If an Open Records Act request is submitted in Georgia and the records sought no longer exist, has somebody broken the law?

Powell Goldstein associate Katherine V. Hernacki says yes. Hernacki is representing a Middle Georgia animal-rendering company in litigation filed against the Georgia Department of Agriculture. The company, Griffin Industries Inc., sued the state agency for not complying with its Open Records Act request to the company's satisfaction. Griffin has been embroiled in litigation with the state for years over what it perceives to be improper regulation of its rendering plant in Laurens County.

Hernacki deposed an Agriculture Department employee on Oct. 25 about the agency's records-retention policy. The employee, according to the deposition filed with the court, said her agency routinely violated the state law regulating the archiving of documents by either not keeping items that were supposed to be retained according to state procedures, or by destroying them. The employee did not indicate whether she believed the violations were intentional.

"This case goes to the very core of the public's ability to rely on the integrity of the Open Records Act and the notion of open government," Hernacki said.

Powell Goldstein partner L. Lin Wood, Jr. is lead counsel to Griffin Industries on the litigation with the Agriculture Department, and Hernacki has primary responsibility for the case, she said. Balch & Bingham partners Michael J. Bowers and T. Joshua R. Archer filed the initial complaint against the Agriculture Department on March 4, 2005, but no longer are active in the case, Hernacki said.