Obtaining Records Under the South Carolina Freedom of Information Act
The South Carolina Freedom of Information Act (“FOIA”), at S.C. Code Ann. § 30-4-10, et seq., provides a means by which members of the public can “peer behind the curtain” to better understand the activities of public bodies. One of the key features of FOIA is the provision enabling the public to obtain or inspect the records of public bodies. This provision supports the General Assembly’s finding, codified within FOIA, regarding the importance of transparency in South Carolina government: “[I]t is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy.” The purpose of FOIA is unequivocal: that citizens be fully informed as to the activities of public officials, including the decisions made and the formulation of public policy, and to be able to be so informed at minimum cost and delay. See S.C. Code Ann. § 30-4-15.
What is a public record? Among other provisions of the statute, including open meetings and notice requirements, FOIA provides that members of the public may obtain public records. Specially, the law provides that members of the public may “inspect, copy, or receive an electronic transmission” of any non-exempt public record (exemptions to FOIA are discussed below). “Public record” is defined expansively in the statute, including most anything “prepared, owned, used, in the possession of, or retained by a public body.” Likewise, “public body” is defined expansively and includes a state department, board, commission, agency, county, city, town, school district, special purpose district, “or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds.” The S.C. Supreme Court recently put color on the “public body” analysis in DomainsNewMedia.com, LLC v. Hilton Head Island-Bluffton Chamber Commerce, 814 S.E.2d 513 (S.C., 2018).
Exemptions to FOIA. Under the exemptions provision of FOIA, a public body may invoke an exemption and choose not to disclose information, but it may nevertheless disclose the exempt information if it chooses. Some of the most frequently occurring exemptions are discussed in this blog post. FOIA contains a litany of exemptions to disclosure that are too numerous and detailed to discuss here, but they include the following:
- Trade secrets;
- Personal information for which disclosure would constitute an “unreasonable invasion of personal privacy”;
- Certain law enforcement records and information;
- Documents related to proposed contractual arrangements and proposed sales or purchases of property;
- Information for which disclosure would violate the attorney-client privilege;
- Records in the possession of members of the General Assembly;
- Records in the possession of a person or entity employed by a public body to attract business to invest in South Carolina;
- Materials gathered by a public body during a search to fill an employment position, except those related to the final three candidates for a position;
- Certain information produced or collected by faculty or staff of state institutions of higher education;
- The identity, or information tending to reveal the identity, of any person who discloses information that alleges a violation of law or regulation to a state regulatory agency;
- Structural bridge plans or designs; and
- Photographs, videos, images, and audio recordings related to the performance of an autopsy.
Timeline governing the response. Under FOIA, public bodies must provide an initial response to the requestor within ten business days of the receipt of the FOIA request if the records requested are no more than twenty-four months old. If the records are older than twenty-four months, the public body has twenty business days to provide an initial response.
If the records request is granted, and the records are twenty-four months old or less, the responsive records must be provided or made available no later than thirty calendar days from the date on which the initial response was provided. If the records are more than twenty-four months old, the public body has no more than thirty-five days from the date on which the initial response was provided to provide the records.
If a deposit is required by the public body, as discussed in more detail below, the record must be furnished or made available no later than thirty calendar days from the date on which the deposit is received, or thirty-five calendar days for records that are more than twenty-four months old. In other words, payment of the deposit starts the clock for determining when the records are due to be provided, rather than provision of the initial response. The full amount of the total cost must then be paid at the time of the production of the responsive records.
|Records that are 24 months old or less||Records that are more than 24 months old|
|Public body provides an initial response containing its determination as to the public availability of the requested records||10 business days||20 business days|
|Public body provides records||30 days from date of initial response (or receipt of deposit)||35 days from date of initial response (or receipt of deposit)|
Fees for a records request. Although the intent of FOIA is to provide ready access of public records to the public, the law does provide that the public body may collect fees for searching for, retrieving, and redacting public records, and public bodies may charge a deposit not to exceed twenty-five percent of the total reasonably anticipated cost for reproduction of the records. The fee schedule for records production must be posted online, and the fees must not exceed the hourly salary of the lowest paid employee who has the necessary skill and training to perform the request. Further, “[t]he records must be furnished at the lowest possible cost to the person requesting the records.” Finally, FOIA prohibits the assessment of fees for the examination and review of records to determine whether they are subject to disclosure. Frequently, public bodies will provide responses to FOIA requests free of charge if the incurred fees would be below a certain threshold, though some have become notorious for charging exorbitant amounts (see, for example, this article describing Horry County’s estimate of $75,500 to fulfill a FOIA request that other local governments fulfilled for free or for less than $50).
Enforcement of FOIA and attorney’s fees. Should a member of the public be unable to obtain non-exempt records through a FOIA request—or should he disagree with the exempt classification by a public body—pursuant to S.C. Code Ann. § 30-4-100, he may apply to the circuit court for a declaratory judgment and/or injunctive relief to enforce the provisions of FOIA. The action must be filed no later than one year after the date of the alleged violation. If the member of the public seeking relief prevails, he may be awarded reasonable attorney’s fees and other costs to offset the costs of litigation.
For more information on the exemptions to disclosure under FOIA, check out this blog post. If you have questions or need assistance with a request under FOIA, feel free to contact Sam Wellborn.