Freedom of Information Act Update
| Publication year | 2016 |
| Pages | 32 |
| Citation | Vol. 27 No. 4 Pg. 32 |
Elizabeth Crum, J.
The South Carolina Freedom of Information Act[1] (FOIA) provides: "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" and FOIA must "be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings."[2] FOIA is applicable to meetings of public bodies and documents in the possession of public bodies. The public body meetings[3] generally include all committees or subcommittees as long as a quorum is present and one of the FOIA exceptions is not applicable.[4]
Requirements for a FOIA request.
The only requirement for a FOIA request is that it be in writing.[5] The request can be in letter form, e-mail or a handwritten note. The request can be for copies of documents by name, by category or for review of documents. The public body can "establish and collect fees not to exceed the actual cost of searching for or making copies of records."[6] The public body can waive or reduce the fee if in the public interest.[7]
Attorney's fees and 15-day requirement.
The FOIA requires a public body (state or local) to respond to a freedom of information (FOI) request within 15 days, excluding weekends and holidays, of receipt.[8] In Sloan v. South Carolina Department of Revenue,[9] Sloan sought public information from the Department of Revenue (DOR) regarding its data breach. In response to the request, DOR responded, acknowledging the request and stating it "is currently being researched and reviewed" and the information would be sent "[a]s soon as the information has been compiled," but if DOR was unable to find or release the files, it would notify Sloan.[10] Sloan filed suit and DOR provided the material three weeks later. Before the circuit court, Sloan conceded that his request for injunctive relief was moot but that his request for declaratory relief, attorney's fees and costs remained viable. The circuit court dismissed the case.
On appeal, the Supreme Court unanimously concluded DOR violated the 15-day response requirement because the response "seeks to delay DOR's final determination as to the public availability of the requested documents. DOR's response is best characterized as 'we will get to it when we get to it,' which is manifestly at odds with the clarity mandated by S.C. Code Ann. § 30-4-30(c)."[11] A public body has to make the final decision as to what it is going to release within the 15-day window and notify the requestor. DOR did not comply with FOIA because, while it responded to the FOIA request, "its equivocal and evasive response was not a final opinion on the public availability of the requested documents and did not state whether the information requested by Sloan was publicly available for inspection, copying, or production."[12] Sloan contended that he was entitled to attorney's fees and costs as provided in S.C. Code Ann. § 30-4-100(b). The Court remanded the case for award of reasonable attorney's fees. The Court reasoned that Sloan had to resort to the courts to get relief and was the prevailing party entitled to attorney's fees.[13]
Conclusion.
Public bodies must respond to a FOIA request within 15 calendar days and inform the requestor whether the requested information will be made available or not made available and what exemption is relied upon to deny access. The public body may no longer write a letter stating the FOIA request has been received and will be answered at some unidentified time in the future.
Requirements for executive session.
In Donohue v. City of N. Augusta,[14] the plaintiff challenged an ordinance establishing a Tax Increment Financing District (TIF). Appellant alleged the City of North Augusta (City) did not comply with the FOIA provision that requires "the specific purpose of the executive session"[15] be announced in open session. The City had announced that it was going into executive session to discuss a "proposed contractual matter."[16] The FOIA defines "specific purpose" as a "description of the matter to be discussed as identified in items (1) through (5) of subsection (a) of this section."[17] The statute exempts employment matters and certain economic development matters from being named specifically.[18] The Court reiterated its holding in Quality Towing, Inc. v. City of Myrtle Beach[19] that absent an exemption, the specific contractual matter at issue has to be disclosed prior to executive session. The Court explained that FOIA has five specific exemptions and a governmental body has to identify the correct exemption (reason) before going into executive session.[20] While the Court held that the City had violated the FOIA by not correctly identifying the specific contract to be discussed, it found the TIF ordinance to be valid because "none of the challenged executive sessions related to the [TIF Ordinance]."[21]
Conclusion.
Any public body not announcing the specific reason that it is going into executive session is in violation of the FOIA.
What constitutes a public body.
In Disabato v. South Carolina Ass'n of School Adm'rs,[22] appellant submitted a FOIA request to the South Carolina Association of School Administrators (SCASA) claiming it was a public body because it received public funds. The FOIA defines "public body" as "any organization, corporation, or agency supported in whole or in part by public funds or expending public funds, ..."[23] Disabato filed a declaratory judgment action in circuit court seeking a declaration that SCASA is a public body subject to the FOIA and an injunction requiring production of the requested documents. SCASA answered, contending that when applied to a non-profit public body engaged in political advocacy, the FOIA unconstitutionally violates the First Amendment rights of speech and association and filed a motion to dismiss the action. The case involved two competing principals of democracy—transparency in government and freedom of speech. For purposes of the motion to dismiss, the circuit court assumed SCASA is supported by public funds, is a public body subject to the FOIA, and is a corporation engaged in political speech and issue advocacy. The circuit court dismissed the action.
On appeal, by a three to two majority, the Supreme Court reversed the circuit court and held: 1) the issue of whether SCASA is a public body is not before the court; and 2) while the FOIA does impact SCASAs speech and association rights,[24] the FOIA does not violate SCASAs right of free speech and association. Applying the intermediate scrutiny test to the constitutionality of FOIA vis a vis SCASAs first amendment rights, the Court held: "A statute will be upheld under...
To continue reading
Request your trial