As explained in this blog post, the South Carolina Freedom of Information Act (“FOIA”) provides a statutory framework through which the public can request public records.  FOIA also contains a number of exemptions, however, that would permit (but not require) a public body to not disclose the requested information.  This “permit but not require” feature is important inasmuch as the South Carolina Supreme Court has found that FOIA does not create a duty of confidentiality or non-disclosure on part of the public body.  Even if an exemption applies, the public body may nevertheless choose to disclose the information.  S.C. Tax Comm’n v. Gaston Copper Recycling Corp., 316 S.C. 163 (1994).

The trade secret exemption:  S.C. Code Ann. § 30-4-40(a)(1) provides that trade secrets are exempt from disclosure under FOIA.  That subsection defines “trade secrets” to include (1) “unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential and work products, in whole or in part collected or produced for sale or resale, and paid subscriber information”; and, (2) for those public bodies who market services or products in competition with others, feasibility, planning, and marketing studies, marine terminal service and nontariff agreements, and evaluations and other materials which contain references to potential customers, competitive information, or evaluation.”

This exemption is discussed in Campbell v. Marion County Hosp. Dist., 354 S.C. 274 (S.C. App., 2003) in the context of a FOIA request for information that included salaries, compensation, benefits, and bonuses offered to physicians recruited by the county hospital.  The hospital argued that such information was exempt as a trade secret because, as a rural county hospital, it needed to keep the information private in order to attract qualified physicians and to compete with wealthier, urban areas.  Although FOIA provides an exemption for “materials which contain references to potential customers, competitive information, or evaluation,” (emphasis added) the Court of Appeals determined that the legislators intended for this exemption to apply only in the context of a public body selling products or services to “potential customers,” not in its efforts to compete for employees.  The opinion does not explain why the “competitive information” component of the exemption would not apply in this context.

The personal privacy exemption:  S.C. Code Ann. § 30-4-40(a)(2) provides that information of a personal nature where its public disclosure would constitute an unreasonable invasion of personal privacy is exempt from disclosure under FOIA.  Because the statute does not provide an exhaustive list of what information should be classified as private, the courts use general privacy principles to balance the conflicting interests of the individual’s privacy on the one hand against the interest of the public’s need to know on the other.  Glassmeyer v. City of Columbia, Op. No. 5347 (S.C. App., 2015).

The court in Glassmeyer defined the right to privacy as the right of an individual to be let alone and to live a life free from unwarranted publicity, but acknowledged that the right of privacy does not prohibit the publication of matter which is of legitimate public or general interest. Glassmeyer (citing Burton v. York Cty. Sheriff’s Dep’t, 358 S.C. 339 (S.C. Ct. App. 2004)).  In that case, the court determined that the disclosure of the home addresses, personal telephone numbers, and personal email addresses for applicants to the position of city manager would not “further the FOIA’s purpose of protecting the public from secret government activity,” and therefore the public disclosure of this information would constitute unreasonable invasion of personal privacy.

 The “otherwise exempt” exemption:  S.C. Code Ann. § 30-4-40(a)(4) provides that matters that are specifically exempt from disclosure by statute or law are also exempt from disclosure under FOIA.  Sometimes these other statutory provisions will specifically state that information is exempt from disclosure under FOIA.  For example, S.C. Code Ann. § 42-3-195 states that statistical evaluations of work hazards performed by the S.C. Workers’ Compensation Commission “are confidential and exempt from disclosure pursuant to the Freedom of Information Act.”  In other cases, the statutory provision provides a general disclosure exemption without referencing the Freedom of Information Act.  For example, S.C. Code Ann. § 24-21-1150(E) provides a blanket exemption for the Interstate Commission such that it may “exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.”  In either case, the “otherwise exempt” exemption of FOIA would apply.

 For more information on FOIA generally, check out this blog post.  If you have questions or need assistance with a request under FOIA, feel free to contact Sam Wellborn.


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