Payday Lenders Lose Open Records Lawsuit

ATLANTA (CN) — The Georgia Supreme Court ruled that correspondence between a state university professor and a nonprofit associated with the payday lending industry can be made available to the public.

The unanimous decision Monday reversed a 2017 Georgia Court of Appeals ruling that government agencies are prohibited from releasing information to the public that is not required for disclosure under the Georgia Open Records Act.

In 2013, Dr. Jennifer Lewis Priestley, a professor of statistics and data science at Kennesaw State University, accepted a $30,000 grant from the Consumer Credit Research Foundation to investigate the effects of payday loans on the financial health of consumers.

The Consumer Credit Research Foundation has ties to the payday lending industry and often funds studies favorable to payday lending.

Priestley published her findings in 2014.

In 2015, the Campaign for Accountability, a 501(c)3 nonprofit based in Washington, D.C., filed an open records request for information about Priestley’s study.

The nonprofit questioned the objectivity of the study and sought information “to educate the public about the true financial interests behind the purportedly academic studies claiming payday loans do not pose a financial harm to borrowers.”

After Kennesaw State agreed to release the records, the Consumer Credit Research Foundation filed a lawsuit to stop it. It claimed that the information in the correspondence was covered by two of the 50 exemptions in the Open Records Act.

A Fulton County Superior Court judge ruled for Kennesaw State, finding that as a part of Georgia’s public university system, it had the right to disclose the requested records even though academic research exemptions in the statute gave it the authority to withhold it.

The Georgia Court of Appeals reversed, ruling that the Open Records Act “prohibits the disclosure of all information that is not required to be disclosed based on the exemptions listed in (the statute).”

But on Monday Justice David E. Nahmias, writing for the Georgia Supreme Court, wrote that the Court of Appeals fundamentally misunderstood the statute.

“Reading the statutory text as CCRF [the Consumer Credit Research Foundation] suggests would be contrary to the English language,” Nahmias wrote.

“(B)eing ‘exempted’ from a disclosure requirement or ‘not required’ to disclose provides a freedom that is contrary to being ‘prohibited’ to disclose.”

Nahmias expatiated: “A few examples illustrate the ordinary usages of these words. Patriotic women who were exempt from the draft were not prohibited from volunteering for military service. Owners of vehicles that are exempt from emissions testing requirements are not prohibited from testing their vehicles’ emissions. If a teacher tells his students that an extra credit assignment is not required, a student who completes the work would be quite annoyed if the teacher rejected it as prohibited. And a daughter surprising her father with a birthday visit after he had told her that a visit was not required would be rather confused if she found the door barred by her angry father shouting that she should have understood that her visit was prohibited. Read naturally and reasonably, OCGA [Official Code of Georgia Annotated] §§ 50-18-71 (a) and 50-18-72 (a) do not prohibit disclosure of records simply because those records are not required to be disclosed by a specific exemption from the ORA’s [Open Records Act] general disclosure duty.”

Though the ruling was hailed as a victory by government transparency advocates, some warned that it may have a chilling effect in academic circles.

“Justice Nahmias’ opinion is not at all surprising based on a plain meaning of the Open Records Act. I think it’s a correct ruling,” Professor Clark D. Cunningham, W. Lee Burge Chair of Law and Ethics at Georgia State University’s College of Law and director of the National Institute for Teaching Ethics and Professionalism, told Courthouse News.

“But I do think the decision may have a practical impact, particularly on academics in Georgia, because it’s a powerful reminder that everything academics do while employed by public universities is subject to an open records request. I think that the very broad access to the work of university professors employed by the state does have the potential of chilling their engaging in research that could be controversial and their expression of controversial views,” Cunningham said.

Cunningham said the ruling should remind academicians that their work may be more accessible to the public than they think.

“One of the things academics need to be reminded of is that someone doing an open records request doesn’t have to show a reason or justification for asking for it. The work of public employees belongs to the public. They have a right to access it,” Cunningham said.

The Campaign for Accountability’s executive director Daniel E. Stevens praised the ruling, as a “total and decisive victory not just for [the Campaign for Accountability], but for government transparency.”

“The court’s decision should serve as a warning to predatory payday lenders that they can’t pay off academics and expect to keep it quiet,” Stevens said.

“Now that the [state] supreme court has ruled, we expect the university to deliver the records promptly. Finally, the public will learn what (the Consumer Credit Research Foundation) has spent so much time and effort trying to hide.”

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