GARNER v. CLAYTON COUNTY (2026)

Article I, Section II, Paragraph V of our state constitution (hereinafter “Paragraph V”) provides a waiver of sovereign immunity for certain actions seeking declaratory and injunctive relief against governmental entities, including counties. Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(1). But it imposes a procedural requirement upon plaintiffs bringing actions pursuant to that Paragraph: the action must only name the governmental entity as a defendant; and if it names other defendants, it must be dismissed in its entirety. Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(2).

Ann Nina Garner brought this action under Georgia's Open Records Act, OCGA § 50-18-70 et seq., seeking, among other things, declaratory and injunctive relief against Clayton County. Because she also named individual records custodians as defendants, the trial court dismissed the action in its entirety under Paragraph V, even though Garner asserted that she was not relying on Paragraph V's waiver of sovereign immunity but instead was relying on a waiver of sovereign immunity in the Open Records Act.

We agree with Garner that this was error, so we reverse the order dismissing the action in its entirety. On remand, the trial court may determine which of Garner's claims against the county, if any, are subject to the waiver of sovereign immunity in the Open Records Act.

Garner also appeals from a trial court order rescinding an earlier recusal. She did not preserve this claim of error below and this type of ruling is not subject to plain error review, so we do not reach the order rescinding the recusal.

1. Procedural history

In this action, Garner alleged that she made a series of open records requests to the county for records associated with dogs that had died or been euthanized while in county custody and for job descriptions of certain animal control employees. She argued that the county's responses to those requests failed to comply with the Open Records Act in various respects.

Garner asserted five counts against the county under the Open Records Act. In Count One, she alleged that the county violated OCGA § 50-18-71(b)(1)(A) of the Open Records Act by refusing to process two requests for records that she made via an open records portal on the county's website, instead requiring her to submit her requests by email. She sought a declaration

that when an agency presents an open records portal via the Internet to the public as a place to request all records within the custody of the agency, without stating that there are limitations as to which records may be requested therein, that, per OCGA § 50-18-71(b)(1)(A), the agency may not then refuse to process requests received through the portal for certain categories of records;

and she sought a declaration

that Defendant Clayton County violated the rights of Plaintiff Garner and continues to violate the rights of the people requesting records by refusing to process certain categories of records requests received through their open records portal, pursuant to OCGA § 50-18-73(a).

In Count Two, Garner alleged that the county violated the Open Records Act with regard to two requests that she submitted via email by failing to produce veterinary records on the ground that the records fell within an exemption for “veterinary records ․, the disclosure of which would be an invasion of personal privacy[.]” OCGA § 50-18-72(a)(2). She sought a declaration

that agencies may only withhold veterinary records pursuant to OCGA § 50-18-72(a)(2) where there is a personal privacy interest in said veterinary records, and that such an interest does not exist where a dog or other animal has been taken as property of the agency on behalf of the public thus extinguishing the personal privacy interest of the now-former owner(s);

and she sought a declaration that

Defendant Clayton County violated the rights of Plaintiff Garner and continues to violate the rights of Plaintiff Garner and other people requesting records by refusing to produce any veterinary records even where there is no personal privacy interest that may be asserted in said records.

In Count Three, Garner sought to compel the county to produce veterinary records in response to two requests she submitted via email, to the extent that the county wrongfully withheld such records.

In Count Four, Garner alleged that the county violated its obligations under the Open Records Act by failing to produce a specific job description that she had requested via email. She asserted that the county did not produce the otherwise-responsive description on the ground that it was a draft. She sought a declaration

that an agency may not refuse to withhold [sic] a record merely because it is in draft form or because it has not been approved for publication on the Internet by a supervisor;

and she sought a declaration

that Defendant Clayton County violated the rights of Plaintiff Garner and continues to violate the rights of the people requesting records pursuant to OCGA § 50-18-71(b)(1)(A) by refusing to produce records that are in draft form, pursuant to the Court's authority contained in OCGA § 50-18-73(a).

Finally, in Count Five, Garner sought to compel the production of the job description addressed in Count Four, “either the preexisting version or the draft or both,” in response to the request she submitted via email, to the extent the county wrongfully withheld that record.

In other counts, Garner sought civil penalties against three records custodians in their individual capacities pursuant to OCGA § 50-18-74.

The county moved to dismiss Garner's complaint for lack of subject matter jurisdiction under OCGA § 9-11-12(b)(1). It argued that Garner had not established that the county waived its sovereign immunity. In specific, it argued that because Garner named individual defendants in the action, she could not avail herself of the waiver of sovereign immunity for actions for declaratory and injunctive relief found in Article I, Section II, Paragraph V(b) of the Georgia Constitution, which requires such actions to be brought only against the governmental entity. And it argued that, under our Supreme Court's decision in State v. SASS Group, 315 Ga. 893, 904(2)(d), 885 S.E.2d 761 (2023), Garner's inclusion of the individual defendants required the action to be dismissed in its entirety.

Garner disputed the premise of the county's motion — that her action relied on Paragraph V's waiver of sovereign immunity. She stated in her response brief that she did not rely on that constitutional waiver but instead relied on a waiver of sovereign immunity found within the Open Records Act itself. The county replied that the Open Records Act did not contain an express waiver of sovereign immunity that covered all of Garner's claims against the county. Garner responded that if the trial court found some of her claims did not fall within the Open Records Act's waiver of sovereign immunity, the trial court could dismiss those particular claims, but that “the Court ought not insert a legal authority not relied upon [by] the Plaintiff, resulting in dismissal of the entire complaint[.]”

While the county's motion to dismiss was pending, the trial court recused herself. She later entered an order rescinding that recusal “in the interest of justice and to not further delay resolving the matters pending in this case.”

The trial court then granted the county's motion to dismiss Garner's complaint in its entirety for lack of subject matter jurisdiction. The trial court reasoned that “there is no waiver of sovereign immunity in cases seeking declaratory or injunctive relief where a plaintiff includes defendants other than the governmental entity and ․ such cases must be dismissed in entirety”; that “[t]here is no express waiver of sovereign immunity in the [Open Records Act] which would clearly divorce [Garner's] claims [of] injunctive and declaratory relief from the Paragraph V sovereign immunity waiver in the Georgia Constitution”; that “because there is not an express waiver of sovereign immunity, [the Open Record Act's] private right of action is still subject to the constitutional requirements (e.g.—plaintiff must still only name the county OR name individuals)”; and, alternatively, that the relief sought by Garner “exceeds the scope of the equity jurisdiction given to superior courts by [the Open Records Act]” because Counts One, Two, and Four of Garner's complaint “do not relate only to specific requests for records, but are general in nature.”

2. Order rescinding recusal

We first consider Garner's claim that the trial court erred by rescinding her earlier recusal. Garner concedes that she did not preserve this claim for ordinary appellate review but argues that we should review the ruling for plain error.

A trial court's decision not to recuse, however, is not a ruling subject to plain error review. See generally Robinson v. State, 322 Ga. 279, 290(2)(c), 919 S.E.2d 659 (2025) (setting forth the types of rulings for which plain error review is available). Accordingly, Garner has waived this claim of error. See id. (where appellant failed to preserve a claim for ordinary appellate review and the claim is not subject to plain error review, appellate review of the claim is waived); Jackson v. State, 315 Ga. 543, 553-54(2), 883 S.E.2d 815 (2023) (appellate review of a trial court's decision not to recuse may be waived if not properly preserved below). So we do not reach the order rescinding the recusal.

3. Dismissal order

As detailed above, the trial court held that because Garner named defendants other than the county in her complaint, she did not comply with Paragraph V's exclusivity requirement, Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(2). Consequently, the trial court held that Garner failed to show a waiver of sovereign immunity, that as a result the trial court lacked jurisdiction, and that under Paragraph V and the reasoning of SASS Group, 315 Ga. at 904(2)(d), 885 S.E.2d 761, the trial court was required to dismiss the entire action. Garner argues that this was error because she did not file her action pursuant to Paragraph V but rather sought to rely on the Open Records Act for a waiver of sovereign immunity. We agree.

“As a threshold matter, the trial court's ruling on a motion to dismiss on sovereign immunity grounds is reviewed de novo, while factual findings are sustained if there is any evidence supporting them.” Bd. of Regents of the Univ. System of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 133-34, 830 S.E.2d 503 (2019) (citation and punctuation omitted). This appeal presents purely legal questions, so we review the ruling de novo.

“The constitutional doctrine of sovereign immunity bars suits against the State to which it has not given its consent[.]” Starship Enters. of Atlanta v. Gwinnett County, 319 Ga. 293, 297(2), 903 S.E.2d 55 (2024) (citation and punctuation omitted). The doctrine applies to counties. Id. “Consent to suit can only be given by [Georgia's] Constitution itself or by an act of the General Assembly.” Lathrop v. Deal, 301 Ga. 408, 425(III), 801 S.E.2d 867 (2017).

The Open Records Act is an act of the General Assembly that contains a waiver of sovereign immunity. It provides, “[t]he superior courts of this state shall have jurisdiction in law and equity to entertain actions against persons or agencies having custody of records open to the public under this article to enforce compliance with the provisions of this article.” OCGA § 50-18-73(a). This language constitutes a waiver of sovereign immunity against an agency or a person in his or her official capacity. Gonzalez v. Miller, 320 Ga. 170, 181-82(4), 907 S.E.2d 859 (2024).

Garner has made clear in her briefs before the trial court and this court that she seeks to rely solely on the Open Records Act's waiver of sovereign immunity. She argues that the statutory waiver covers all of her claims against the county, and she states that even if some of her claims are not covered by the statutory waiver, the trial court could simply deny relief as to those particular claims. She has affirmatively disclaimed reliance on the constitutional waiver of sovereign immunity found in Paragraph v.

Nevertheless, the trial court held that Paragraph V's exclusivity requirement governed and mandated dismissal of Garner's entire action for lack of jurisdiction, because Garner sought declaratory and injunctive relief that fell outside the scope of the Open Records Act. This holding is incorrect for several reasons.

First, the exclusivity requirement is not a jurisdictional requirement, it is a procedural requirement, and a “failure to comply with that procedural rule has no effect on the waiver of sovereign immunity granted by Paragraph V(b)(1).” Tussahaw Reserves v. Butts County, 323 Ga. 84, 89-90(2), 922 S.E.2d 363 (2025) (punctuation omitted). Consequently, contrary to the trial court's holding, a failure to comply with the exclusivity requirement “does not deprive the trial court of subject-matter jurisdiction” and “may be cured by dropping parties to the action under OCGA § 9-11-21, thus avoiding dismissal.” Id. at 90(2), 922 S.E.2d 363 (citation and punctuation omitted). Accord Warbler Invs. v. City of Social Circle, 321 Ga. 125, 129-30(3)(a), 913 S.E.2d 674 (2025).¹

Moreover, by its plain language, Paragraph V's exclusivity requirement only governs actions that are “filed pursuant to this Paragraph ․” Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(2) (emphasis supplied). In a case where the appellants cited Paragraph V as authority for their claim that sovereign immunity had been waived, our Supreme Court held that the actions had been filed “pursuant to” Paragraph V because the appellants had “relied, at least partially, on Paragraph V's waiver of sovereign immunity in pursuing their actions[.]” Lovell v. Raffensperger, 318 Ga. 48, 50(2)(a), 897 S.E.2d 440 (2024).

No similar reliance exists here. Unlike the appellants in Lovell, Garner did not cite Paragraph V as the source of a waiver of sovereign immunity; to the contrary, she expressly disclaimed any reliance upon Paragraph V.

And Paragraph V contemplates that there may be other sources of a sovereign-immunity waiver for actions seeking declaratory or injunctive relief. It states that it “shall not limit the power of the General Assembly to further waive [sovereign] immunity․” Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(5).

Garner sought to rely on one of those other sources of waiver, the waiver set forth in the Open Records Act, which, as stated above, covers actions brought under the Act to enforce compliance with its provisions. OCGA § 50-18-73(a); Gonzalez, 320 Ga. at 182(4), 907 S.E.2d 859. And the county concedes in its appellate brief that some of Garner's claims “may be within the scope of this waiver of sovereign immunity because they seek relief based on enforcing compliance with the Open Records Act.”

The trial court, however, did not address whether any of Garner's particular claims sought to enforce compliance with the Open Records Act. Instead, she concluded that some of Garner's claims fell outside the scope of the Act because they sought only general declaratory relief rather than relief tied to a specific written request. The trial court relied on OCGA § 50-18-71(b)(3), which provides that enforcement actions under the Open Records Act are “available only to enforce compliance and punish noncompliance when a written request is made consistent with this subsection and shall not be available when such request is made orally”). Based on that finding, she then concluded that none of Garner's claims were subject to a waiver of sovereign immunity under the Open Records Act.

We hold that the trial court erred by applying the procedural exclusivity requirement of Paragraph V to dismiss Garner's entire action, even though Garner expressly stated that she did not bring her action pursuant to that Paragraph or seek to avail herself of its waiver of sovereign immunity. And the trial court erred by concluding that the Open Records Act did not waive sovereign immunity as to any of Garner's claims, without determining whether or not some of those claims sought to enforce the Act's provisions. So we reverse the trial court's order dismissing Garner's action in its entirety and remand this case for proceedings not inconsistent with this opinion, which may include determining in the first instance whether each of Garner's specific claims for relief against the county seek to enforce the Act's provision and thus fall within the waiver of sovereign immunity set forth in the Open Records Act.

Judgment affirmed in part, reversed in part, and remanded with direction.

FOOTNOTES

1.   We recognize that our Supreme Court issued the decisions in Tussahaw Reserves and Warbler Invs. after the trial court dismissed this action, and so the trial court did not have the benefit of those decisions when she entered her ruling.

McFadden, Presiding Judge.

Hodges and Pipkin, JJ., concur.