TITLE 42 PENAL INSTITUTIONS

Section 5. Correctional Institutions of State and Counties, 42-5-1 through 42-5-125.

ARTICLE 2 WARDENS, SUPERINTENDENTS, AND OTHER PERSONNEL

42-5-36. Confidentiality of information supplied by inmates; penalties for breach; classified nature of department investigation reports; confidentiality of certain identifying information; custodians of records.

Officials and employees of the department shall respect the confidential nature of information supplied by inmates who cooperate in remedying abuses and wrongdoing in the penal system. Any official or employee who breaks such a confidence and thereby subjects a cooperating inmate to physical jeopardy or harassment shall be subject to suspension or discharge.
Investigation reports and intelligence data prepared by the Internal Investigations Unit of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner.
1. As used in this subsection, the term:
  1. "Serious offense" shall have the same meaning as set forth in Code Section 42-9-42.
  2. "Serious violent felony" shall have the same meaning as set forth in Code Section 17-10-6.1.
2. All institutional inmate files and central office inmate files of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner; provided, however, that these records shall be subject to subpoena by a court of competent jurisdiction of this state and provided, further, that the commissioner shall prepare a report of the conduct of record of any inmate serving a sentence for a serious violent felony. When the report includes conduct which would constitute a serious offense, reasonably related information connected to such offense shall be included in the report. Such report shall be subject to disclosure under paragraph (2) of subsection (a) of Code Section 42-9-43.
1. As used in this subsection, the term "identifying information" means any records or information that reveals a name, residential or business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.
2. The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.
The commissioner shall designate members of the department to be the official custodians of the records of the department. The custodians may certify copies or compilations, including extracts thereof, of the records of the department. Subject to the provisions of this Code section, in response to a subpoena or upon the request of any appropriate government or judicial official, the department may provide a duly authenticated copy of any record or other document. This authenticated copy may consist of a photocopy or computer printout of the requested document certified by the commissioner or his or her duly authorized representative.

(Ga. L. 1968, p. 1399, § 5; Ga. L. 1983, p. 680, § 1; Ga. L. 1984, p. 22, § 42; Ga. L. 1984, p. 1361, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 1997, p. 851, § 1; Ga. L. 2013, p. 1056, § 1A/HB 122; Ga. L. 2017, p. 585, § 2-4/SB 174.)

The 2013 amendment, effective July 1, 2013, added subsection (d); and redesignated former subsection (d) as present subsection (e).

The 2017 amendment, effective July 1, 2017, substituted the present provisions of subsection (c) for the former provisions, which read: "(c) All institutional inmate files and central office inmate files of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner; provided, however, these records shall be subject to subpoena by a court of competent jurisdiction of this state."

Cross references.

- Privileged communications generally, § 24-5-501 et seq.

Inspection of public records generally, § 50-18-70 et seq.

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).

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).

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 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 (11th Cir. 2015), cert. denied, 135 S. Ct. 1580, 2015 U.S. LEXIS 1849, 191 L. Ed. 2d 661 (U.S. 2015); cert. denied, 135 S. Ct. 1581, 2015 U.S. LEXIS 1857, 191 L. Ed. 2d 661 (U.S. 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 (11th Cir. 2016), cert. denied, 136 S. Ct. 998, 194 L. Ed. 2d 16 (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 (11th Cir. 2014).

Changes made in 2013 were not substantial changes to Georgia's execution protocol and the defendant's method-of-execution 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 (11th Cir. 2017).

Cited in Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001).

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.

Cases Citing Georgia Code 42-5-36 From Courtlistener.com
Total Results: 4
OWENS Et Al. v. HILL
Court: Supreme Court of Georgia | Date Filed: 2014-05-19
Citation: 295 Ga. 302, 758 S.E.2d 794, 42 Media L. Rep. (BNA) 1863, 2014 Fulton County D. Rep. 1343, 2014 WL 2025129, 2014 Ga. LEXIS 400
Snippet: drugs, to be a “confidential state secret.” OCGA § 42-5-36 (d) (2).2 Hill filed suit in the Superior Court
Presnell v. State
Court: Supreme Court of Georgia | Date Filed: 2001-07-16
Citation: 551 S.E.2d 723, 274 Ga. 246, 2001 Fulton County D. Rep. 2230, 2001 Ga. LEXIS 574
Snippet: privileged state secrets in accordance with OCGA § 42-5-36. However, the prosecutor stated that he had subpoenaed
Hardaway Co. v. Rives
Court: Supreme Court of Georgia | Date Filed: 1992-12-01
Citation: 422 S.E.2d 854, 262 Ga. 631, 92 Fulton County D. Rep. 3073, 1992 Ga. LEXIS 984
Snippet: level than national or state security, see OCGA § 42-5-36 (confidentiality of information supplied by inmates
Reed v. Reed
Court: Supreme Court of Georgia | Date Filed: 1961-10-05
Citation: 122 S.E.2d 253, 217 Ga. 303, 1961 Ga. LEXIS 435
Snippet: must be proven. Kehely v. Kehely, 200 Ga. 41, 42 (5) (36 SE2d 155); Williams v. Porter, 202 Ga. 113 (42

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