Court rejects Northside Hospital argument in open records case

By David Hudson

GPA General Counsel

In a unanimous decision written by Justice Nels Peterson, the Georgia Supreme Court reversed the Georgia Court of Appeals and a Fulton County Superior Court that had previously ruled that Northside Hospital records concerning the acquisition of physician practices were not covered by the Open Records Act. Key points in the court’s ruling were the following:

• The Supreme Court described Northside’s position as so “aggressive” that it would cast serious doubts on the legality of the entire arrangement where the Fulton County Hospital Authority leased its hospital and other assets to Northside in a transaction that occurred in November 1991.

• Northside’s operation of the hospital and other leased facilities constitute services it performs on behalf of a public agency. Therefore “records related to that operation are public records.” The particular records regarding the acquisition of the physician practices are also public records “depending on how closely related the acquisition was to the operation of the leased facilities … .” The Supreme Court held this was a factual question that must be determined in the first instance on remand by the Fulton County Superior Court.

• Under the current language of the Open Records Act, “a private entity acts ‘on behalf of’ a government agency when the agency arranges for the private entity to perform a government function that the agency would otherwise have to perform.”

• The court rejected Northside’s argument that the public agency would have to “direct the private entity and the specific details of its work, or even know about those details, in order for the records … to be public records.” The Supreme Court stated that Northside’s argument about whether the hospital authority was involved in the transaction of purchasing the physician practices “is the wrong question to ask, …”

• The court also rejected Northside’s argument that its relationship with the hospital authority was simply that of a landlord and tenant.

• The Supreme Court questioned whether the hospital authority could even legally absent itself from its health-care responsibilities as Northside argued. “The hospital authority law does not allow the authority to surrender all ‘input, oversight, direction and control’ of its public assets to a private entity.”

• The court found in the governing documents between the authority and Northside that there were multiple affirmations that Northside’s work was to fulfill the missions of the authority. It further found in these documents that Northside remains accountable to the authority — at least “if it wants the relationship to continue.”

• The court found that it is plain that Northside’s work in operating and improving the hospital’s leased facilities is work “on behalf of” the authority. Whether other activities of Northside meet this definition will depend on “how closely related those actions are to the operation of the leased facilities.” Because that issue was not addressed in the trial court, the Supreme Court held that this issue should be first determined at the Superior Court level. To be decided next is “how closely the transactions at issue are tied to operating the leased facilities.”

Justice Melton filed a concurring opinion in which he stated that it could not be “credibly stated” that Northside is completely separated from the authority so that none of the records sought in this case could even possibly be classified as “public records.”

Analysis: This decision is a resounding affirmation of the decision of the Georgia legislature to make the Open Records Act apply to private entities that perform functions for governmental agencies. Had the decision gone the other way, it is conceivable that the Georgia Ports Authority, local government waste authorities, airport authorities and a host of other governmental activities could have been privatized, and the public right to obtain records would have been lost.

It remains to be seen what efforts Northside will take to try and convince the Superior Court that its purchase of the physician practices was unrelated to its operation of the hospital facilities that were transferred to it in 1991. It seems a burden that Northside will be unable to carry.

Watch webinar on public notices to make them more visible than ever

Georgia Press Association and the Public Notice Resource Center have teamed up for a presentation to help newspapers make their public notices stand out.

At a time when state legislatures all across the U.S. are looking at how public notices are best delivered and seen, this set of best practices can help your newspaper’s public notices reach even more readers.

If you weren’t able to see this webinar live on Oct. 5, GPA members may contact Sean Ireland for access to the recorded presentation “What Newspapers Must Do to Keep Public Notices.”

We all know that newspaper publication in print and online provides the independent, verifiable and archivable system of public notices that has served the nation well for decades. GPA research shows that citizens want and expect to read public notices in newspapers, and that publication on government or third-party websites would reduce access to them.

In this webinar, Richard Karpel, PNRC president, offers tips and best practices that newspapers can use to help ensure that newspaper publication of notices continues and that they are even more visible and useful to the people in their communities.

New GPA media kits use survey showing readership reach

A 2016 survey conducted for Georgia Press Association confirmed what most in our industry have long known: Newspapers have a wider reach with Georgia consumers than any other form of media.

That’s not all the readership study proved, of course. The data illustrated that newspapers reach the majority of adults in our state, that Georgians expect and want to read public notices in newspapers, and that consumers use newspapers more than any other source to help them find sales and make buying decisions.

While the conclusions were expected inside the industry, it’s time to make the information known outside it. GPA is taking that step with new media kits touting the readership study data that counter the false narrative about the decline of newspapers.

Scott Buffington, GPA President

“Over the last several months, the GPA staff and board have been developing a reworked, informative media kit for use by our Georgia Newspaper Service team to solicit new business for members,” said GPA President Scott Buffington, co-publisher with Mainstreet Newspapers in Jefferson.

“The results of this survey clearly show the perception that newspapers are a dying industry is dead wrong. It’s vital that both our GNS sales staff and our member newspapers make all our readers and advertisers aware of this information — our competitors certainly won’t use it.”

Request media kits by calling GNS Sales Director David Rigas at 770-454-6776 or emailing drigas@gapress.org.

Making use of this information is a critical step. For too long, newspapers have allowed other media to frame a perception that the industry is failing. There have been difficult times for newspapers, as there have been for all businesses in the last 10 years. As the survey proves however, newspapers remain the leading player when it comes to consumer reach and usage.

“Changing this erroneous thinking about us will be tough and will take time,” Buffington said. “It’s like turning a ship and will take repeated exposure and a variety of means to convince a sometimes skeptical public that newspapers are here to stay.”

The readership study was conducted by American Opinion Research. The survey confirmed that printed newspapers and their websites are the number-one source for local news in Georgia. Two-thirds of all Georgia adults read a printed newspaper or access a newspaper website during an average week — more than 4.7 million people across the state.

The findings are echoed by a survey conducted by National Newspaper Association earlier this year, which found that nationwide, more people prefer newspapers to any other media source for news about their community.