Georgia Supreme Court Confirms Georgia’s Anti-SLAPP Statute Cannot Be Used to Strike a Claim for Attorneys’ Fees in Response to an Open Records Act Suit

On October 6, 2020, the Georgia Supreme Court issued an opinion in Geer v. Phoebe Putney Health System, Inc. Case No. S19G1265, affirming the Court of Appeals’ determination that Georgia’s anti-SLAPP statute, O.C.G.A. § 9-11-11.1, could not be invoked to strike a counterclaim for attorneys’ fees under O.C.G.A. § 50-18-73(b) in response to a suit to enforce an Open Record Act request.

Geer submitted an Open Records Act request seeking the release of board meeting minutes. In response, Phoebe Putney claimed it was not subject to the Open Records Act and denied the request. Geer filed suit seeking to compel the release of the requested records. In response, Phoebe Putney filed a counterclaim for attorneys’ fees under O.C.G.A. § 50-18-73(b), which allows a party to recover attorneys’ fees in a suit to enforce the Open Records Act where a court determines the complaining party acted without substantial justification in instituting litigation. Geer filed a motion to strike the counterclaim claiming it violated Georgia’s anti-SLAPP statute. The trial court denied the motion. The Court of Appeals affirmed the decision. After granting certiorari, the Supreme Court concluded the anti-SLAPP statute did not bar the counterclaim.

The Supreme Court noted in EarthResources, LLC v. Morgan County, 281 Ga. 396, 401 (2006), it had “essentially determined that claims for attorneys fees filed at the end of the litigation have no chilling effect on the exercise of the plaintiff’s constitutional rights to free speech and petition.” For purposes of the anti-SLAPP statute, the Supreme Court concluded there was no distinction between a claim for attorneys’ fees at the end of litigation and a claim raised in a responsive pleading to an Open Records Act suit because O.C.G.A. § 50-18-73(b) requires evaluation of the record as a whole before evaluating the claim. The Court concluded the counterclaim was not necessary but also not wrongful.