Gonzalez on the question of Miller’s constitutional standing, we
must accept that Miller has alleged a cognizable injury sufficient at
this stage of the litigation to establish constitutional standing. See
Sons of Confederate Veterans, 315 Ga. at 54 (2) (c).
3. Open Records Act. Gonzalez contends that Miller’s complaint
must be dismissed for failing to state a claim upon which relief may
be granted because neither she nor her office are subject to the ORA.
The text of the ORA does not support this contention.
(a) The ORA applies to public records maintained by district
attorneys’ offices. Code section 50-18-71 (a) provides, in pertinent
part, that “[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.” The statute
further provides for how “agencies” are to maintain their records and
how they are required to respond to requests for those records. See
OCGA § 50-18-71 (a) through (k). The ORA thus imposes a duty
10
upon “agencies” to produce or to provide access to public records
upon a proper request.5 See OCGA § 50-18-71 (b) (1); Campaign for
Accountability v. Consumer Credit Research Foundation, 303 Ga.
828, 830 (2) (815 SE2d 841) (2018) (“Government agencies therefore
have a duty to disclose public records unless relieved of that duty by
a specific exemption or court order.”).
“Agency” is defined in the ORA by incorporating the definition
of “agency” set forth in the Open Meetings Act (“OMA”). 6 See OCGA
§ 50-18-70 (b) (1). As defined in the OMA, “agency” serves as a
placeholder for an expansive array of state and local government
entities and means “[e]very state department, agency, board,
bureau, office, commission, public corporation, and authority[,]” as
5 Gonzalez has not challenged the form of the requests, the method by
which they were submitted to her as the custodian of records for her office, or
whether the records sought were public records under the ORA. Consequently,
we do not address these issues.
6 The ORA’s definition of “agency”
additionally include[s] any association, corporation, or other
similar organization that has a membership or ownership body
composed primarily of counties, municipal corporations, or school
districts of this state, their officers, or any combination thereof and
derives more than 33 1/3 percent of its general operating budget
from payments from such political subdivisions.
OCGA § 50-18-70 (b) (1).
11
well as “[e]very department, agency, board, bureau, office,
commission, authority, or similar body of each such county,
municipal corporation, or other political subdivision of the state.”
(Emphasis supplied.) OCGA § 50-14-1 (a) (1) (A), (C).7 Miller
contends that district attorneys’ offices are offices as used in the
ORA. For the following reasons, we agree.
“Office” itself is not defined in the ORA or the OMA; therefore,
7 OCGA § 50-14-1 (a) (1) provides:
“Agency” means:
(A) Every state department, agency, board, bureau, office,
commission, public corporation, and authority;
(B) Every county, municipal corporation, school district, or other
political subdivision of this state;
(C) Every department, agency, board, bureau, office, commission,
authority, or similar body of each such county, municipal
corporation, or other political subdivision of the state;
(D) Every city, county, regional, or other authority established
pursuant to the laws of this state; and
(E) Any nonprofit organization to which there is a direct allocation
of tax funds made by the governing body of any agency as defined
in this paragraph which constitutes more than 33 ⅓ percent of the
funds from all sources of such organization; provided, however,
that this subparagraph shall not include hospitals, nursing homes,
dispensers of pharmaceutical products, or any other type
organization, person, or firm furnishing medical or health services
to a citizen for which they receive reimbursement from the state
whether directly or indirectly; nor shall this term include a
subagency or affiliate of such a nonprofit organization from or
through which the allocation of tax funds is made.
12
we must turn to the principles of statutory construction to discern
its meaning. As we have explained,
“[w]hen we consider the meaning of a statute, we must
presume that the General Assembly meant what it said
and said what it meant.” Deal v. Coleman, 294 Ga. 170,
172 (1) (a) (751 SE2d 337) (2013) (citation and
punctuation omitted). And “[a]s in all cases of statutory
construction, we remain mindful that we must give the
text its plain and ordinary meaning, view it in the context
in which it appears, and read it in its most natural and
reasonable way.” State v. Cook, 317 Ga. 659, 660 (1) (893
SE2d 670) (2023) (citation and punctuation omitted). We
determine the ordinary public meaning of legal text by
considering the meaning the text had at the time it was
enacted. See Seals v. State, 311 Ga. 739, 740 (1) (860 SE2d
419) (2021), disapproved of on other grounds by Gonzales
v. State, 315 Ga. 661 (884 SE2d 339) (2023). Dictionaries
are often helpful “[i]n ascertaining the ordinary meaning
of a word that is not defined in a statute,” but they “cannot
be the definitive source of ordinary meaning in questions
of textual interpretation because they are acontextual,
and context is a critical determinant of meaning.”
McBrayer v. Scarbrough, 317 Ga. 387, 394 (2) (d) (893
SE2d 660) (2023) (citation and punctuation omitted).
City of Winder v. Barrow County, 318 Ga. 550, 555 (1) (899 SE2d
157) (2024). See also Integon Indem. Corp. v. Canal Ins. Co., 256 Ga.
692, 693 (353 SE2d 186) (1987) (“Statutes should be read according
to the natural and most obvious import of the language, without
13
resorting to subtle and forced constructions, for the purpose of either
limiting or extending their operation.”).
Dictionary definitions of “office” include a position of trust, a
political subdivision or subunit of government, or a physical space
where business is conducted or services are provided, and the
meaning to be ascribed to the word largely depends on its context.8
In the ORA, the term “office” is listed alongside terms like
8 The meaning of the word “office” has not changed since OCGA § 50-14-1 (a) was amended in 2012, see Ga. L. 2012, p. 218, § 1, to include the word in
the definition of “agency.” See, e.g., Office, Black’s Law Dictionary (9th ed.
2009) (“A position of duty, trust, or authority, esp. one conferred by a
governmental authority for a public purpose <the office of attorney general>.
2. (often cap.) A division of the U.S. government ranking immediately below a
department <the Patent and Trademark Office>. 3. A place where business is
conducted or services are performed <a law office>.”); Office, Id. (1. A position
of duty, trust, or authority, esp. one conferred by a governmental authority for
a public purpose <the office of attorney general>. 2. (often cap.) A division of
the U.S. government ranking immediately below a department <the Patent
and Trademark Office>. 3. A place where business is conducted or services are
performed <a law office>. In sense 3, an office may be a building, a suite of
rooms in the building, or an individual room within the building or suite.
Context usually clarifies the precise sense.”). See also Merriam-Webster’s
Online Dictionary (last visited October 3, 2024), https://www.merriamwebster.com/dictionary/office (“Office” is defined as “1a: a special duty, charge, or position conferred by an exercise of governmental authority and for a public
purpose : a position of authority to exercise a public function and to receive
whatever emoluments may belong to it; 1b: a position of responsibility or some
degree of executive authority; . . .5: a place where a particular kind of business is transacted or a service is supplied . . .; 7a: a major administrative unit in
some governments. . . b: a subdivision of some government departments[.]”).
14
“department,” “agency,” “board,” and “bureau” – terms that describe
specific types of governmental subunits. 9 Applying the canon of
noscitur a sociis 10 the word “office” should be understood in relation
to the other words listed in the statutory provision, because “words,
like people, are judged by the company they keep.” (Citation and
9 Compare, for example, the dictionary definitions of “board,”
“commission,” and “department.” See Board, Black’s Law Dictionary (9th ed.
2009) (“2. A group of persons having managerial, supervisory, or advisory
powers <board of trade>.”); Commission, Id. (“3. A body of persons acting under
lawful authority to perform certain public services <the Federal
Communications Commission>.”); Department, Id. (“3. A principal branch or
division of government, whether national or local; esp., a division of the
executive branch of the U.S. government, headed by a secretary who is a
member of the President’s cabinet <Department of Labor>. — Also termed
government department; governmental department.”). We note that the
definitions of these words have not change since the legislature amended the
definition of “agency” in 2012. See Board, Black’s Law Dictionary (12th ed.
2024) (“2. A group of persons having managerial, supervisory, or advisory
powers <board of trade>.”); Commission, Id. (“3. A body of persons acting under
lawful authority to perform certain public services <the Federal
Communications Commission>.”); Department, Id. (“3. A principal branch or
division of government, whether national or local; esp., a division of the
executive branch of the U.S. government, headed by a secretary who is a
member of the President’s cabinet <Department of Labor>. — Also termed
government department; governmental department.”).
10 “Noscitur a sociis” translates from Latin as “it is known by its
associates.” Noscitur a sociis, Black’s Law Dictionary (12th ed. 2024). See also
Burke v. State, 208 Ga. App. 446 (1) (430 S.E.2d 816) (1993) (“Under the
maxim, noscitur a sociis, the meaning of words or phrases in a statute may be
ascertained from others with which they are associated and from which they
cannot be separated without impairing or destroying the evident sense they
were designed to convey in the connection used.” (citations and punctuation
omitted)).
15
punctuation omitted.) Warren v. State, 294 Ga. 589, 590-591 (1) (755
SE2d 171) (2014). This is not to say that “office” necessarily means
any and every subunit of state government. Indeed, such a reading
would make surplusage of most every other term in the definition of
“agency,” each of which describe specific kinds of governmental
subunits, and we generally read statutes in a way that gives
meaning to each term and avoids surplusage. See Lucas v. Beckman
Coulter, Inc., 303 Ga. 261, 263 (811 SE2d 369) (2018) (“In
interpreting a statute, we apply the fundamental rules of statutory
construction that require us to construe the statute according to its
own terms, to give words their plain and ordinary meaning, and to
avoid a construction that makes some language mere surplusage.”
(citation omitted)). In this case, though, we need not determine the
outer bounds of the term “office” as used in the ORA to resolve the
question whether district attorneys’ offices are covered by the ORA
because the General Assembly has largely resolved that question for
us. In numerous other provisions of the Code, the General Assembly
– which we presume to enact laws with knowledge of preexisting
16
law, including the definition of “agency” in the ORA – has both
expressly recognized the existence of a “district attorney’s office”
and assigned that office various powers and obligations under the
law. 11 Thus, a district attorney’s office is not only a subunit of state
government, it is a distinct legal entity recognized by law and
specifically described by the legislature as an “office.” Whatever the
outer bounds of the term “office” as used in the ORA may be, a
district attorney’s office fits within those bounds. Therefore, because
11 In other Code provisions referencing the “district attorney’s office,” the
General Assembly similarly has used the word “office” in a manner indicating
that a district attorney’s office is a group of people organized into a subunit of state government. See, e.g., OCGA § 15-18-5 (a) (providing a procedure for
“[w]hen a district attorney’s office is disqualified” from a case); § 15-18-5 (g)
(providing that “[a]ny order entered by a court disqualifying a district
attorney’s office from engaging in the prosecution shall specify the legal basis
for such order,” and authorizing the district attorney to seek immediate review
of that order); § 15-18-6.1 (c) (setting forth procedures for when “the district
attorney determines that his or her office cannot provide representation for the
state in a juvenile court of a county”); 15-18-14.1 (c) (3) (authorizing the district attorney to appoint an investigator to “[a]ssist the attorneys within the district attorney’s office in the preparation of cases”); § 15-18-14.1 (e) (2) (“Any person who is employed in a nonstate paid investigator’s position within a district
attorney’s office may be transferred to a state paid position.”); § 15-18-20 (a)
(“The district attorney shall define the duties and fix the title of any attorney
or other employee of the district attorney’s office.”); § 15-18-23 (describing how the offices, expenses, and supplies of district attorneys’ offices are to be paid); § 15-18-28 (a) (emphasizing that “each personnel position in the office of a
district attorney . . . shall continue to exist or be authorized within such judicial circuit until otherwise provided by law”).
17
the Office of the District Attorney for the Western Judicial Circuit
satisfies the ORA’s definition of “agency,” the District Attorney’s
Office is subject to the ORA. See OCGA § 50-14-1 (a) (1) (A).
Gonzalez contends, however, that the ORA applies only to
offices within the executive branch of government, relying on two
decisions handed down from this Court in the 1970s, Harrison Co.
v. Code Revision Comm., 244 Ga. 325 (260 SE2d 30) (1979), and
Coggin v. Davey, 233 Ga. 407 (211 SE2d 708) (1975). Based on these
cases, she argues in part and as a matter of separation of powers,
that the ORA does not apply to agencies that exist within the judicial
branch of government. Gonzalez misconstrues this Court’s case law.
In Coggin, we held that, although the predecessor to the OMA “is
applicable to the departments, agencies, boards, bureaus, etc. of this
state and its political subdivisions[,] [i]t is not applicable to the
General Assembly” as a matter of statutory construction because the
definition of “agency” did not include any term that could be
construed to include the General Assembly. 233 Ga. at 411 (II). In
Harrison Co., which involved a dispute concerning a state contract,
18
we discussed a rule of statutory construction, now codified at OCGA
§ 1-3-8, 12 explaining that “the state is not subject to a law unless
named therein or the intent that it be included be clear and
unmistakable.” Harrison Co,, 244 Ga. at 328 (1). Neither of these
cases included a holding on the issue of separation of powers and
neither supports an argument that district attorney’s offices are not
subject to the ORA. Moreover, Gonzalez’s argument fundamentally
misunderstands Georgia’s separation-of-powers doctrine.
The Constitution of the State of Georgia provides:
The legislative, judicial, and executive powers shall
forever remain separate and distinct; and no person
discharging the duties of one shall at the same time
exercise the functions of either of the others except as
herein provided.
Ga. Const. of 1983, Art. I, Sec. II, Par. III (emphasis supplied). This
constitutional provision calls for the separation of powers, not the
separation of branches or departments of government. Moreover,
12 OCGA § 1-3-8 provides that “[t]he state is not bound by the passage of
a law unless it is named therein or unless the words of the law are so plain,
clear, and unmistakable as to leave no doubt as to the intention of the General
Assembly.” See also former Ga. Code Ann. of 1933 § 102-109.
19
the separation-of-powers doctrine does not apply when another
provision of the constitution specifically allows for the simultaneous
exercise of different governmental powers. Thus, the separation-ofpowers doctrine does not prohibit an agency or constitutional officer
located within one branch of government from exercising powers
exercised by agencies or officers located in a different branch of
government if the constitution expressly grants such power. See In
re Pending Cases, Augusta Judicial Circuit, 234 Ga. 264, 266 (215
SE2d 473) (1975) (“The three departments of government are not
kept wholly separate in the Georgia Constitution.”). An instructive
example of this concerns the constitutional powers granted to the
Lieutenant Governor. Our state constitution provides that the
Lieutenant Governor exercises both Article V executive power and
Article III legislative power.13 See Ga. Const. of 1983, Art. V, Sec. I,
13 The Georgia Constitution provides that “[t]he legislative power of the
state shall be vested in a General Assembly which shall consist of a Senate and
a House of Representatives.” Ga. Const. of 1983 Art. III, Sec. I, Par. I. With
respect to executive power, the Constitution provides that the “[t]he chief
executive powers shall be vested in the Governor. The other executive officers
shall have such powers as may be prescribed by this Constitution and by law.”
20
Par. III (“The Lieutenant Governor shall be the President of the
Senate and shall have such executive duties as prescribed by the
Governor and as may be prescribed by law not inconsistent with the
powers of the Governor or other provisions of this Constitution.”);
Ga. Const. of 1983, Art. III, Sec. III, Par. I (a) (“The presiding officer
of the Senate shall be styled the President of the Senate.”). This
arrangement does not violate the constitutional separation-ofpowers doctrine because our constitution expressly permits the
Lieutenant Governor to exercise both legislative and executive
powers.
In a similar vein, our state constitution creates district
attorneys in Article VI, pertaining to the judicial branch of
government, yet it vests district attorneys with executive power:
It shall be the duty of the district attorney to represent
the state in all criminal cases in the superior court of such
district attorney’s circuit and in all cases appealed from
the superior court and the juvenile courts of that circuit
Id. at Art. V, Sec. II, Par. I. See also id. at Art. V, Sec. III, Par. III (“Except as otherwise provided in this Constitution, the General Assembly shall prescribe
the powers, duties, compensation, and allowances of the above executive
officers and provide assistance and expenses necessary for the operation of the
department of each.”).
21
to the Supreme Court and the Court of Appeals and to
perform such other duties as shall be required by law.
See Ga. Const. of 1983, Art. VI, Sec. XIII, Par. I (d). Although the
constitution does not expressly state that district attorneys exercise
executive power, that conclusion is inescapable for the following
reasons. First, judicial and legislative powers are expressly reserved
to other governmental entities. The constitution provides that “[t]he
judicial power of the state shall be vested exclusively in the following
classes of courts: magistrate courts, probate courts, juvenile courts,
state courts, superior courts, state-wide business court, Court of
Appeals, and Supreme Court.” Ga. Const. of 1983 Art. VI, Sec. I, Par.
I (emphasis added). Both by its express terms and by its context, the
vesting of the judicial power “exclusively” in the classes of courts
excludes the possibility that district attorneys are vested with
judicial power. 14 Similarly, the legislative power is vested in the
14 In 1975, this Court suggested that the functions of a district attorney
may not be “exclusively executive.” See In re Pending Cases, 234 Ga. at 266
(“[W]e conclude that the functions of district attorneys are not exclusively
executive and that the presiding judge may call upon the district attorney to
furnish the information requested here as to pending criminal cases[,] if for no
22
General Assembly. See Ga. Const. of 1983 Art. III, Sec. I, Par. I (“The
legislative power of the state shall be vested in a General Assembly
which shall consist of a Senate and a House of Representatives.”).
All that remains for district attorneys, then, is executive power.
Second, the nature of the power exercised by district attorneys
is neither legislative because district attorneys do not make the law,
nor is it judicial, because district attorneys have no power to decide
cases. See, e.g., Sons of Confederate Veterans, 315 Ga. at 50 (2) (b)
(“The judicial power is that which declares what law is[] and applies
it to past transactions and existing cases; it expounds and judicially
administers the law; it interprets and enforces the law in a case in
litigation.”) (citation and punctuation omitted)); Harbuck v. State,
280 Ga. 775, 778 (631 SE2d 351) (2006) (“The legislative branch
enacts the law, the judiciary interprets those laws and the executive
other reason than to schedule trials . . . so as to dispose of criminal matters
promptly and efficiently.”). However, it was not until the 1983 Constitution
that the judicial power was vested “exclusively” in the enumerated classes of
courts. Compare Ga. Const. of 1983 Art. I, Sec I, Par. I with Ga. Const. of 1976
Art. VI, Sec. I, Par. I. So, our pre-1983 precedent on this point was applying
different constitutional text.
23
branch enforces those laws until they are amended or held to be
unconstitutional.” (citation omitted)); City of Guyton v. Barrow, 305
Ga. 799 (828 SE2d 366) (2019) (“At the core of the judicial power is
the authority and responsibility to interpret legal text.”) Rather,
district attorneys exercise executive power because their function is
to enforce the law by prosecuting criminal cases. See Ga. Dept. of
Human Svcs. v. Steiner, 303 Ga. 890, 904 (V) (815 SE2d 883) (2018)
(agencies that enforce laws exercise executive power). Thus, we
reject Gonzalez’s argument that the ORA does not apply to her office
simply because our state constitution provides for district attorneys
in Article VI. 15
15 We note that, although Georgia’s appellate courts have not expressly
stated that the ORA applies to public records maintained by district attorneys’
offices, several cases have considered whether a district attorney’s office has
complied with the ORA. See, e.g., Felker v. Lukemire, 267 Ga. 296, 299 (4) (477
SE2d 23) (1996) (“the district attorney fully complied with his obligations
under the [ORA]”); Hall v. Madison, 263 Ga. 73, 74 (428 SE2d 345) (1993) (A
prosecutor was not required to disclose his voir dire notes following an ORA
request, because “[a]ttorney work product falls within an exception to the
Public Records Act. OCGA § 50-18-72 (e) (2).”); Parker v. Lee, 259 Ga. 195, 198
(5) (378 SE2d 677) (1989) (“[W]e conclude that the [sheriff and the district
attorney], to prevail in preventing disclosure [of a criminal investigatory file
under the pending-prosecution exception], had the burden to show that
Parker’s retrial for rape is imminent and of a finite duration. We conclude that
24
(b) Gonzalez is subject to suit under the ORA in her official
capacity as the custodian of public records for her office. Miller sued
Gonzalez in her official capacity as district attorney and as
custodian of records for the ORA. Gonzalez does not argue, in
responding to Miller’s ORA requests, that she was acting as
anything other than the custodian of her office’s public records.16 An
action “to enforce compliance with the provisions of” the ORA may
be brought “against persons or agencies having custody of records
open to the public.” OCGA § 50-18-73 (a) (emphasis supplied.) Thus,
under the plain language of the ORA, Gonzalez may be sued in her
official capacity as custodian of her office’s public records. 17
[they] did not carry the foregoing burden.”); Media Gen. Operations, Inc. v. St.
Lawrence, 337 Ga. App. 428, 433 (787 SE2d 778) (2016) (finding that the
pending-prosecution exemption relieved a district attorney from disclosing
records until the prosecutions were over, but noting that the district attorney
concedes that “the requested records will absolutely be subject to disclosure
when the criminal prosecutions of the three defendants are no longer
pending”); Chua v. Johnson, 336 Ga. App. 298, 302 (1) (a) (748 SE2d 449) (2016)
(finding that the district attorney’s office failed to comply with ORA).
16 For a discussion of the meaning of the word “custodian,” see Milliron
v. Anton, ___ Ga. ___ (2), 2024 Ga. LEXIS 169, *16 (Case No. S24G0198,
decided August 13, 2024).
17 Gonzalez has not specifically appealed the trial court’s ruling that the
“complaint does adequately state a claim against the defendant in her
individual capacity.” Consequently, we express no opinion as to that ruling.
25
4. Immunity. Gonzalez argues that she has absolute
prosecutorial immunity from civil liability for private actions arising
from the performance of her official duties as District Attorney,
including actions taken pursuant to the ORA. Although Gonzalez
correctly asserts that Miller’s claims in this enforcement action
“necessarily relate directly to the District Attorney’s activities in her
official capacity,” prosecutorial immunity does not bar Miller’s
claims against Gonzalez in her official capacity because officialcapacity claims are claims against the agency, and the agency’s
sovereign immunity has been waived by the ORA. As explained
below, a district attorney’s prosecutorial immunity applies only to
individual-capacity claims.18
With respect to Miller’s official-capacity claims against
Gonzalez, those claims are deemed to be claims against the district
attorney’s office, an agency of state government under the ORA, and
not claims against Gonzalez personally. As we explained in Lathrop
18 Gonzalez has not challenged the trial court’s ruling with respect to
Miller’s individual capacity claims. See footnote 17, supra.
26
v. Deal, “a suit against a state officer in his [or her] official capacity
amounts to a suit against the State itself, and the doctrine of
sovereign immunity bars suits against the State to which the State
has not consented.” 301 Ga. 408, 425 (III) (801 SE2d 867) (2017)
(citation omitted). See also Ga. Dept. of Natural Resources v. Center
for a Sustainable Coast, 294 Ga. 593, 599 n.4 (755 SE2d 184) (2014)
(“Sovereign immunity applies to public employees sued in their
official capacities because these are in reality suits against the
state.” (citation and punctuation omitted)). Sovereign immunity,
however, can be waived. 19 And in this case, the ORA waives a state
agency’s sovereign immunity by expressly providing that “any
person, firm, corporation, or other entity” may bring an action in the
superior court “against persons or agencies having custody of
19 The Georgia Constitution provides that sovereign immunity “can only
be waived by an Act of the General Assembly which specifically provides that
sovereign immunity is thereby waived and the extent of such waiver.” Dept. of
Transp. v. Mixon, 312 Ga. 548 (864 SE2d 67) (2021) (citing Ga. Const. of 1983,
Art. I, Sec. II, Par. IX (e)). However, this does not require that a legislative act “use specific ‘magic words’ such as ‘sovereign immunity is hereby waived’ in
order to create a specific statutory waiver of sovereign immunity.” Ga. Dept. of
Corrections v. Couch, 295 Ga. 469 (759 SE2d 804) (2014).
27
records open to the public under this article to enforce compliance
with the provisions of this article.” See OCGA 50-18-73 (a). Thus,
Miller’s claims against Gonzalez in her official capacity are not
barred by sovereign immunity because sovereign immunity has been
waived by the ORA. And Miller’s official-capacity claims are not
barred by prosecutorial immunity because those claims are not
actually claims against Gonzalez.
Prosecutorial immunity may apply, however, to Miller’s
individual-capacity claims. An individual’s immunity from suit is a
defense to an individual-capacity claim. See, e.g., Kentucky v.
Graham, 473 U.S. 159, 167 (105 SCt. 3099, 87 LE2d 114) (1985)
(“The only immunities that can be claimed in an official-capacity
action are forms of sovereign immunity that the entity, qua entity,
may possess[.]”); Roach v. Stouffer, 560 F.3d 860, 870 (8th Cir. 2009)
(“immunity, either absolute or qualified, is a personal defense that
is available only when officials are sued in their individual
capacities”) (citation and punctuation omitted). This is because
“[s]overeign immunity and official immunity are distinct doctrines.”
28
State of Ga. v. International Indemnity Co., 305 Ga. 126, 131 (2) (a)
(823 SE2d 806) (2019). “[I]t is well settled that sovereign immunity
shields from suit the State and its departments and agencies,
including claims against the State’s officers or employees in their
official capacity, while official immunity “offers public officers and
employees limited protection from suit in their personal capacity.”
Id. (citations and punctuation omitted; emphasis supplied).
Similarly, prosecutorial immunity, another kind of official
immunity, shields the person – not the state – from suit.
The Georgia Constitution provides that “[d]istrict attorneys
shall enjoy immunity from private suit for actions arising from the
performance of their duties[,]” Ga. Const. of 1983, Art. VI, Sec. VIII,
Par. I (e). This constitutional immunity is available as a defense
against Miller’s individual-capacity claims to the extent that those
claims pertain to actions arising from the performance of Gonzalez’s
duties as district attorney.20 In this case, however, the trial court did
20 See, e.g., Ga. Const. of 1983, Art. VI, Sec. VIII, Par. I (e)
(“It shall be
the duty of the district attorney to represent the state in all criminal cases in
29
not address whether prosecutorial immunity barred any of Miller’s
individual-capacity claims against Gonzalez, nor has Gonzalez made
any argument on appeal with respect to those claims. Therefore, we
do not address the merits of those individual-capacity claims nor do
we express any opinion as to their viability.
Judgment affirmed. All the Justices concur.
the superior court of such district attorney’s circuit and in all cases appealed
from the superior court and the juvenile courts of that circuit to the Supreme
Court and the Court of Appeals and to perform such other duties as shall be
required by law.”); OCGA § 15-18-6 (setting forth a list of duties imposed on
district attorneys). Neither the constitutional nor statutory duties set forth
above are exhaustive and expressly include other duties “required by law,” Ga.
Const. of 1983, Art. VI, Sec. VIII, Par. I (e), or which “necessarily appertain to [the district attorney’s] office.” OCGA § 15-18-6 (13). Additionally, we do not
address whether the doctrine of qualified immunity applies to any of the acts
Miller alleges Gonzalez committed because Gonzalez has not argued that she
is entitled to a qualified immunity defense. Further, the trial court did not
address whether qualified immunity applied under the facts of this case. The
doctrine of qualified immunity offers limited protection to public officers and
employees sued in their individual capacities. See Cameron v. Lang, 274 Ga.
122, 123 (1) (549 SE2d 341) (2001). The doctrine “protects individual public
agents from personal liability for discretionary actions taken within the scope
of their official authority, and done without willfulness, malice, or corruption.” Id. (citation and punctuation omitted).
30