Recent Supreme Court FOIA Rulings
By Rob Tyson
This summer, the South Carolina Supreme Court has issued three rulings concerning the application of the Freedom of Information Act, S.C. Code Ann. §§ 30-4-10 et seq. (1991 & Supp. 2013) (“FOIA”). See Lambries v. Saluda County Council, Op. No. 27400 (S.C. Sup. Ct. filed June 18, 2014) (Shearouse Adv. Sh. No. 24); Joe Perry & Osteen Publ’g Co., Inc., v. Bullock, Op. No. 27419 (S.C. Sup. Ct. filed July 16, 2014) (Shearouse Adv. Sh. No. 28); and Sloan v. South Carolina Dep’t of Revenue,Op. No. 27437 (S.C. Sup. Ct. filed Aug. 20, 2014 (Shearouse Adv. Sh. No. 33). These orders have ranged from the conduct of a county council meeting to production of autopsy reports, and to the awarding of attorney’s fees and costs for failure to abide by the FOIA statute.
The Supreme Court appears to be struggling with ensuring the application of FOIA meets the purpose of FOIA. The central purpose of FOIA is to demand transparency for the public to understand how its government was being run. S.C. Code Ann. § 30-4-15 (1991). Specifically, the statute states, “that it 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.” Id. The FOIA statute is a relatively short statute; however, it provides the road map for the specific steps one must take to request information form the public body. It further describes the actions one can take if the governmental body fails to abide by the FOIA requirements. In support of increased transparency, the courts have held that FOIA shall be liberally construed since it is a remedial statute. Perry, Op. No. 27419 at 119; Campbell v. Marion Cnty. Hosp. Dist., 354 S.C. 274, 281, 580 S.E.2d 163, 166 (Ct. App. 2003). However, these three decisions have been labeled as a retreat from transparency and have generated a lot of discussion and about potential legislative fixes to the court’s opinions.
Can a governmental body amend its agenda at a regular meeting?
In the Lambries decision, the Supreme Court held that FOIA does not restrict a governmental body from amending its agenda, nor does it require an agenda be developed for a regular meeting. In Lambries, the Saluda County Council published an agenda for a regular meeting per the terms of FOIA. At the meeting, the agenda was amended to add a new business matter. After approving the amendment, the county council took action and approved the new business matter. The plaintiff challenged the county council’s act of amending the agenda as a violation of the notice requirements of FOIA.
Under section 30-4-80(a), all public bodies “must give written public notice of their regular meetings at the beginning of each calendar year.” Further, the statute provides, “this notice must include the dates, times, and places of such meetings.” The last requirement for a regular meeting is that “an agenda, if any, must be posted on a bulleting board at least twenty-four hours prior to such a meeting.” The Supreme Court held that the phrase“if any” clearly indicates an agenda is not required for a regular meeting. Thus, the court concluded that the statute cannot and does not prohibit amending the agenda of a regular meeting.
Does an autopsy report fall under the medical records exemption?
In the Joe Perry decision, the Supreme Court held that “autopsy reports fit neatly within that general understanding of medical records” under section 30-4-20. Since medical records are exempt from production, the Supreme Court held that the coroner did not have to produce the autopsy report pursuant to the local newspaper reporter’s FOIA request.
The FOIA statute does not define “medical records,” which caused the court to ascertain its “normal and customary meaning.” The court ruled that an autopsy not only provides the cause of death, but also “provided a thorough and invasive inquiry by a medical doctor, into the body of the decedent which reveals extensive medical information . . . .” The court then concluded that “an autopsy report falls within the definition of a medical record as that term is commonly understood.” Since medical records are exempt from disclosure under FOIA, the Supreme Court held that the autopsy report did not have to be disclosed.
Is a party entitled to recover attorney’s fees and costs if the government agency fails to comply with the terms of FOIA?
In the Sloan decision, the Supreme Court allowed the recovery of attorney’s fees and costs even after the governmental body produced the documents. The Supreme Court remanded the matter to the trial court to determine the specific amount of attorney’s award of fees and costs to be awarded.
In Sloan, the Plaintiff submitted a FOIA request to the Department of Revenue (“DOR”). The DOR responded that “the request was being researched and reviewed.” The DOR further responded “as soon as the information has been compiled, it will be sent to you.” After receiving this response, the plaintiff sued in circuit court seeking an injunction to produce the documents and the awarding of attorney’s fees. After the commencement of the lawsuit, DOR shortly thereafter produced the requested documents. The court held the DOR’s response was not “a final opinion within the fifteen day determination period” and “the response did not satisfy the requirements of FOIA.” Thus, the court held the plaintiff is the prevailing party and is entitled to its attorney’s fees and costs.