35-3-37. Inspection of criminal records; purging, modifying, or
supplementing of records.

(a) Nothing in this article shall be construed so as to
authorize any person, agency, corporation, or other legal entity
to invade the privacy of any citizen as defined by the General
Assembly or the courts other than to the extent provided in this

(b) The center shall make a person's criminal records available
for inspection by such person or his or her attorney upon written
application to the center. Should the person or his or her
attorney contest the accuracy of any portion of the records, it
shall be mandatory upon the center to make available to the
person or such person's attorney a copy of the contested record
upon written application identifying the portion of the record
contested and showing the reason for the contest of accuracy.
Forms, procedures, identification, and other related aspects
pertinent to access to records may be prescribed by the center.

(c) If an individual believes his or her criminal records to be
inaccurate or incomplete, he or she may request the original
agency having custody or control of the detail records to purge,
modify, or supplement them and to notify the center of such
changes. Should the agency decline to act or should the
individual believe the agency's decision to be unsatisfactory,
the individual or his or her attorney may, within 30 days of such
decision, enter an appeal to the superior court of the county of
his or her residence or to the court in the county where the
agency exists, with notice to the agency, to acquire an order by
the court that the subject information be expunged, modified, or
supplemented by the agency of record. The court shall conduct a
de novo hearing and may order such relief as it finds to be
required by law. Such appeals shall be entered in the same manner
as appeals are entered from the probate court, except that the
appellant shall not be required to post bond or pay the costs in
advance. If the aggrieved person desires, the appeal may be heard
by the judge at the first term or in chambers. A notice sent by
registered or certified mail or statutory overnight delivery
shall be sufficient service on the agency having custody or
control of disputed record that such appeal has been entered.
Should the record in question be found to be inaccurate,
incomplete, or misleading as set forth in paragraph (3) of
subsection (d) of this Code section, the court shall order it to
be appropriately expunged, modified, or supplemented by an
explanatory notation. Each agency or individual in the state with
custody, possession, or control of any such record shall promptly
cause each and every copy thereof in his or her custody,
possession, or control to be altered in accordance with the
court's order. Notification of each such deletion, amendment, and
supplementary notation shall be promptly disseminated to any
individuals or agencies, including the center, to which the
records in question have been communicated, as well as to the
individual whose records have been ordered so altered.

(d)(1) An individual who was:

(A) Arrested for an offense under the laws of this state but
subsequent to such arrest is released by the arresting agency
without such offense being referred to the prosecuting attorney
for prosecution; or

(B) After such offense referred to the proper prosecuting
attorney, and the prosecuting attorney dismisses the charges
without seeking an indictment or filing an accusation may
request the original agency in writing to expunge the records of
such arrest, including any fingerprints or photographs of the
individual taken in conjunction with such arrest, from the agency
files. Such request shall be in such form as the center shall
prescribe. Reasonable fees shall be charged by the original agency and
the center for the actual costs of the purging of such records,
provided that such fees shall not exceed $50.00.

(2) Upon receipt of such written request, the agency shall
provide a copy of the request to the proper prosecuting attorney.
Upon receipt of a copy of the request to expunge a criminal
record, the prosecuting attorney shall promptly review the
request to determine if it meets the criteria for expungement> set
forth in paragraph (3) of this subsection. If the request meets
those criteria, the prosecuting attorney shall review the records
of the arrest to determine if any of the material contained
therein must be preserved in order to protect the constitutional
rights of an accused under Brady v. Maryland.

(3) An individual has the right to have his or her record of
such arrest expunged, including any fingerprints or photographs
of the individual taken in conjunction with such arrest, if the
prosecuting attorney determines that the following criteria have
been satisfied:

(A) The charge was dismissed under the conditions set forth in
paragraph (1) of this subsection;

(B) No other criminal charges are pending against the
individual; and

(C) The individual has not been previously convicted of the
same or similar offense under the laws of this state, the United
States, or any other state within the last five years, excluding
any period of incarceration.

(4) The agency shall expunge the record by destroying the
fingerprint cards, photographs, and documents relating
exclusively to such person. Any material which cannot be
physically destroyed or which the prosecuting attorney determines
must be preserved under Brady v. Maryland shall be restricted by
the agency and shall not be subject to disclosure to any person
except by direction of the prosecuting attorney or as ordered by
a court of record of this state.

(5) It shall be the duty of the agency to notify promptly the
center of any records which are expunged pursuant to this
subsection. Upon receipt of notice from an agency that a record
has been expunged, the center shall, within a reasonable time,
restrict access to the criminal history of such person relating
to such charge. Records for which access is restricted pursuant
to this subsection shall be made available only to criminal
justice officials upon written application for official judicial
law enforcement or criminal investigative purposes.

(6) If the agency declines to expunge such arrest record, the
individual may file an action in the superior court where the
agency is located as provided in Code Section 50-13-19. A
decision of the agency shall be upheld only if it is determined
by clear and convincing evidence that the individual did not meet
the criteria set forth in paragraph (3) of this subsection or
subparagraphs (A) through (G) of paragraph (7) of this
subsection. The court in its discretion may award reasonable
court costs including attorney's fees to the individual if he or
she prevails in the appellate process. Any such action shall be
served upon the agency, the center, the prosecuting attorney
having jurisdiction over the offense sought to be expunged, and
the Attorney General who may become parties to the action.

(7) After the filing of an indictment or an accusation, a
record shall not be expunged if the prosecuting attorney shows
that the charges were nolle prossed, dead docketed, or otherwise
dismissed because:

(A) Of a plea agreement resulting in a conviction for an
offense arising out of the same underlying transaction or
occurrence as the conviction;

(B) The government was barred from introducing material
evidence against the individual on legal grounds including but
not limited to the grant of a motion to suppress or motion in

(C) A material witness refused to testify or was unavailable to
testify against the individual unless such witness refused to
testify based on his or her statutory right to do so;

(D) The individual was incarcerated on other criminal charges
and the prosecuting attorney elected not to prosecute for reasons
of judicial economy;

(E) The individual successfully completed a pretrial diversion
program, the terms of which did not specifically provide for
<expungement> of the arrest record;

(F) The conduct which resulted in the arrest of the individual
was part of a pattern of criminal activity which was prosecuted
in another court of this state, the United States, another state,
or foreign nation; or

(G) The individual had diplomatic, consular, or similar
immunity or inviolability from arrest or prosecution.

(8) If the prosecuting attorney having jurisdiction determines
that the records should not be expunged because the criteria set
forth in paragraph (3) or subparagraphs (A) through (G) of
paragraph (7) of this subsection were not met, and the agency or
center fails to follow the prosecuting attorney's recommendation,
the prosecuting attorney having jurisdiction over the offense
sought to be expunged or the Attorney General may appeal a
decision by the agency or center to expunge a criminal history as
provided in Code Section 50-13-19.

(9) An individual who has been indicted or charged by
accusation that was subsequently dismissed, dead docketed, or
nolle prossed may request an <expungement> as provided by
paragraphs (1) through (3) of this subsection; provided, however,
that if the prosecuting attorney objects to the <expungement
request within 60 days after receiving a copy of said request
from the agency, the agency shall decline to expunge and the
individual shall have the right to appeal as provided by
paragraph (6) of this subsection.

(10) Nothing in this subsection shall be construed as requiring
the destruction of incident reports or other records that a crime
was committed or reported to law enforcement. Further, nothing in
this subsection shall be construed to apply to custodial records
maintained by county or municipal jail or detention centers. It
shall be the duty of the agency to take such action as may be
reasonable to prevent disclosure of information to the public
which would identify such person whose records were expunged.

(e) Agencies, including the center, at which criminal offender
records are sought to be inspected may prescribe reasonable hours
and places of inspection and may impose such additional
procedures, fees not to exceed $3.00, or restrictions including
fingerprinting as are reasonably necessary to assure the records'
security, to verify the identities of those who seek to inspect
them, and to maintain an orderly and efficient mechanism for
inspection of records.

(f) The provisions of Chapter 13 of Title 50, the "Georgia
Administrative Procedure Act," shall not apply to proceedings
under this Code section.

(g) If the center has notified a firearms dealer that a person
is prohibited from purchasing or possessing a handgun pursuant to
Part 5 of Article 4 of Chapter 11 of Title 16 and if the
prohibition is the result of such person's being involuntarily
hospitalized within the immediately preceding five years, upon
such person or his or her attorney making an application to
inspect his or her records, the center shall provide the record
of involuntary hospitalization and also inform the person or
attorney of his or her right to a hearing before the judge of the
probate court or superior court relative to such person's
eligibility to possess or transport a handgun.

(Ga.L. 1973, p. 1301, § 6; Ga. L. 1995, p. 139, § 4; Ga. L. 1997,
p. 1345, § 1; Ga. L. 2000, p. 1589, § 3.)