An Open Records Act complaint was filed against the Effingham County Hospital Authority on Thursday after a request for public records revealed gaping holes in the process for Open Records Requests on the entity, which is a political subdivision of the local government.
The complaint was filed with the Georgia Attorney General’s Office, which handles the mediation process for open government issues as they pertain to Georgia’s sunshine laws.
Below is the text of the letter sent to the Georgia Attorney General’s Office on May 22, 2025.
I am seeking mediation in resolving an issue with a pending Open Records Request with the Effingham County Hospital Authority. My request has already prompted more questions that will undoubtedly result in additional records requests, so in addition to assistance with this request, I am seeking mediation on the process utilized by the Hospital Authority to provide public records.
The Hospital Authority members are appointed by the Board of Commissioners and the city councils within the county. The county website Hospital Authority tab lists Dr. Fran Witt, the CEO of Effingham Hospital Inc., as a member of the Hospital Authority.
ISSUE
On May 6, 2025, I emailed Mrs. Stephanie Johnson, Clerk for the Effingham County Board of Commissioners, about the point of contact for the Effingham County Hospital Authority, specifically for an ORR. Mrs. Johnson, who is also a member of the Hospital Authority, replied with a name – Dr. Fran Witt – and the contact information.
I reached out to Dr. Witt by email to confirm that she was the right point of contact for an ORR. Dr. Witt replied and said “Yes. Please forward requests to my office and attention. Thank you.”
On May 14, 2025, I emailed my Open Records Request to Witt as instructed. A copy of my request can be found here, but essentially sought Hospital Authority meeting minutes, employment contracts for the CEO, and financial profit & loss documents provided to the Hospital Authority. (My presumption that these financials exist was based on the fact that the Hospital Authority has financial audits completed on an annual basis.)
I did not receive a confirmation that the email had been received, but on May 16, at 4:15 p.m., I received an email from attorney Mills Fleming of Hunter Maclean who said he received my request from the CEO and that ‘they’ needed more time because of the volume of the request. He also said some of the information was available on publicly accessible websites but did not include any additional information about which information was available or where. He told me to direct all future correspondence relating to this matter to him.
I responded shortly thereafter and explained that the Open Records Act requires a response time of three days and if the records cannot be provided, an expected date for production as well as a cost estimate are legally required to be provided. (That response deadline was Monday, May 19, 2025 at 12:30 p.m.) I also shared that I did review several websites, including that of the hospital, before filing my request and the information appeared to be out of date.
I explained that my request was fairly narrow, as I’ve sent it to other hospital authorities in the past and the information has been provided fairly quickly and without a cost. Notably, much of the information, like meeting minutes and CEO contracts are seemingly readily available under the Open Records Act. Monthly profit & loss statements at other hospitals are shared during monthly authority meetings, so I did not presume this would be considered voluminous. Further, none of these documents require redaction. Nevertheless, I offered flexibility in my request to accommodate how the Hospital Authority may maintain records.
On May 16, Mr. Fleming replied to me again and said he does not represent the Hospital Authority, only Effingham Hospital Inc. and stated Witt is not employed by the Authority. He told me he would provide additional information on Monday, May 19, but I did not hear from him.
On May 20, 2025, I sent an email to the county manager, Tim Callanan, and copied County Clerk Stephanie Johnson, Dr. Fran Witt (the named records custodian), and Mr. Mills Fleming, the private legal counsel for Effingham Hospital, Inc. I outlined the above and explained that I did not believe that Mr. Fleming should be my point of contact since he is not the records custodian and he does not represent the Hospital Authority. I also expressed concerns about incurring costs for production based on his billable rate and the fact that I had yet to receive an expected date of production for the records or a cost estimate.
At 10:18 P.M. on May 20, Mr. Fleming replied to me that Effingham Hospital, Inc was in the process of determining if it had records responsive to the request. He said he hoped to have a formal response on Friday or Tuesday.
On May 22, 2025, I replied to all of the parties and once again reiterated that the request was served upon the Effingham County Hospital Authority, not Effingham Hospital, Inc, as a corporation is not subject to the ORA. From a legal standpoint, the Hospital Authority had not been responsive to the initial request.
On the same date, Mr. Fleming replied again that he represents the hospital and not the hospital authority and that Dr. Witt is employed by the hospital, not the hospital authority. He further directed me to the general financial transparency tab on the HOSPITAL WEBSITE regarding the financial component of my request about the HOSPITAL AUTHORITY. The website does not include the documents I requested. He closed by stating that he hoped to have the records for me next week.
LEGAL ISSUES
- The Hospital Authority has not complied with the Open Records Act with regard to a “lawful custodian.”
It is still unclear who the actual records custodian is. Witt first identified herself as the records custodian and, upon receiving my request, became unresponsive. By Mr. Fleming’s own admission, the CEO of the hospital is not an employee of the Hospital Authority. If she is a board member of the hospital authority and is the records custodian in that capacity, she should be responsive to the requests and avoid using the hospital’s private legal counsel to handle the request. If she is not at all affiliated with the hospital authority, she should not be involved in the records request process and neither should the private legal counsel who is paid to represent the hospital.
Further, with Governor Kemp signing Senate Bill 12, passed by the Georgia legislature in 2025, just a few weeks ago, this matter is even more clear. OCGA 50-18-70(2)(A) states “All requests to inspect or copy public records under this article shall be made upon a custodian.” Subsection (B) goes on to state that “a custodian shall comply [with the Open Records Act] including…the requirement to retrieve public records prepared and maintained or received by a private person or private entity in the performance of a service or function for or on behalf of an agency…”
The code section defines “lawful custodian” as the agency that has charge, custody, care and control over a public record or an employee of such agency…” This amendment to the law by the Georgia legislature was done specifically so that requestors would not be filing requests upon private entities and the agency would instead be the liaison between the two.
- The Hospital Authority has not complied with the timeline provisions and cost estimates.
If Witt is not the records custodian, then the Hospital Authority has not responded to the ORR at all. Both the county manager and the county clerk are aware of the request and have also failed to respond regarding the request.
If Witt is the records custodian, as a member of the Hospital Authority or some party acting on behalf of the Authority, she has failed to respond to the ORR as the legal counsel for her duties in her capacity at the hospital do not attach for the purposes of the request. If an attorney is necessary, that should be the legal counsel that represents the Hospital Authority.
Even still, considering Mr. Fleming’s responses as an uninvolved third party, a specific date of production and cost estimate was not provided within three business days of receipt and has still yet to be provided. Additionally, the Open Records Act requires that the documents that do exist be detailed in the initial response. Mr. Fleming’s response on May 22, 2025 states “As permitted by law and assuming there are documents to produce…” (emphasis added). By this point in the process, the records custodian is supposed to know which records exist and is required to provide a list of such.
I would like to receive the records as requested, but I would also like the process for obtaining records to be cured.
Thank you,
- Read the initial request
- County Clerk naming records custodian
- Witt confirming she is records custodian
- 1. Email Thread involving private legal counsel for Effingham Hospital Inc.
- 2. Email Thread involving private legal counsel for Effingham Hospital Inc.
- Third Email Thread involving private legal counsel for Effingham Hospital Inc.
