Geer v. Phoebe Putney Health System, Inc

Claude Geer asked Phoebe Putney Health System for years of board meeting minutes under Georgia's Open Records Act. Phoebe Putney refused, saying it was not covered by the Act, so Geer sued in superior court to force release of the records. Phoebe Putney answered and also filed a counterclaim seeking attorney fees under the Open Records Act, arguing Geer's suit lacked substantial justification. Geer tried to strike that counterclaim using Georgia's anti-SLAPP statute, which lets people quickly end lawsuits meant to punish them for speaking out or petitioning the government. The trial court refused to strike the counterclaim, and the Court of Appeals of Georgia agreed. The Supreme Court of Georgia took the case to decide whether the anti-SLAPP law applies to this kind of fee counterclaim. The court agreed with the outcome below, but for a different reason: because a fee claim under the Open Records Act can only be judged by looking at the whole record once the underlying case is finished, it is not yet ready to be evaluated when filed as an early counterclaim, so the anti-SLAPP statute's screening process does not fit it.

A claim for attorney fees under OCGA § 50-18-73(b) cannot be stricken under the anti-SLAPP statute because such a claim must be judged on the whole record made in the underlying Open Records Act proceeding, making it unripe for anti-SLAPP screening whenever it is raised, whether as an early counterclaim or a request filed at the end of the case.

The ruling means Open Records Act defendants across Georgia can raise or reserve attorney-fee claims without fear those claims will be knocked out early under the anti-SLAPP law, while requesters seeking public records retain their normal defenses at the case's end.

Affirmed

1. The court explained that Georgia's anti-SLAPP statute (OCGA § 9-11-11.1) lets a party strike a claim early if it arises from protected free speech or petitioning activity, but only after a two-step test: first showing the claim targets protected activity, then requiring the party bringing that claim to show a probability it will win.
2. Unlike claims such as defamation, which target speech that already happened and can be assessed from the pleadings alone, a fee claim under Georgia's Open Records Act (OCGA § 50-18-73(b)) must be judged on 'the record as a whole' made in the underlying records lawsuit, so its merits cannot be assessed while that lawsuit is still pending.
3. Because Phoebe Putney could not yet show it would probably win its fee claim without a finished record of the records dispute, the claim was not ready to be tested under the anti-SLAPP statute's probability-of-success requirement, regardless of how early it was filed.
4. Relying on its earlier decision in EarthResources v. Morgan County, the court reasoned that fee requests made at the end of litigation under a similar Georgia statute (OCGA § 9-15-14) do not chill a plaintiff's rights, and concluded that a fee claim raised earlier, as a counterclaim, has no greater chilling effect.
5. The court noted Phoebe Putney did not need to file its fee request as an early counterclaim at all, since Georgia law allows fee awards to be sought, or even imposed by the court on its own, at the end of a case, making the counterclaim premature rather than improper.

• Open Records Act
• anti-SLAPP statute
• attorney fees counterclaim
• Phoebe Putney Health System
• public records request