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2018 Georgia Code 42-9-53 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 42-9-53 Case Law from Google Scholar Amendments to OCGA 42-9-53

TITLE 42 PENAL INSTITUTIONS

Section 9. Pardons and Paroles, 42-9-1 through 42-9-90.

ARTICLE 2 GRANTS OF PARDONS, PAROLES, AND OTHER RELIEF

42-9-53. Preservation of documents; classification of information and documents; divulgence of confidential state secrets; conduct of hearings.

  1. Subject to other laws, the board shall preserve on file all documents on which it has acted in the granting of pardons, paroles, conditional releases, and other relief.
    1. All information, both oral and written, received by the members of the board in the performance of their duties under this chapter and all reports, files, records, and information coming into their possession by reason of the performance of their duties under this chapter shall be classified as confidential state secrets until declassified by the board; provided, however, that the board shall be authorized:
      1. To disclose to an alleged violator of parole or conditional release the evidence introduced against him or her at a final hearing on the matter of revocation of parole or conditional release; and
      2. To disclose information as provided in Code Section 42-9-61.
    2. The department may make supervision records of the department available to officials employed with the Department of Corrections and the Sexual Offender Registration Review Board, provided that the same shall remain confidential and not available to any other person or subject to subpoena unless declassified by the commissioner of community supervision.
  3. No person shall divulge or cause to be divulged in any manner any confidential state secret. Any person violating this Code section or any person who causes or procures a violation of this Code section or conspires to violate this Code section shall, upon conviction, be guilty of a misdemeanor.
  4. All hearings required to be held by this chapter shall be public, and the transcript thereof shall be exempt from subsection (b) of this Code section. All records and documents which were public records at the time they were received by the board shall be exempt from subsection (b) of this Code section. All information, reports, and documents required by law to be made available to the General Assembly, the Governor, or the state auditor shall be exempt from subsection (b) of this Code section.

(Ga. L. 1943, p. 185, § 20; Ga. L. 1953, Nov.-Dec. Sess., p. 210, § 1; Ga. L. 1975, p. 786, § 4; Ga. L. 1982, p. 3, § 42; Ga. L. 2011, p. 620, § 2/SB 214; Ga. L. 2013, p. 1056, § 2/HB 122; Ga. L. 2015, p. 207, § 7/HB 71; Ga. L. 2015, p. 422, § 5-89/HB 310; Ga. L. 2017, p. 585, § 2-15/SB 174.)

The 2013 amendment, effective July 1, 2013, inserted "and the Sexual Offender Registration Review Board" near the end of subsection (b).

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, rewrote subsection (b). The second 2015 amendment, effective July 1, 2015, rewrote subsection (b). See Editor's notes for applicability. See Code Commission notes regarding the effect of these amendments.

The 2017 amendment, effective July 1, 2017, inserted "conditional releases," in subsection (a); in paragraph (b)(1), substituted "reports, files, records, and information" for "records, papers, and documents" near the middle, and substituted a colon for "to" at the end; added the subparagraph (b)(1)(A) designation; in subparagraph (b)(1)(A), added "To" at the beginning and substituted "; and" for a period at the end; added subparagraph (b)(1)(B); inserted ", upon conviction," near the end of the last sentence of subsection (c); and, in subsection (d), substituted "shall be exempt" for "are exempt" in the second and last sentences.

Cross references.

- Management of records of state entities generally, § 50-18-90 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, the amendment of subsection (b) of this Code section by Ga. L. 2015, p. 207, § 7/HB 71, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 422, § 5-89/HB 310, due to irreconcilable conflict.

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017).

JUDICIAL DECISIONS

Constitutionality.

- This section is not unconstitutional under Ga. Const. 1976, Art. IV, Sec. II, Para. I (see now Ga. Const. 1983, Art. IV, Sec. II, Para. I, II and § 42-9-19). The confidentiality provisions of this section apply to all information, documents, memoranda, and records of the board except those required to be made available to the General Assembly under Ga. Const. 1976, Art. IV, Sec. II, Para. I, and except transcripts of any hearing conducted by the board in any matter. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980).

Exemption from confidentiality requirement.

- This section expressly exempts from confidentiality any information which, by virtue of Ga. Const. 1976, Art. IV, Sec. II, Para. I (see now Ga. Const. 1983, Art. IV, Sec. II, Para. I, II and § 42-9-19), is mandated for inclusion in a fully detailed annual report to the General Assembly of the reasons for granting sentence relief to a prisoner. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980).

State Board of Pardons and Paroles' only description of the disputed documents was the Board's characterization of two cover letters as "critical" of the prisoner; because the state had a compelling and justifiable interest in creating and preserving the privilege in O.C.G.A. § 42-9-53(b), the privilege was not waived merely by the Board's reference to, and brief description of, a few privileged documents. Taylor v. Nix, 451 F. Supp. 2d 1351 (N.D. Ga. 2006).

Inmate not allowed to examine file.

- Refusal of a parole board to allow an inmate to examine the inmate's file does not assume the proportions of a deprivation of the inmate's rights under the Constitution or the laws of the United States. Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979).

State prisoner's motion to compel was properly denied under Fed. R. Civ. P. 26(b) because the documents requested from a parole board, although the documents might have been relevant to one or more of the prisoner's claims under 42 U.S.C. § 1983, were still subject to the confidential state secrets privilege under O.C.G.A. § 42-9-53(b). Taylor v. Nix, 240 Fed. Appx. 830 (11th Cir. 2007)(Unpublished).

In camera inspection of parole files of persons other than defendant.

- At least in the absence of a reasonably specific request for relevant and competent information, the trial court may decline to conduct an in camera inspection of parole files of persons other than the defendant. Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991), cert. denied, 502 U.S. 985, 112 S. Ct. 593, 116 L. Ed. 2d 617 (1991).

Cited in Partain v. Maddox, 131 Ga. App. 778, 206 S.E.2d 618 (1974); Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983); Potts v. State, 259 Ga. 96, 376 S.E.2d 851 (1989); Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Availability of information to Governor.

- It was not the intent of this section that the records of the board be kept secret from the Governor; files relating to a parole action should be made available to the Governor at the Governor's request. 1967 Op. Att'y Gen. No. 67-51 (decided under Ga. Const. 1945, Art. V, Sec. I, Para. XI (see now Ga. Const. 1983, Art. IV, Sec. II, Para. II)).

Board of Corrections may make referrals to local, community recreation officials indicating that a released inmate has recreation skills which might be helpful to the community, provided that the board first obtains the inmate's signed authorization. 1972 Op. Att'y Gen. No. 72-148.

Misdemeanor files should be kept confidential and it is inconsistent with privacy to place the files under custody of some person or persons other than the board as the board alone is entrusted with the safekeeping of these files. 1963-65 Op. Att'y Gen. p. 318.

Board must declassify, by a resolution passed at a duly constituted session of the board, all records which the board seeks to have destroyed that are not included in one of the statutory exceptions relating to records of the board. 1971 Op. Att'y Gen. No. 71-196.

RESEARCH REFERENCES

ALR.

- Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Invocation and effect of state secrets privilege, 23 A.L.R.6th 521.

Cases Citing O.C.G.A. § 42-9-53

Total Results: 7  |  Sort by: Relevance  |  Newest First

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Isaacs v. State, 386 S.E.2d 316 (Ga. 1989).

Cited 201 times | Published | Supreme Court of Georgia | Nov 30, 1989 | 259 Ga. 717

...There was no Brady violation in this case. 12. The trial court properly denied the defendant's request for disclosure of the confidential prison and parole file of Billy Isaacs, which the defendant claimed would be useful for impeachment purposes when Billy Isaacs testified. OCGA § 42-9-53; Potts v....
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Pope v. State, 345 S.E.2d 831 (Ga. 1986).

Cited 182 times | Published | Supreme Court of Georgia | Jul 16, 1986 | 256 Ga. 195

...been allowed to present testimony on the nature of an electrocution. The other claim raised here involves the court's refusal to order the disclosure of Pope's parole file, or at least so much of it as might be mitigating. The state relies upon OCGA § 42-9-53, which classifies records in the possession of the State Board of Pardons and Paroles and forbids the disclosure of information contained therein except under certain conditions not applicable here....
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Stripling v. State, 401 S.E.2d 500 (Ga. 1991).

Cited 109 times | Published | Supreme Court of Georgia | Feb 22, 1991 | 261 Ga. 1

...What occurred is a dangerous practice, and one we disapprove. 7. Stripling sought a pre-trial in-camera review of his parole file and the parole files of his father and brother. Records in the possession of the State Boards of Pardons and Paroles are confidential. OCGA § 42-9-53. However, we have recognized that, in limited circumstances, the non-disclosure provisions of OCGA § 42-9-53 must give way to the defendant's right of access to potentially mitigating evidence....
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Walker v. State, 327 S.E.2d 475 (Ga. 1985).

Cited 73 times | Published | Supreme Court of Georgia | Mar 14, 1985 | 254 Ga. 149

...This motion was denied, and in his first four enumerations of error, Walker complains of the court's denial of disclosure and the court's refusal to conduct an in-camera inspection of the file or to have the file sealed and preserved for appellate review. Walker further contends that OCGA § 42-9-53, on which the trial court relied to deny Walker's disclosure motion, is unconstitutional if it allows the suppression of exculpatory or potentially mitigating evidence in a death penalty case....
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Potts v. State, 376 S.E.2d 851 (Ga. 1989).

Cited 57 times | Published | Supreme Court of Georgia | Feb 23, 1989 | 259 Ga. 96

...Potts argues this action was insufficient to satisfy his right of access to mitigating evidence. We disagree. A defendant has access to other, non-confidential information about his behavior in prison, and we do not find it necessary to ignore the confidentiality provisions of OCGA § 42-9-53 in order to satisfy the defendant's right to present mitigating evidence....
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Head v. Stripling, 590 S.E.2d 122 (Ga. 2003).

Cited 32 times | Published | Supreme Court of Georgia | Oct 14, 2003 | 277 Ga. 403, 2003 Fulton County D. Rep. 3657

...ipling's background. Defense counsel also sought to obtain Stripling's parole file because they believed there might be important evidence contained therein. "Records in the possession of the State Board of Pardons and Paroles are confidential. OCGA § 42-9-53." Stripling, supra, 261 Ga....
...353-354(1), 466 S.E.2d 837 (1996). In Stripling v. State, supra at 6(7), 401 S.E.2d 500, this Court addressed Stripling's claim regarding the disclosure of his records in possession of the Board of Pardons and Paroles, and held that "the non-disclosure provisions of OCGA § 42-9-53 must give way to the defendant's right of access to potentially mitigating evidence....
...ency and which is entitled to confidentiality under a state statute. Likewise, Pope is also a Brady case, holding that a criminal defendant in Georgia is entitled to exculpatory evidence held by the Board of Pardons and Paroles, notwithstanding OCGA § 42-9-53....
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Hardaway Co. v. Rives, 422 S.E.2d 854 (Ga. 1992).

Cited 19 times | Published | Supreme Court of Georgia | Dec 1, 1992 | 262 Ga. 631, 92 Fulton County D. Rep. 3073

...term, "confidential state secrets," has been used in statutes that concern subjects at a lower level than national or state security, see OCGA § 42-5-36 (confidentiality of information supplied by inmates to the Department of Corrections); [1] OCGA § 42-9-53 (confidentiality of information received by *634 the State Board of Pardons and Paroles)....
...must be narrowly construed. *635 In the present case, the most narrow construction of the term "secrets of state" in § 24-9-21 is that it is but a general statement of the more specific "confidential state secrets" exemptions found in §§ 42-5-36; 42-9-53; and 16-11-9....
...ed 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. [Emphasis supplied.] [2] Section 42-9-53 provides that (a) .......