Vol. 10, No. 6, Pg. 18. Recent Changes to the South Carolina Freedom of Information Act.

• Author: By D. Garrison "Gary" Hill

South Carolina Lawyer

1999.

Vol. 10, No. 6, Pg. 18.

Recent Changes to the South Carolina Freedom of Information Act

18Recent Changes to the South Carolina Freedom of Information ActBy D. Garrison "Gary" HillA popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.

-James Madison

[It is] the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.

-Antonin Scalia on the Federal FOI Act

Rarely does a week go by without the press reporting that a local public body held a "secret meeting," improper vote or "illegal closed-door meeting." All bodies-from county councils to fire commissions-which are funded even in part by public funds are governed by the South Carolina Freedom of Information Act (FOIA).

The FOIA sets stringent standards for how and when public meetings can be conducted and for the disclosure of public records. Remedies for violation of the FOIA include injunctive and declaratory relief, as well as recovery of attorney's fees and costs. The FOIA even carries criminal penalties for willful violations.

20South Carolina's FOIA, S.C. Code § 30-4-10 et seq., was substantially amended in 1998 by General Assembly Act No. 423. The Act, signed by the Governor on June 12, 1998, contains what may appear to be minor changes, but which will undoubtedly broaden public access to public records and meetings.

Except for the First Amendment, no area of the law provides a more compelling scene for the struggle between the often conflicting rights of the government, the people, the press and the courts than the FOIA. First enacted in the 1970s, the FOIA has two general themes: "open meetings" and "public records." Both sections were significantly affected by Act 423.

Section 1 of the Act amended § 30-4-30 by adding the following subsection:

(d) The following records of a public body must be made available for public inspection and copying during the hours of operations of the public body without the requestor being required to make a written request to inspect or copy the records when the requestor appears in person: (1) minutes of the meetings of the public body for the preceding six months; (2) all reports identified in § 30-4-50(A)(8) for at least the fourteen-day period before the current day; and (3) documents identifying persons confined in any jail, detention center, or prison for the preceding three months.

Previously, requests for any public record had to be made in writing to the custodian of records for the public body. The public body then had 15 days to mail or personally deliver its determination of the request to the requestor. Section 1 carves out three specific exceptions to this general rule for meeting minutes, incident reports and jail logs.

The primary practical effect of this amendment will likely be that public bodies will designate a person to handle all "walk-in" requests for meeting minutes and keep records of all minutes distributed. While the amendment states only that "minutes" must be made available, unapproved or unofficial "draft" minutes may also constitute "public records" as that term is defined in § 30-4-20(c), and are thus potentially discloseable.

A related issue that may arise is whether the public body should charge a fee for copies of the minutes. While a fee not exceeding actual cost is authorized by §...