Freedom of Information Act

The Freedom of Information Act sets forth the framework for access to public records. S.C. Code Ann. §30-4-10 et seq.

Purpose

  • “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.”
  • “Toward this end, provisions of this chapter 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.”

Definitions

  • “Person” includes any individual, corporation, partnership, firm, organization or association.
  • “Public record” includes all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.
  • “Public record” does not include income tax returns, medical records, hospital medical staff reports, scholastic records, adoption records, library records, and other records which by law are required to be closed to the public.

Right to Access Public Records

A person has a right to inspect, copy, or receive an electronic transmission of any public record of a public body.

Fees

The public body may establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. A fee schedule must be posted online, and a fee shall not exceed the prorated hourly salary of the lowest paid employee who has the necessary skill and training to perform the request. Fees may not be charged for examination and review to determine if the documents are exempt from disclosure. Fees can be charged for copying but must not exceed the prevailing commercial rate. Fees may be charged for converting paper records to electronic format. Documents may be furnished when appropriate without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. A deposit not to exceed five percent of the total reasonably anticipated cost for reproduction of the records may be required prior to the public body searching for or making copies of records. The full amount of the total cost must be paid at the time of the production of the request.

Framework for Production

If record is less than 24 months old at the time of the request, notify the person making the request of its determination and the reasons for it within ten days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request. Further, the record must be furnished or made available for inspection or copying no later than thirty calendar days from the date on which the final determination was provided.

If record is more than 24 months old at the time of the request, notify the person making the request of its determination and the reasons for it within twenty days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request or, if a deposit was required then thirty calendar days from the date on which the deposit was received. The record must be furnished or made available for inspection or copying no later than thirty-five calendar days from the date on which the final determination was provided or, if a deposit was required then thirty-five calendar days from the date on which the deposit was received. Moreover, if written notification of the determination of the public body as to the availability of the requested public record is neither mailed, electronically transmitted, nor personally delivered to the person requesting the document within the time set forth by this section, the request must be considered approved as to nonexempt records or information. The various response, determination, and production deadlines provided by this subsection are subject to extension by written mutual agreement of the public body and the requesting party at issue, and this agreement shall not be unreasonably withheld.

Exemptions

A public body may but is not required to exempt from disclosure the following information:

  • Trade secrets
  • Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy, such as:
    • Gross receipts contained in applications for business licenses
    • Name, address, and telephone number of handicapped or disabled individuals
    • Audio recording of the final statements of a dying victim in a call to 911 (subject to redaction or waiver by next of kin)
  • Records, video or audio recordings, or other information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
    • Would interfere with a prospective law enforcement proceeding;
    • Would deprive a person of a right to a fair trial or an impartial adjudication;
    • Would constitute an unreasonable invasion of personal privacy;
    • Would disclose the identity of a confidential source;
    • Would disclose current techniques and procedures for law enforcement investigations or prosecutions;
    • Would endanger the life or physical safety of any individual;
    • Would disclose any contents of intercepted communications not otherwise disclosed during a trial;
  • Matters specifically exempted from disclosure by statute or law:
    • Data recorded by a body-worn camera is not a public record subject to disclosure under the Freedom of Information Act (SC Code Ann. §23-1-240(G)(1))
    • Documentary or other material prepared by or for the Insurance Reserve Fund in providing any insurance coverage authorized by this section or any other provision of law which is contained in any claim file is subject to disclosure to the extent required by the Freedom of Information Act only after the claim is settled or finally concluded by a court of competent jurisdiction (SC Code Ann. §1-11-140(G))
  • Correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.
  • The identity, or information tending to reveal the identity, of any individual who in good faith makes a complaint or otherwise discloses information, which alleges a violation or potential violation of law or regulation, to a state regulatory agency.
  • Documents of and documents incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property (subject to exceptions)
  • Photographs, videos, and other visual images, and audio recordings of and related to the performance of an autopsy (subject to exceptions including for parents, surviving spouse, children, personal representative and next of kin).
  • Other exceptions not relevant to today’s presentation

If any public record contains material which is not exempt under subsection (a) of this section, the public body shall separate the exempt and nonexempt material and make the nonexempt material available in accordance with the requirements of this chapter.

Certain Matters Declared Public Information

The following categories of information are specifically made public information:

  • Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases
  • Statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the public body
  • Reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed (subject to redaction and may not be used for commercial solicitation)
  • Data from a video or audio recording made by a law enforcement vehicle-mounted recording device or dashboard camera that involves an officer involved incident resulting in death, injury, property damage, or the use of deadly force (subject to judicial determination)
  • Other information not relevant to today’s presentation

Injunctive Relief

A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce FOIA. One must apply within one year of the date of the alleged violation. The Chief administrative judge of the circuit court must schedule an initial hearing within ten days of the service on all parties. If the hearing court is unable to make a final ruling at the initial hearing, the court shall establish a scheduling order to conclude actions brought pursuant to this chapter within six months of initial filing. The court may extend this time period upon a showing of good cause. The court may order equitable relief as it considers appropriate, and a violation of this chapter must be considered to be an irreparable injury for which no adequate remedy at law exists. If a person or entity seeking relief under this section prevails, he may be awarded reasonable attorney’s fees and other costs of litigation specific to the request. If the person or entity prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion of those attorney’s fees.

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