O.C.G.A.
O.C.G.A.

O.C.G.A. § 42-8-62.1 (2019)

Limiting public access to first offender status; petitioning; sealing record

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) As used in this Code section, the term: (1) “Criminal history record information” shall have the same meaning as set forth in Code Section 35-3-30. (2) “Prosecuting attorney” shall have the same meaning as set forth in Code Section 35-3-37. (3) “Restrict,” “restricted,” or “restriction” shall have the same meaning as set forth in Code Section 35-3-37. (b)(1) At the time of sentencing, or during the term of a sentence that was imposed before July 1, 2016, the defendant may seek to limit public access to his or her first offender sentencing information, and the court may, in its discretion, order any of the following:

(A) Restrict dissemination of the defendant’s first offender records; (B) The criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index, be sealed and unavailable to the public; and (C) Law enforcement agencies, jails, or detention centers to restrict the defendant’s criminal history record information of arrest, including any fingerprints or photographs taken in conjunction with such arrest. (2) When considering the defendant’s request under this subsection, the court shall weigh the public’s interest in the defendant’s criminal history record information being publicly available and the harm to the defendant’s privacy and issue written findings of fact thereupon. (3) The court shall specify the date that such prohibited dissemination, sealing, and restrictions will take effect. (c) An individual who has been exonerated of guilt and discharged pursuant to this article, including those individuals exonerated of guilt and discharged prior to July 1, 2016, may petition the court that granted such discharge for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice. (d) Within 90 days of the filing of a petition pursuant to subsection (c) of this Code section, the court shall order the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public if the court finds by a preponderance of the evidence that: (1) An exoneration of guilt and discharge has been granted pursuant to this article; and (2) The harm otherwise resulting to the privacy of the individual outweighs the public interest in the criminal history record information being publicly available. (e) Within 60 days of the filing of the court’s order under subsection (d) of this Code section, the clerk of court shall cause every document in

connection with such individual’s case, physical or electronic, in its custody, possession, or control to be sealed. (f) When a court orders sealing of court records under subsection (d) of this Code section, the court may also order that records maintained by law enforcement agencies, jails, and detention centers be restricted and unavailable to the public. Such entities shall comply with such restriction within 30 days of receiving a copy of such order. (g)(1) Information sealed or restricted pursuant to this Code section shall always be available for inspection, copying, and use: (A) As provided in subsection (c) of Code Section 42-8-65; (B) By the Judicial Qualifications Commission; (C) By a prosecuting attorney or public defender who submits a sworn affidavit to the clerk of court that attests that such information is relevant to a criminal proceeding; (D) Pursuant to a court order; and (E) By an individual who is the subject of sealed court files or restricted criminal history record information upon court order. (2) The confidentiality of such information shall be maintained insofar as practical.

History

Code 1981, § 42-8-62.1, enacted by Ga. L. 2016, p. 443, § 6A-1/SB 367; Ga. L. 2018, p. 550, § 2-14/SB 407.

Annotations

Law reviews. For article on the 2016 enactment of this Code section, see 33 Ga. St. U.L. Rev. 139 (2016).

JUDICIAL DECISIONS Request for sealing of records denied. - Trial court did not err in denying the defendant’s petition to seal records pursuant to the statute limiting public access to first offender records as the defendant’s guilty plea to repeated violations of public trust in connection with the defendant’s dental profession authorized the trial court to be inclined toward allowing the record to be available to the public. Austin v. State, 343 Ga. App. 118, 807 S.E.2d 1, 2017 Ga. App. LEXIS 452 (2017), cert. denied, No. S18C0363, 2018 Ga. LEXIS 341 (Ga. May 7, 2018). Trial court properly denied the defendant’s motion for an order of exoneration and to restrict access to the defendant’s criminal record because the sentencing form was not ambiguous as the form merely established that the defendant

was either being adjudged guilty or sentenced as a first offender, not both, and the form indicated, in bold print, that the disposition of the charged offense was guilty; thus, the sentencing form clearly indicated that the defendant was convicted of the charged offense. Coleman v. State, 352 Ga. App. 45, 833 S.E.2d 720, 2019 Ga. App. LEXIS 526 (2019). After the defendant, a Major with the Cobb County Police Department, granted a consent motion to have the defendant’s sentence modified and entered under the First Offender Act, O.C.G.A. § 42-8-60 et seq., the trial court did not err in denying the defendant’s motion to seal the records after finding that the defendant’s privacy did not outweigh the public interest and the state had received two Open Records Act, O.C.G.A. § 50-14-1 et seq., requests

regarding the subject information. Hayes v. State, 355 Ga. App. 213, 843 S.E.2d 875, 2020 Ga. App. LEXIS 290 (2020).

Notes of Decisions
Cited in 11 cases (2 in the last 5 years), 2016–2024 · leading case: Austin v. The State., 807 S.E.2d 1 (Ga. Ct. App. 2017).
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Austin v. The State., 807 S.E.2d 1 (Ga. Ct. App. 2017). · cites it 14× “*118 Gordon Austin appeals the lower court's denial of his petition to seal records pursuant to OCGA § 42-8-62.1, Georgia's statute limiting public access to first offender records in the custody of the clerk of court.”
John Doe v. State, 819 S.E.2d 58 (Ga. Ct. App. 2018). · cites it 3× “2d 1 (2017) (applying OCGA § 42-8-62.1 and noting that different procedures apply under OCGA § 35-3-37 ).”
Collins v. the State, 792 S.E.2d 134 (Ga. Ct. App. 2016). · cites it 2× “Furthermore, we note that recent revisions to the Act by the 2016 General Assembly, effective July 1, 2016, provide for: (1) filing a petition in the sentencing court to seal certain records following exoneration and discharge (see OCGA § 42-8-62.1 (c) (2016)); and (2) filing a…”
Nasir v. Gwinnett Cnty. State Court, 798 S.E.2d 695 (Ga. Ct. App. 2017). · cites it 2× “that OCGA §§ 35-3-34 and 35-3-35 also provide for certain criminal history records to be shielded, including records of individuals discharged under our first offender statute and the prosecution records of cases assigned to accountability courts when it is contemplated that the…”
Thomas Edward Hayes v. State (Ga. Ct. App. 2020). · cites it 18× “The trial court then must limit access to certain information, as provided in OCGA § 42-8-62.1 (d) - (f), but only if it finds by a preponderance of the evidence that the harm to the defendant’s privacy 2 outweighs the public interest in the information.”
Jane Doe v. Timothy Vaughn, in His Off. Capacity as Pulaski Cnty. Dist. Attorney (Ga. Ct. App. 2020). · cites it 4× “In 2019, she filed a civil petition in Pulaski County Superior Court to modify her 2011 sentence to provide for retroactive first offender status pursuant to OCGA § 42-8-66 (a) (1) and to seal her criminal record pursuant to OCGA § 42-8-62.1 (c). Following a hearing, the…”
Anthony Calvin Coleman v. State (Ga. Ct. App. 2019). · cites it 4× “” The trial court held a hearing on Coleman’s motion, at which the State did not oppose his request to terminate probation.”
Bennett v. The State., 816 S.E.2d 323 (Ga. Ct. App. 2018). · cites it 2× “1 (2016) (later-enacted statute describing the records subject to restriction under the First Offender Act upon defendant's petition to limit public access to include, inter alia, the "criminal file, docket books, criminal minutes, final record, all other records of the court,…”
The Retail Prop. Trust v. Tyreese Rashun Brown (Ga. Ct. App. 2023). · cites it 2× “See OCGA § 42-8-62.1. On August 10, 2023, the trial court entered an order denying the motion to unseal, and Retail Property Trust thereafter filed this discretionary application on October 25, 2023.”
Hamidullah Nasir v. Gwinnett Cnty. State Court (Ga. Ct. App. 2017). · cites it 2× “that OCGA §§ 35-3-34 and 35-3-35 also provide for certain criminal history records to be shielded, including records of individuals discharged under our first offender statute and the prosecution records of cases assigned to accountability courts when it is contemplated that the…”
Universal Prot. Serv., LLC D/B/A Allied Universal Prot. Servs. v. Tyreese Rashun Brown (Ga. Ct. App. 2024). · cites it 2× “See OCGA § 42-8-62.1 (g) (1) (D). The trial court denied the motion to unseal, and Allied filed this timely application for discretionary appeal.”
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