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Supreme Court Further Defines Notice Under FOIA

By Rob Tyson

On April 13, the South Carolina Supreme Court decided Brock v. Town of Mount Pleasant in which it addressed whether, under South Carolina’s Freedom of Information Act (“FOIA”), the town had given proper notice for a “special meeting” it held. Op. No. 27621 (S.C. Sup. Ct. filed April 13, 2016)(Shearouse Adv. Sh. 15).

The Plaintiff alleged Mount Pleasant violated FOIA by “taking unnoticed action following executive sessions at special meetings.” In particular, in 2007, Mount Pleasant Town Council issued an agenda for a special meeting and listed an executive session matter, but did not indicate on the agenda that Town Council potentially would take action following the executive session. The Town Council did take action after executive session and the Plaintiff maintained Town Council violated FOIA by so doing. The Plaintiff did not seek to set aside any of the Town Council’s actions; rather, he sought a declaratory order declaring Town Council violated FOIA.

The Supreme Court ruled the Mount Pleasant Town Council committed a “technical violation of FOIA.” The actions in dispute, the court pointed out, were taken at a special meeting.  Under S.C. Code Ann. § 30-4-80, notice, including the agenda, date, time, and place of the meeting, must be provided for a special meeting.  On the agenda for the special meeting, the item in dispute was listed as an agenda item to be addressed in executive session. However, the agenda did not list this item in the open session agenda which came after the executive session.  The Plaintiff maintained the public wasn’t given proper notice that this specific item might be addressed after the executive session since the agenda didn’t list it.

The Supreme Court held “after the executive session concludes and the public body reconvenes in open session, any action taken or decision made must be properly noticed…”  The Court further stated, “it is sufficient for the agenda to reflect that, upon returning to open session, action may be taken on the items discussed during executive session.”

This opinion clearly spells out the notice requirement for special meetings.  For items to be addressed in executive session of special meetings, the agenda must not only list the executive session item, but also must list this item in open session, post executive session, for potential action.

See the opinion here.