O.C.G.A. § 42-5-36 (2019)

Annotations

Cross references. Privileged communications generally, § 24-5-501 et seq. Inspection of public records generally, § 50-18-70 et seq. Administrative rules and regulations. Administration, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Chapter 125-1. Law reviews. For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 230 (1997). For article, “Death Penalty,” see 66 Mercer L. Rev. 51 (2014). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017). For annual survey on local governments, see 74 Mercer L. Rev. 197 (2022).

JUDICIAL DECISIONS Constitutionality. - Georgia Supreme Court held that it is was not unconstitutional for the State of Georgia to maintain the confidentiality of the names and other identifying information of the persons and entities involved in executions, pursuant to O.C.G.A. § 42-5-36(d), including those who manufacture the drug or drugs to be used. Owens v. Hill,

295 Ga. 302, 758 S.E.2d 794, 2014 Ga. LEXIS 400, cert. denied, 574 U.S. 980, 135 S. Ct. 449, 190 L. Ed. 2d 340, 2014 U.S. LEXIS 7387 (2014). Prisoner’s challenge to Lethal Injection Secrecy Act. - Condemned prisoner’s challenge to the state’s method of execution based on Georgia’s Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36, was

STATE/COUNTY CORRECTIONAL INST.

not timely because the Act was not a change to the injection protocol itself. The Act merely altered how the state responded to requests for information about executions, which was different from how the state carried out the protocol. Gissendaner v. Ga. Dep’t of Corr., 779 F.3d 1275, 2015 U.S. App. LEXIS 3134 (11th Cir.), cert. denied, 575 U.S. 925, 135 S. Ct. 1580, 191 L. Ed. 2d 661, 2015 U.S. LEXIS 1849 (2015), cert. denied, 575 U.S. 925, 135 S. Ct. 1581, 191 L. Ed. 2d 661, 2015 U.S. LEXIS 1857 (2015). Prisoner’s emergency motion to stay the prisoner’s execution was denied because the motion was made at the last moment and without adequate explanation, the prisoner did not show a substantial likelihood of success on the merits, and the equities counseled against imposing the stay since the prisoner did not identify a cognizable liberty interest infringed by the Georgia Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36, the prisoner did not appeal the dismissal of the prisoner’s Eighth Amendment claim, the prisoner failed to state a claim that could be redressed, the prisoner’s conclusory allegation about an alternate drug source was implausible, Georgia’s current protocol had been used at least seven times in the last year without incident, and the prisoner was provided with Georgia’s analysis, drug logs, and testing results. Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288, 2016 U.S. App. LEXIS 1697 (11th Cir.), cert. denied, 577 U.S. 1125, 136 S. Ct. 998, 194 L. Ed. 2d 16, 2016 U.S. LEXIS 975 (2016). Change in law did not affect statute of limitations on method of execution claim. - Neither the Georgia Department of Corrections’ anticipated use of an adulterated pentobarbital nor the lethal injection secrecy act, O.C.G.A. § 42-5-36,

established a significant alteration in Georgia’s method of execution sufficient to restart the statute of limitations on a death row inmate’s 42 U.S.C. § 1983 claim, which had expired. Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 2014 U.S. App. LEXIS 11396 (11th Cir.), cert. denied, 573 U.S. 928, 134 S. Ct. 2838, 189 L. Ed. 2d 803, 2014 U.S. LEXIS 4294 (2014). Changes made in 2013 were not substantial changes to Georgia’s execution protocol and the defendant’s method-ofexecution claim accrued in October 2001 and must have been filed by October 2003 to be timely; the defendant’s federal complaint challenging lethal injection, filed on May 12, 2017, was over ten years too late. Ledford v. Comm’r, Ga. Dep’t of Corr., 856 F.3d 1312, 2017 U.S. App. LEXIS 8554 (11th Cir. 2017). Journalist’s entitlement to information about lethal injections. - When an investigative journalist sought records relating to the purchase, acquisition, transportation, and handling of the drugs that the Georgia Department of Corrections (GDOC) used or planned to use for executions by lethal injection under the Georgia’s Open Records Act (ORA), O.C.G.A. § 50-18-70 et seq., the trial court erred in dismissing the journalist’s ORA claim because, while there might be records in the possession of the GDOC that consisted solely of identifying information protected by the Secrecy Act, O.C.G.A. § 42-5-36, the allegations of the amended complaint did not disclose with certainty that the journalist would not be entitled to relief under the ORA. Further, if protected information was properly redacted, there would be no violation of the Secrecy Act. Blau v. Ga. Dep’t of Corr., 364 Ga. App. 1, 873 S.E.2d 464, 2022 Ga. App. LEXIS 247 (2022).

OPINIONS OF THE ATTORNEY GENERAL Declassification by commissioner. - Pursuant to O.C.G.A. § 42-5-36 investigation reports and intelligence data prepared by the Internal Investigations Unit of the Department of Offender Rehabilitation (Corrections) are classified as confidential state secrets and privileged under

law except as declassified in writing by the commissioner of offender rehabilitation (corrections). 1985 Op. Att’y Gen. No. 85-4. Fingerprinting required. - Misdemeanor offenses arising under O.C.G.A. § 42-5-36(f) are offenses for which those

charged are to be fingerprinted. 2021 Op. Att’y Gen. No. 21-1.