The Supreme Court of Georgia has upheld a Floyd County judge’s ruling denying the request of the makers of a podcast series to copy a court reporter’s audio recordings made during a murder trial.

Undisclosed, the producer of the podcast about a Georgia murder, argued that under the Georgia Supreme Court’s 1992 ruling in Green v. Drinnon, a court reporter’s audio recordings are “court records” under Rule 21 of the Uniform Superior Court Rules and that Rule 21 provides the right to copy court records.

In today’s decision, written by Justice Nels S.D. Peterson, the high court agrees that Rule 21 grants the right to copy “court records.” However, under the common law, court records “include only those materials filed with the court, which the recording in question was not.”

BACKGROUND: In 2001, Joseph “Joey” Watkins was convicted in Rome, GA of murder, stalking and other crimes for his role in shooting and killing Isaac Dawkins on Jan. 11, 2000 near Georgia Highlands College. Watkins was sentenced to life plus five years in prison. In 2003, the Supreme Court of Georgia upheld Watkins’ conviction and sentence.

Undisclosed LLC is a Delaware corporation that produces the podcast, “Undisclosed.” Since its debut in 2015, the company claims it has been listened to more than 120 million times. Season One of Undisclosed focused on the case of Adnan Syed, picking up where the hit podcast, “Serial” that ran on National Public Radio, left off. Season Two of Undisclosed, which debuted in July 2016, focused on Watkins’ case. Undisclosed filed an open records request asking to copy the court’s audio recordings of two pretrial hearings and of Watkins’ 2001 trial. In response, Floyd County Superior Court Judge William Sparks ordered Undisclosed to file a motion requesting access to the recordings, which its lawyers did. Georgia’s Uniform Superior Court Rule 21 states that, “All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth.” On Oct. 28, 2016 the judge granted Undisclosed the right to listen and inspect the tapes but denied its request to copy them. The judge cited the Georgia Supreme Court’s 1992 ruling in Green v. Drinnon which stated that an “official court reporter’s tape of a judge’s remarks in open court is a court record” and that “the tape or its transcript must be made available for public inspection.” But the trial judge wrote that nothing in Green entitled Undisclosed to the court reporters’ back-up recordings and that Rule 21 did not confer the right to copy. Undisclosed appealed to the state Supreme Court, which agreed to review the case to determine whether a motion filed by Undisclosed, which was not a party in Watkins’ criminal case, was the proper procedural way to get access to the recordings. The high court also wanted to hear arguments about whether the right to inspect includes the right to copy.

Regarding the first issue, the State argued in the appeal that a Rule 21 motion was not the proper vehicle for a non-party to access court records, and that Undisclosed should have instead sought a “writ of mandamus” to compel the government to do its duty and allow the copying of the records. Undisclosed argued that its Rule 21 motion was the proper vehicle. “Undisclosed is right,” today’s 32-page opinion says.

Regarding the second issue the high court wished to address, “we conclude that the trial court erred: Rule 21 does include a right to copy court records,” the opinion says. “We nevertheless affirm the trial court’s order because Green’s limited holding does not apply here, and a review of the common law shows that ‘court records’ within the historic right include only those materials filed with the court, which the recording in question was not.”

“By the time Rule 21 was adopted in 1985, the General Assembly had statutorily mandated the contents of the formal record of the court,” the opinion says. In 1965, the General Assembly enacted the Appellate Practice Act, which prescribed the matters and documents that are included in a court record, such as all motions, objections and rulings. In today’s opinion, “we construe Rule 21’s use of the phrase ‘court record’ consistent with the meaning of court record supplied by the Act.” However, “both the common law and the Act reflect the same basic principle: for something to be a court record, it must be filed with the court,” today’s opinion says. Because the court reporter’s audio recordings in this case are not filed with the court, “they are not court records under Rule 21.” This conclusion, the opinion states, “is in accord with other courts that have considered the issue.”

Attorneys for Appellant (Undisclosed): Michael Caplan, Sarah Brewerton-Palmer

Attorneys for Appellee (State): Leigh Patterson, District Attorney, John McClellan, Jr., Asst. D.A.