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South Carolina

Open Government Guide

Author

Jay Bender
BAKER, RAVENEL & BENDER, L.L.P.
3710 Landmark Dr., Suite 400
Post Office Box 8057
Columbia, SC 29202
(803) 799-9091

Updated by
Taylor M. Smith IV
Harrison, Radeker & Smith, P.A.
P.O. Box 50143
Columbia, SC 29250
(803) 779-2211
www.harrisonfirm.com

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Foreword

The South Carolina Constitution does not provide any specific guidance regarding a citizen’s right to request for information from the state and local governments nor does it provide a citizen’s right of access to the meetings of government. However, the state Constitution does exhibit a preference for transparency in governmental activities as exhibited in Article 3, Section 23: “The doors of each house [of the state’s bicameral legislature] shall be open.”

South Carolina first adopted a freedom of information act to provide access to the meetings and records of governmental institutions in 1974. The first significant Supreme Court test for the act revealed substantial weaknesses in the law resulting in a major revision in 1978. Between 1978 and 1987 the South Carolina Press Association saw the need for further revisions in the legislation, particularly in the provision which allowed governmental bodies to create their own exemptions from the open records requirements and the provision which allowed votes in closed sessions of the meetings of governmental bodies. At the time the press group was seeking an overhaul of the law the president of the University of South Carolina became embroiled in a very public controversy regarding the expenditure of University funds apparently without oversight or documentation. As a consequence of the groundswell of public pressure, the legislature adopted major revisions proposed by the association. Additional revisions were enacted in 2017 following increased scrutiny of law enforcement shootings which addressed exemptions for police records and provided a streamlined request and litigation process for the release of police dash cam footage that shows officer’s use of deadly force. The law is followed reasonably well by state agencies and bodies, but the political culture of local government bodies, particularly school boards and city and county councils, seems to stimulate noncompliance. The South Carolina Supreme Court has been decidedly in favor of open records and meetings since its earliest decisions.

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Open Records

I. Statute

A. Who can request records?

1. Status of requester

"Any person has a right to inspect or copy any public record." S.C. Code Ann. § 30-4-30(a). "Person" is defined to include individuals and entities. S.C. Code Ann. § 30-4-20(b).

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2. Purpose of request

A person requesting records relating to the registration and licensing of motor vehicles must state the reason for the request. S.C. Code Ann. § 56-3-510. No other request for access to public records requires an express statement of purpose, but prohibitions on the use of certain information contained in public records may imply that a public body may ask the requester to state the intended use of the records. The South Carolina Family Privacy Protection Act of 2002, S.C. Code Ann. §§ 30-2-10 et seq. prohibits the use of state-collected personal information for commercial solicitation thereby implying that the purpose of the request may be ascertained by the government.

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3. Use of records

The name, address and telephone number of persons who are handicapped or disabled are not to be disclosed "when the information is requested for person-to-person commercial solicitation of handicapped persons solely by virtue of their handicap." S.C. Code Ann. § 30-4-40(a)(2). Information revealed in a police incident report or an employee salary schedule as well as the home addresses and home telephone numbers of public employees may not be used for commercial solicitation. S.C. Code Ann. § 30-4-50(B). Personal information in the possession of a government agency may not be used for commercial solicitation. S.C. Code Ann. § 30-2-50.

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4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

Executive branch records are available for inspection and copying subject to exemptions applicable to all public records.

Records of executives are available if the records come within the definition of public records contained in S.C. Code Ann. § 30-4-20(c). In 2015, the state passed a law funding law enforcement agencies’ use of body-worn cameras. The law specifically provides that data recorded by those cameras “is not a public record subject to disclosure under the Freedom of Information Act.”  S.C. Code Ann. § 23-1-240. In 2017, the S.C. Supreme Court ruled that autopsy reports, as held by county coroners or agent medical examiners, were medical records and thus, exempt from disclosure under state law. Perry v. Bullock, 409 S.C. 137, 761 S.E.2d 251 (S.C., 2014)

Availability is determined by the definition of public record and the exemptions to mandatory disclosure, and not by specific function.

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1. Executive branch

"Memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs" are exempt from disclosure, but the exemption is not to be construed to limit public access to "source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information . . . and not specifically exempted by any other provisions." S.C. Code Ann. § 30-4-40(a)(1). Other than this "working papers" exception, other records of the General Assembly are subject to the same provisions as other public records.

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2. Legislative bodies

"Memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs" are exempt from disclosure, but the exemption is not to be construed to limit public access to "source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information . . . and not specifically exempted by any other provisions." S.C. Code Ann. § 30-4-40(a)(1). Other than this "working papers" exception, other records of the General Assembly are subject to the same provisions as other public records.

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3. Courts

The Chief Justice of the Supreme Court of South Carolina is the administrative head of the state's court system. The administrative arm of the court, including the South Carolina Bar, is subject to the act. Access to court proceedings and records has been sought and secured under state and federal constitutional provisions rather than the act. See, e.g., Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006); In Ex parte The Island Packet, 417 S.E.2d 575 (S.C. 1992).

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4. Nongovernmental bodies

A body supported in whole or in part by public funds or one that expends public funds is subject to the act. S.C. Code Ann. § 30-4-20(a); Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991). A business does not become subject to the act by the receipt of public funds if the public funds are given in exchange for identifiable goods or services. Id.

A nongovernmental group would not become subject to the act merely because its members include governmental officials unless the group received public funds as an appropriation and not in exchange for goods or services incident to an arms-length transaction. Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991).

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5. Multi-state or regional bodies

A multistate or regional body would become subject to the act if it were supported in whole or in part by public funds or expended public funds that were received other than in exchange for identifiable goods or services. Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991).

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6. Advisory boards and commissions, quasi-governmental entities

All departments of the state or political subdivision of the state including boards and commissions and quasi-governmental bodies are subject to the act. S.C. Code Ann. §30-4-20(a) (1991). The Supreme Court of South Carolina applied this section to hold that a committee appointed by a city manager to review proposals for a city contract was a "public body" and subject to the FOIA. Quality Towing Inc. v. City of Myrtle Beach, 547 S.E.2d 862 (S.C. 2001).

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7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

Records "prepared, owned, used, in the possession of or retained by a public body" are subject to the act with the exception of income tax returns, medical records, hospital medical staff reports, scholastic records, adoption records, library circulation records which reveal the identity of a person using library material and applications for bank charters. S.C. Code Ann. §30-4-20(c). Under the federal Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-2725, the nonconsensual disclosure of certain personally identifying information contained in motor vehicle records is prohibited. South Carolina's Attorney General challenged the legislation on Tenth Amendment grounds, but the Act was upheld by the United States Supreme Court, reversing both the District Court and the Fourth Circuit. Condon v. Reno, 528 U.S. 141 (2000). Other statutes may contain specific exemptions from disclosure, e.g., autopsy photographs are exempt from disclosure to the public under the provisions of S.C. Code Ann. §§17-5-535 and 30-4-40(18).

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2. What physical form of records are covered

Records as defined in the act are subject to the act "regardless of physical form or characteristics." S.C. Code Ann. § 30-4-20(c). Local governments are attempting to make a distinction between "records" and "data" in an effort to limit public access to tax map and other property information maintained as a part of a "geographic information system" or GIS. The Supreme Court of South Carolina has authorized public bodies to obtain copyrights and restrict commercial use of “specially-created data” indicating that data are public records subject to the Act. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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3. Are certain records available for inspection but not copying?

Any person has a right to inspect or copy any public record not exempt from disclosure under the act. S.C. Code Ann. § 30-4-30(a).

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4. Telephone call logs

As long as the call log is held by a public body it would be considered a public record, for purposes of SC FOIA, and is not exempted generally speaking. There are exemptions for law enforcement that theoretically could apply which list seven different reasons, as provided in S.C. Code Ann. § 30-4-40(3), that a call log call could be withheld or redacted. However, those exemptions may only be used if the mere disclosure (not publishing) of the record would necessarily harm the law enforcement agency in one of the seven ways listed therein. A 2017 amendment to SC FOIA added a specific exemption for “any audio recording of the final statements of a dying victim in a call to 911 emergency services.” S.C. Code Ann. § 30-4-40(2) That section further provides that “[a]ny audio of the victim's statements must be redacted prior to the release of the recording unless the privacy interest is waived by the victim's next of kin.”

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5. Electronic records (e.g., databases, metadata)

recordings, or other documentary materials regardless of physical form or characteristics," which has been construed to include records in electronic media. S.C. Code Ann. § 30-4-20(c). Someone has the “right to inspect, copy, or receive an electronic transmission of any public record of a public body,” except as provided by a lawful exemption from disclosure. S.C. Code Ann. § 30-4-30(A)(1). A public body though “is not required to create an electronic version of a public record when one does not exist to fulfill a records request.” S.C. Code Ann. § 30-4-30(A)(2). The Supreme Court of South Carolina has held that a public body may obtain a copyright on “specially-created digital data” to prevent commercial use by recipients, but limited the reach of that ruling to restrict subsequent commercial use by noting that the public must be given access to the data subject to the copyright. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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a. Can the requester choose a format for receiving records?

Records must be furnished in a form that is both convenient and practical for use by the requester if it is equally convenient for the public body to provide the records in the requested form. S.C. Code Ann. § 30-4-30(b).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes, but the agency may charge for the service of searching for the records, and this could include the cost of writing a program for the customized search. Custodians of public records are under no obligation to perform custom searches or to create records. See S.C. Code Ann. §  30-4-30(b).

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c. Does the existence of information in electronic format affect its openness?

No.

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d. Online dissemination

Many public bodies are posting records on line for public access without a request or a charge. Anderson County initiated a program to post all of its financial transactions for public inspection.

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

The definition of public record includes documentation regardless of physical form or characteristics; therefore, software could be a public record.  S.C. Code Ann. §30-4-20(c); Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

Data meeting the definition of public record will be considered public records under the Act, but a copyright may be claimed to restrict commercial use. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Fees may be collected but may not exceed the actual cost of the search, retrieval, the making copies of records, and the redaction of them. The fees may not exceed the actual cost of the searching, copying or redaction records. Fees must be uniform for duplication of the same record – the fees may not exceed the prevailing commercial rate for the producing of copies - and the records must be furnished at the lowest possible cost to the requester. Fees cannot be charged for examination and review to determine if the records are subject to disclosure. Records may be furnished at no cost or at a reduced cost where the agency determines that a reduction or waiver of the cost is in the public interest. S.C. Code Ann. § 30-4-30(B).

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2. Particular fee specifications or provisions

The fees for search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request. Copy charges cannot be applied to records that are transmitted in an electronic format. However, if records are not in electronic format and the public body agrees to produce them in electronic format, the public body may charge for the staff time required to transfer the documents to electronic format. S.C. Code Ann. § 30-4-30(B).

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3. Provisions for fee waivers

A public body may waive or reduce a fee for searching for and making copies of documents if furnishing the information can be considered as primarily benefiting the general public. S.C. Code Ann. § 30-4-30(B).

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4. Requirements or prohibitions regarding advance payment

A public body may require a  deposit not to exceed twenty-five percent  of the total reasonably anticipated cost for reproduction before the public body starts searching or duplicating the records. S.C. Code Ann. § 30-4-30(B).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Agencies have on occasion sought to inhibit requests by requiring excessive advance deposits, but most of the situations have been resolved when the requester demands an itemized statement of the proposed charges. In many instances requesters (including news reporters who should know better) submit broad requests for copies without first examining the material to see if any of the documents are worth copying. It is recommended that requesters seek to review public records and then copy only those desired. This technique is cheaper and has the added benefit of allowing the requester to look at the documents before they have been copied. It is not unknown for some significant material to escape copying when the requester relies on the agency to interpret the request and make copies without the original documents having been reviewed by the requester.

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6. Fees for electronic records

E. Who enforces the Act?

South Carolina in practice relies on private, civil enforcement in suits seeking declaratory judgments and injunctive relief. S.C. Code Ann. § 30-4-100. Prior to revisions to SC FOIA in 2017, criminal prosecution were provided for in the Act, with only one prosecution under the Act taking place and resulting in a not guilty verdicts for the commissioners of a fire district in 2011. S.C. Code Ann. § 30-4-110.

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1. Attorney General's role

The South Carolina Attorney General's office has consistently issued opinions in favor of open government and has participated with the South Carolina Press Association in the publication of a guide for public official compliance with the law.

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2. Availability of an ombudsman

None.

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3. Commission or agency enforcement

None.

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F. Are there sanctions for noncompliance?

A willful violation is no longer considered a misdemeanor and subject to escalating fines and possible imprisonment for repeat offenses; however, if a court finds that a public body has arbitrarily and capriciously violated the provisions of this chapter by refusal or delay in disclosing or providing copies of a public record, the requester may be awarded actual or compensatory damages, or injunctive relief, and the public body may be fined Five Hundred Dollars. S.C. Code Ann. § 30-4-110

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G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

After the latest revisions, public bodies must now “develop a fee schedule to be posted online” with regards to the fees association with the search, retrieval, and redaction of records pursuant to a records request. S.C. Code Ann. § 30-4-30.

Certain types of public information must be made available for public inspection and copying during the operating hours of the public body without the requestor being required to make a written request: (1) minutes of the meetings of the public body for the preceding six months; (2) law enforcement reports for at least the fourteen-day period before the current day; (3) documents identifying persons confined in a jail, detention center, or prison for the preceding three months; (4) all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period. If a public body uploads these four types of records in “a form that is both convenient and practical for use on a publicly available Internet website” it will be deemed to have complied with the Act, provided that the public body also still produce records pursuant to a written request for information as well. S.C. Code Ann. § 30-4-30.

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3. Records retention requirements

The chief administrative officer of a public body is legal custodian of its records and is responsible for the organization and preservation of those records pursuant to the South Carolina Records Retention Act generally and S.C. Code Ann. § 30-1-20 specifically. The chief administrative officer must deliver to his successor, or if there is none, to the South Carolina Department of Archives and History, all public records in his custody. S.C. Code Ann. § 30-1-40. There is not statutory or regulatory “sunset” on the life of a public record.

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4. Provisions for broad, vague, or burdensome requests

A. Exemptions in the open records statute

Exemptions are found in two places in the Act. Some records that would otherwise be included within the definition of a "public record" have been excluded from the statutory definition so as to put them beyond the reach of the statute. The records range from library patron information to security plans. S.C. Code Ann. § 30-4-20(c).

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1. Character of exemptions

Exemptions under the Act are specific. S.C. Code Ann. § 30-4-40.

Exemptions are discretionary with the public body, and the public body may release a document that is subject to an exemption. The Act provides, "A public body may but is not required to exempt from disclosure the following information . . . ." S.C. Code Ann. § 30-4-40(a). This language was added after the Supreme Court decision in S.C. Tax Comm'n v. Gaston Copper Recycling Corp., 447 S.E.2d 843 (S.C. 1994); 22 Media L. Rep. 2211, and is consistent with the decision.

Exemptions are patterned roughly after the federal act.

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2. Discussion of each exemption

a. Trade secrets defined as unpatented, secret, commercially valuable plans, appliances or processes including plans of public bodies who market services or products. S.C. Code Ann. § 30-4-40(a)(1). The South Carolina Court of Appeals rejected an effort by a public body to apply a broader definition of trade secret than the statute allowed to shelter records relating to financial transactions. Campbell v. Marion County. Hosp. Dist., 580 S.E.2d 163 (S.C. App. 2003)

b. Information of a personal nature where the public disclosure of the information would constitute an unreasonable invasion of personal privacy. Specifically exempts financial information in business license tax applications and information relating to handicap or disability where the information would be used for person-to-person commercial solicitation. S.C. Code Ann. § 30-4-40(a)(2). The South Carolina Supreme Court and the Court of Appeals have ruled that this exemption does not relate to the performance of a public duty, and records relating to public activity must be disclosed. Society of Professional Journalists v. Sexton, 324 S.E.2d 313 (S.C.1984); Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. App. 2004)

c. Records compiled for law enforcement purposes where the disclosure 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; or would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial. S.C. Code Ann. § 30-4-40(3); Newberry Pub. Co. v. Newberry County Comm'n. on Alcohol and Drug Abuse, 417 S.E.2d 870 (S.C. 1992); 20 Media L. Rep. 1420.  The Supreme Court of South Carolina has held that the law enforcement agency must prove specific harm to the agency to invoke this exemption.  Evening Post Pub. Co. v. City of N. Charleston, 611 S.E.2d 496 (S.C. 2005).

d. Documents of and documents incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property. These documents become subject to mandatory disclosure once a contract is entered into or the property is sold or purchased. A contract for the sale or purchase of real estate shall remains exempt from disclosure until the deed is executed or 12 months have passed from the date of sale or purchase. S.C. Code Ann. § 30-4-40(5).

e. The amount of compensation paid by public bodies except for those persons receiving compensation of fifty thousand dollars or more annually, all part-time employees, persons paid honoraria and agency or department heads whose exact compensation shall be public. The compensation of all others is subject to disclosure within specified ranges. S.C. Code Ann. § 30-4-40(6).

f. Correspondence or work product of legal counsel for a public body or other material subject to the attorney-client privilege. S.C. Code Ann. § 30-4-40(7).

g. Memoranda, correspondence and working papers of members of the legislature and their staff members. S.C. Code Ann. § 30-4-40(8).

h. Memoranda, correspondence, documents, and working papers relative to efforts of a public body to attract business or industry to invest within the state. S.C. Code Ann. § 30-4-49(9), but the exemption expires if an offer is accepted or a project announced.

i. Standards used or to be used by the S.C. Department of Revenue for the selection of returns for examination, or data used or to be used for determining such standards if the commission determines that the disclosure would impair enforcement of the tax laws. S.C. Code Ann. § 30-4-40(10).

j. Information relative to the identity of a donor of a gift to a public body if the donor requests anonymity. If the maker of the gift or any member of his immediate family has any business transaction with the recipient of the gift within three years prior to or following the gift, the identity of the donor is not exempt from disclosure. S.C. Code Ann. § 30-4-40(11).

k. Records relating to plans for investing state pension funds. S.C. Code Ann. § 30-4-40(12).

l. Material gathered in a search to fill an employment position except that the material gathered relative to "not fewer than the final three applicants under consideration" is to be made public. S.C. Code Ann. § 30-4-40(13).  The Supreme Court of South Carolina rejected a school district’s claim that it was required to release the collected information only as to its two “finalists.”  New York Times Co. v. Spartanburg County School Dist. No. 7, 649 S.E.2d 28 (S.C. 2007).

m. Records and data relating to commercially valuable research produced or collected by faculty or staff of state institutions of higher learning where the information has not been publicly released, published, copyrighted or patented. S.C. Code Ann. § 30-4-40(14).

n. The identity or information tending to reveal the identity of a complainant or informant to a state regulatory agency. S.C. Code Ann. § 30-4-40(15).

o. Records relating to investment strategy for endowments of state institutions of higher learning. S.C. Code Ann. § 30-4-40(16).

p. Structural plans for bridges. S.C. Code Ann. § 30-4-40(17) (Terrorist inspired).

q. Autopsy photographs or videos. S.C. Code Ann. § 30-4-40(18) (Dale Earnhardt inspired).

r. In response to terrorism-related concerns, a new section exempted from public disclosure information concerning safeguards and off-site consequence analyses for facilities containing materials or operations that posed threats to persons or the environment. S.C. Code Ann. § 30-4-45.

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B. Other statutory exclusions

  1. Income tax return information. The amount of income or other information revealed in a return or report is not to be disclosed. S.C. Code Ann. § 12-7-1680.
  2. Agent Orange medical information. The identity of a veteran providing medical information to the S.C. Agent Orange Advisory Committee regarding exposure to chemical agents is confidential. S.C. Code Ann. § 44-40-50(B).
  3. Business information provided to State Crop Pest Commission. S.C. Code Ann. § 46-9-30.
  4. Child abuse and neglect reports. Reports made and information collected by the Department of Social Services and the Central Registry of Child Abuse and Neglect are confidential. S.C. Code Ann. § 20-7-690(A).
  5. Cooperative association reports. Annual reports by cooperative associations to the Commissioner of Agriculture are confidential. S.C. Code Ann. § 33-45-190.
  6. Crime victim's compensation fund records. The records of the S.C. Crime Victim's Compensation Fund are exempt from the Freedom of Information Act. S.C. Code Ann. § 16-3-1240.
  7. Controlled substance research subject. The names and other identifying characteristics of persons who are the subjects of research on the effects of controlled substances may be withheld. S.C. Code Ann. § 44-53-290(g).
  8. Forest products production reports. Reports by forest products producers for assessment purposes are not to become part of the public record. S.C. Code Ann. § 48-30-70.
  9. Patient-identifying information obtained by health agency. The state Department of Health and Environmental Control has the authority to obtain access to medical records and information in the possession of hospitals, physicians and registries, but the patient-identifying information contained in such records is not subject to disclosure. S.C. Code Ann. § 44-1-110 and 44-20-340.
  10. Records of state mental health patients. Records of patients receiving treatment in state mental health facilities are confidential. S.C. Code Ann. § 44-22-100.
  11. Records of infants and toddlers with disabilities. Records obtained by the Interagency Coordinating Council under the Infants and Toddlers with Disabilities Act are confidential. S.C. Code Ann. § 44-7-2590.
  12. Vulnerable adult abuse records. Agencies investigating complaints of abuse or neglect of vulnerable adults are not to publicly disclose information contained in investigative files. S.C. Code Ann. § 43-35-60.
  13. Sexually transmitted diseases. Records and information held by the state health agency relating to known or suspected sexually transmitted diseases are confidential. S.C. Code Ann. § 44-29-135.
  14. Birth and death certificates. Birth certificates are available only to the person, a parent, guardian or legal representative. S.C. Code Ann. § 44-63-80. For the first fifty years following a death, a death certificate may be released only to the deceased's immediate family, legal representative or other persons demonstrating a need to establish a personal or property right. S.C. Code Ann. § 44-63-84.
  15. Criminal pretrial intervention records. Information regarding the identity of an applicant for participation in a criminal pretrial intervention program may not be released "as public knowledge." S.C. Code Ann. §  17-22-130.
  16. Termination of parental rights. All papers and records relating to the judicial termination of parental rights are confidential and the court records of such a proceeding are to be sealed. S.C. Code Ann. § 20-7-1580.
  17. Police-worn body camera data. The 2015 law specifically provides that data recorded by those cameras “is not a public record subject to disclosure under the Freedom of Information Act.” S.C. Code Ann. § 23-1-240
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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

South Carolina has statutory evidentiary privileges for priest-penitent (S.C. Code § 19-11-90), mental health care providers (S.C. Code § 19-11-95) and news media (S.C. Code § 19-11-100), but there are no common law privileges or exclusions applicable to public records.

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

As a consequence of the death of stock car racer Dale Earnhardt, legislation was adopted to preclude access to autopsy photographs and similar materials. S.C. Code Ann. §§ 17-5-535 and 30-4-40(a)(18).  The Sumter County Coroner denied a request by The Item newspaper for access to an autopsy report on grounds that it was a medical record and restricted by HIPAA, neither position seems to be supported by anything other than the imagination of the Coroner. The Coroner’s denial resulted in litigation which was appealed to the South Carolina Supreme Court who held that autopsy reports are medical records and thus exempted from the definition of a public record under SC FOIA. Perry v. Bullock, 409 S.C. 137, 761 S.E.2d 251 (S.C. 2014). (If a record does not fit the otherwise broadly worded definition of “public record” under SC FOIA, it will not be subject to disclosure pursuant to a lawful request.)

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Disclosure is required unless a law enforcement agency can show that disclosure would interfere with a prospective law enforcement action. S.C. Code Ann. §30-4-40(a)(3); Evening Post Publishing Co. v. City of N. Charleston, 611 S.E.2d 496 (S.C. 2005). Assuming another exemption within SC FOIA did not apply such as disclosure resulting in unreasonable invasion of a person’s personal privacy, disclosure would be required.

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C. Bank records

Bank records relating to applications for charters are closed. S.C. Code Ann. § 30-4-40(c). Bank records containing financial information of a public body, such as checks or vouchers, are specifically declared public information. S.C. Code Ann. § 30-4-50(A)(6).

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D. Budgets

A budget, whether a proposed budget or an adopted budget, is a public record subject to disclosure.  S.C. Code Ann. §30-4-20(3).

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E. Business records, financial data, trade secrets

Business records and financial data submitted to the government in most instances will be closed. S.C. Code Ann. §§ 30-4-40(a)(2) and 30-2-50 (precludes use of personal information for commercial solicitation). Property tax returns are open and even though trade secrets are exempt from mandatory disclosure under section 30-4-40(a)(1) if the information is related to the assessment of an ad valorem tax, the information will be available for public inspection and copying. S.C. Tax Comm'n. v. Gaston Copper Recycling Corp., 447 S.E.2d 843, 22 Media L. Rep. 2211 (S.C. 1994).

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F. Contracts, proposals and bids

Documents incidental to proposed contractual arrangements and proposed sales or purchases of property are closed until the transaction has been completed. S.C. Code Ann. § 30-4-40(a)(5). Under the state's procurement code procurement information is made public with the exception of competitive information of the type not normally released to the general public. S.C. Code Ann. § 11-35-410. Bids are to be opened publicly.

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G. Collective bargaining records

There is no specific reference to collective bargaining records in the act due to the very low incidence of public employee collective bargaining in the state. These records would likely be considered public under the broad definition of public records found in the act. S.C. Code Ann. § 30-4-20(c).

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H. Economic development records

Economic development records may be sheltered from disclosure until an offer is accepted and a public announcement made.  S.C. Code Ann. §§30-4-40(a)(9) and 30-4-55.

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I. Election Records

These are open and no exemption to disclosure seems applicable.
Official registration records are public records subject to inspection of any citizen at all times. S.C. Code Ann. § 7-5-410.
County Boards of Canvassers to make statements of votes and transmit results to State Board of Canvassers. S.C. Code Ann. § 7-17-20. Neither the law nor custom indicate that voting results are not public.

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J. Emergency Medical Services records

To the extent such records would be construed medical records they would be exempted from the definition of a public record and thus not responsive to a valid SC FOIA request.  S.C. Code Ann. § 30-4-20(c). Audio of the final statements of a dying victim in a call to 911 emergency services may be exempted and withheld from disclosure unless the privacy interest is waived by the deceased's next of kin. S.C. Code Ann. § 30-4-40(a)(2).

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K. Gun permits

A list of persons with permits to carry concealed weapons may only be released to law enforcement or in response to a subpoena or court order. S.C. Code Ann. § 23-31-215(I).

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L. Homeland security and anti-terrorism measures

Information concerning safeguards and off-site consequence analyses the release of which "could increase the risk of acts of terrorism" may be withheld subject to regulations that provide for access to state, federal and local authorities and disclosure to persons living or working within a "vulnerable zone." S.C. Code Ann. § 30-4-45.

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M. Hospital reports

Information received by the state health agency's licensing division is public, but information identifying individual patients is confidential. S.C. Code Ann. § 44-7-315. Information regarding the operation of a public hospital, including its finances and governance, is subject to the Act. Medical peer review committee records are not included within the definition of records subject to the act. S.C. Code Ann. § 30-4-20(c).

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N. Personnel records

There is no specific exemption from disclosure for public employee personnel records, but most public bodies seek to assert an exemption under the "unreasonable invasion of personal privacy" rubric. A public body's claim that an internal investigative report of a police department was per se exempt from disclosure because it contained personal information was rejected by the Supreme Court of South Carolina. Columbia v. A.C.L.U. of South Carolina, 475 S.E.2d 747 (S.C. 1996). The South Carolina Court of Appeals held in Burton v. York County Sheriff, 594 S.E. 2d 888 (S.C. App. 2004) that disciplinary records of a sheriff's deputies were not exempt from disclosure under a claim that the release of the records would constitute an unreasonable invasion of personal privacy.

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1. Salary

The Act addresses compensation and not salary alone.  Full disclosure of compensation is required for some categories of employees and disclosure within specified ranges is required for others.  S.C. Code Ann. § 30-4-40(a)(6).

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2. Disciplinary records

Disciplinary records are available for inspection and copying. Columbia v.  A.C.L.U. of S.C., 475 S.E.2d 747 (S.C. 1996); Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. App. 2004)

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3. Applications

Information collected in a search to fill a position may be withheld, but information gathered with respect to “not fewer than the final three applicants under consideration” must be made available in response to a written request. S.C. Code Ann. § 30-4-40(a)(13); New York Times Co. v. Spartanburg County School Dist. No. 7, 649 S.E.2d 28 (S.C. 2007).

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4. Personally identifying information

Personally identifying information in state records may not be used for commercial solicitation. S.C. Code Ann. § 30-2-50.

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5. Expense reports

Documents reflecting the expenditure of public money are specifically declared public information. S.C. Code Ann. § 30-4-50(A)(6).

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

Police records are public records with access being qualified by specific exemptions applicable when the disclosure of the record would harm the law enforcement agency. S.C. Code Ann. § 30-4-40(a)(3).

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1. Accident reports

Accident reports are available in response to separate written requests for each report sought, and information may not be used for commercial solicitation.  S.C. Code Ann. § 56-5-1275.

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2. Police blotter

“[R]eports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed” are subject to public inspection and copying subject to the power of a law enforcement agency to redact information the release of which would harm the agency in specified ways.  S.C. Code Ann. §§ 30-4-40(a)(3) and 30-4-50(A)(8); Evening Post Publishing Co. v. City of N. Charleston, 611 S.E.2d496 (S.C. 2005).  “[D]ocuments identifying persons confined in any jail, detention center, or prison for the preceding three months” are available for inspection and copying without the necessity of a written request when the person making the request appears in person at the jail.  S.C. Code Ann. § 30-4-30(d)(3).

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3. 911 tapes

Public unless the release would harm the agency.  S.C. Code Ann. § 30-4-40(a)(3); Evening Post Publishing Co. v. City of N. Charleston, 611 S.E.2d 496 (S.C. 2005). Audio of the final statements of a dying victim in a call to 911 emergency services may be exempted and withheld from disclosure unless the privacy interest is waived by the deceased's next of kin. S.C. Code Ann. § 30-4-40(a)(2).

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4. Investigatory records

Some records may be exempted from disclosure including records compiled for law enforcement purposes where the disclosure 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; or would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial. S.C. Code Ann. § 30-4-40(a)(3).

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5. Arrest records

Arrest warrants once executed are to be returned to the issuing court where they become judicial records subject to constitutionally protected access rights.  S.C. Code Ann. § 17-13-140.

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 has been made public information by the 2017 changes to SC FOIA. A law enforcement or public safety agency who has received a request for this data may apply to the circuit court for an order to prevent the disclosure. The agency is required to provide notice of the court hearing to the requester. An in-camera hearing must be requested within fifteen days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request for disclosure and the court may order the recording data not be disclosed upon a showing by clear and convincing evidence that the recording is exempt from disclosure as specified in the police exemptions and that the reason for the exemption outweighs the public interest in disclosure. A court may also order the recording data be edited to redact specific portions of the data and then released, upon a showing by clear and convincing evidence that portions of the recording are not exempt from disclosure as specified in the police exemptions, Section 30-4-40(a)(3). A court order that withholds the release of recording data under this section must specify a definite time period for the withholding of the release of the recording data and must include the court’s findings and a copy of the order shall be made available to the person requesting the release of the recording data.

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6. Compilations of criminal histories

Available in response to a written request for a fee set by law.  S.C. Code Ann. § 23-3-114; S.C. Regs. § R32-23.

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7. Victims

Records or other information compiled for law enforcement purposes are public but may be withheld from disclosure if production of the information would “endanger the life or physical safety of any individual.” S.C. Code Ann. § 30-4-40(a)(3)(f).

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8. Confessions

Public subject to exemption if the disclosure would harm the law enforcement agency.  S.C. Code Ann. § 30-4-40(a)(3).

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9. Confidential informants

May be withheld if the disclosure would interfere with a law enforcement agency under one of the law enforcement exemptions provided in SC FOIA.  S.C. Code Ann. § 30-4-40(a)(3). One of those exemptions deals directly with confidential informants which allows an exemption for disclosure of information that “would disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation, by an agency conducting a lawful security intelligence investigation, or information furnished by a confidential source.”  S.C. Code Ann. § 30-4-40(a)(3)(D).

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10. Police techniques

11. Mugshots

Public records subject to law enforcement exemptions.

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12. Sex offender records

Open for public inspection following a written request to the Sheriff of a county on a state-mandated form.  S.C. Code Ann. § 23-3-490.

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13. Emergency medical services records

Identities of patients and emergency medical technicians in emergency medical records must be confidential pursuant to the Health Insurance Portability and Accountability Act (HIPAA); however, SC FOIA provides that the remedy for protected information is redaction not the withholding of an entire record.  S.C. Code Ann. § 30-4-40(b).

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

A prisoner's in-prison disciplinary record is subject to the Act. S.C. Code Ann. § 24-21-640. Probation and parole decisions are made by a public body subject to the Act.

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Q. Professional licensing records

If held by a public body, these record would be subject to disclosure; however, professional disciplinary files may be withheld from disclosure in certain instances. See S.C. Lawyers Weekly v. Wilson (S.C. App., 2018).

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R. Public utility records

Records of accounts with utilities that are public bodies, e.g., a municipal water service, are public records.  S.C. Code Ann. § 30-4-50(A)(6).

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S. Real estate appraisals, negotiations

1. Appraisals

If the appraisal is incident to the purchase or sale of property by a public body the record may be withheld until a contract is entered into.  S.C. Code Ann. § 30-4-40(a)(5).

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2. Negotiations

If the negotiations are engaged in by correspondence, the documents would not be required to be made public until a contract is entered into.  S.C. Code Ann. § 30-4-440(a)(5).

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3. Transactions

Contracts, vouchers and other records would be public.  S.C. Code Ann. § 30-4-50(A)(6).

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4. Deeds, liens, foreclosures, title history

Deeds, liens, mortgages and similar instruments conveying an estate or creating an interest must be filed to be valid.  Since notice is the object of the filing, these records are public.  S.C. Code Ann. § 30-7-10.

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5. Zoning records

Records of local planning commissions and zoning boards are specifically public record.  S.C. Code Ann. §§ 6-29-360(B) and 6-29-790.  These entities are public bodies and their activities and records would be subject to the Act.  S.C. Code Ann. § 30-4-20(a).

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T. School and university records

1. Athletic records

Federal law preempts state law with respect to student education records, but athletic records relating to participation in sports activities is considered “directory information” which may be disclosed. 20 U.S.C.A. § 1232g(a)(5)(A).

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2. Trustee records

School boards are public bodies and records of activities of trustee would be public records.  S.C. Code Ann. §§ 30-4-20(a) and 30-4-20(c).

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3. Student records

Student educational records are subject to the confidentiality provisions of federal law.  20 U.S.C.A. §1 232g.

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

Neither the South Carolina National Guard nor the South Carolina Guard are exempted for requests for information pursuant to the South Carolina Freedom of Information Act.

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V. Tax records

Income tax returns are excluded from the definition of a public record under SC FOIA and thus cannot be requested pursuant to a records request.

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W. Vital Statistics

1. Birth certificates

Confidential except to registrant, parent, guardian or legal representative.  S.C. Code § 44-63-80.

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2. Marriage and divorce

Marriage licenses are issued by and filed in the office of the probate judge of a county and any person may receive a certified copy.  S.C. Code Ann. § 20-1-340.  “Proper parties” (undefined in the statute) may obtain a copy of a marriage license from the State Department of Health and Environmental Control.  S.C. Code Ann. § 20-1-350. Divorce records are court records which are public, although some Family Court clerks need to be persuaded on this point.

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3. Death certificates

Available to members of deceased’s family, legal representative or others who demonstrate a direct and tangible interest to establish a personal property right.  S.C. Code Ann. § 44-63-84.

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4. Infectious disease and health epidemics

Individual medical records are exempt from disclosure under federal law, and sexually transmitted disease records are confidential.  S.C. Code Ann. § 44-29-135. Reports are required to be made to the State Department of Health and Environmental Control in instances of deaths from contagious or infectious diseases and chemical or other terrorism. The reports are to include the name and address of the patient and the nature of the disease. S.C. Code Ann. § 44-29-10.  It is possible that the information without the patient identifying information would constitute a public record under state law.

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IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

The act does not specify who is to receive the request. As a matter of practice, go to the person who has the documents you seek, unless the agency has a designee to receive requests.

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2. Does the law cover oral requests?

Three specific public records are to be made available for inspection and copying when the requester appears at the place where the records are maintained and makes an oral request: minutes of meetings, police reports, jail logs, and all documents produced by a public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period. S.C. Code Ann. § 30-4-30(d). For records other than those for which an in-person request will trigger their production, the act specifies that requests are to be in writing. Some public bodies will respond to written requests, but if you anticipate that you might have to resort to litigation to receive the records, make your request in writing so that there is a record of the request and the time for the public body's response begins.

Where a person requesting access to minutes of meetings, crime reports and jail logs appears in person to request access, there is no need for a written request. S.C. Code Ann. § 30-4-30(d). Oral requests are often honored by public bodies, but in many situations the body will require a written request to satisfy a deep-seated bureaucratic need for paper.

A denial of access for jail logs, police reports and minutes of meetings would be a violation of the act, and the remedies available, including injunctive relief, would have application. If you have made an oral request for other records, the oral request may not be sufficient to trigger the timetable for a response. A better practice if you anticipate a contest over the records is to make a written request.

There is no statutory procedure, but a letter to the person denying access confirming the denial would provide a starting point for litigation.

There are no subsequent steps with respect to oral requests for those categories of records that are to be made available in response to oral requests.

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

Each public body must within 10 days (excluding Saturdays, Sundays and legal public holidays) of the receipt of a written request for records less than 24-months-old notify the person making the request of the agency's determination regarding the records and the reasons for the agency's position. If the record requested is more than 24-months-old at the time of the request, the public body has 20 days to provide a written response regarding the availability of the information, including any reliance on any statutory exemptions. If a request is granted within the above timelines, the record must be furnished or made available for inspection or copying within 30 days (35 days for records older than 24 months) from when final determination or written response was provided. If written notification is not mailed or delivered personally to the requester within the time periods above after the request is made, the request must be considered approved and the responsive records must be provided to the requester within the 30 or 35-day time limit. If fees are required by the public body to make the requested information available, the time limit for performing that task does begin until the initial deposit (not to exceed 25 percent) is paid. The records do not have to be provided until the full amount of fees are paid. S.C. Code Ann. § 30-4-30(c). Until the decision by the Supreme Court of South Carolina in Litchfield Plantation Co. v. Georgetown County Water & Sewer Dist., 443 S.E.2d 574 (S.C. 1994) it could be argued that the public body's failure to respond within the time set by statute precluded the assertion of an exemption. The court held that a failure to respond within the statutory period meant only that the request for access to the nonexempt material had been approved. The various response, determination, and production deadlines mentioned above 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.” S.C. Code Ann. § 30-4-30(c).

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1. Statutory, regulatory or court-set time limits for agency response

None.

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2. Informal telephone inquiry as to status

3. Is delay recognized as a denial for appeal purposes?

Yes. A failure to respond and provide the records within the statutory time causes the request to be granted. The stated purpose of the act is to enable citizens to learn of the activities of government at a minimum cost or delay, so a delay can be considered to be a de facto denial of access. S.C. Code Ann. § 30-4-15.

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4. Any other recourse to encourage a response

Not available.

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C. Administrative appeal

Not applicable in South Carolina.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

Not applicable in South Carolina.

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3. Fee issues

Not applicable in South Carolina.

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4. Contents of appeal

5. Waiting for a response

Not applicable in South Carolina.

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6. Subsequent remedies

Not applicable in South Carolina.

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

"Any citizen of the State" may bring suit. "Citizen" would include corporations. S.C. Code Ann. § 30-4-100(A). Because the state may not give citizen to residents of the state, it is an open question whether a U.S. citizen that resides outside South Carolina may bring suit.

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2. Priority

Changes to SC FOIA in 2017, now provide that upon filing the lawsuit, the court must schedule an initial hearing within ten days of service of the lawsuit on all parties. If the court is unable to make a final ruling regarding the alleged violations, the court must establish a scheduling order to conclude the action within 6 months of filing. The 6-month deadline may be extended by the court “upon a showing of good cause.”  S.C. Code Ann. § 30-4-100(A).

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3. Pro se

It is possible to bring suit without an attorney, but this reduces the likelihood for success unless the pro se litigant has experience in making a focused argument.

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4. Issues the court will address

Suit is authorized "to enforce the provisions" of the act. Enforcement may relate to denial of the request, applicability of claimed exemptions from disclosure, reasonableness of the fees, format of the copies provided, constraints on access for inspection, the refusal to accept a request because the entity is not a public body, or any other matter within the scope of the act. S.C. Code Ann. § 30-4-100(A).

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a. Denial

This is the most common basis for a suit, and the method by which the public body's assertion of an exemption is tested.

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b. Fees for records

The Supreme Court of South Carolina has held that copy costs may not exceed the actual cost of making copies. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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c. Delays

Delay is treated as denial.

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d. Patterns for future access (declaratory judgment)

The act allows declaratory judgments as well as injunctive relief.

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5. Pleading format

Suit is subject to the South Carolina Rules of Civil Procedure and requires the filing of a summons and a complaint with allegations of fact and a request for relief.

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6. Time limit for filing suit

Suit must be filed and served no later than one year following the date on which the violation of the act occurred or one year after a public vote in public session when the vote discloses a previously undisclosed violation of the act. S.C. Code Ann. § 30-4-100(A).

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7. What court?

Court of Common Pleas.

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

See above.

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b. Court and litigation costs

See above.

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

Appeals must be noticed to the South Carolina Court of Appeals.

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2. Time limits for filing appeals

A notice of appeal must be served and filed within 30 days of receipt of the trial court order and appellant has 30 days thereafter to order a copy of the trial transcript. The schedule for briefing is established by the South Carolina Appellate Court Rules.

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3. Contact of interested amici

Persons or organizations interested in participating as amici must seek leave of the appellate court by filing a petition. The South Carolina Press Association frequently participates as amicus in appeals under the act and advises other interested groups where a case may be appropriate for amicus participation.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

Meetings are open to the public, including the news media. No citizenship or residency requirement is established. S.C. Code Ann. § 30-4-60.

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B. What governments are subject to the law?

"Public bodies" which are defined in the act as political subdivisions and entities supported in whole or in part by public funds or expending public funds. S.C. Code Ann. § 30-4-20(a).

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1. State

Yes.

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2. County

Yes.

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3. Local or municipal

Yes.

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C. What bodies are covered by the law?

"Public bodies" which are defined in the act as any public or governmental body or political subdivision of the state and entities supported in whole or in part by public funds or expending public funds. S.C. Code Ann. § 30-4-20(a).

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1. Executive branch agencies

a. What officials are covered?

The meetings of public bodies, including boards and commissions of the executive branch, are subject to the act. Meetings of the governor's cabinet are subject to the act in those instances when the cabinet is convened to discuss or act upon a matter over which the Governor has granted to the cabinet, by executive order, supervision, control, jurisdiction, or advisory power. S.C. Code Ann. § 30-4-65.

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b. Are certain executive functions covered?

A meeting is the convening of a quorum of the constituent membership of a public body, so an executive branch agency such as a commission or board would meet when a quorum of the commissioners or board members gathered. A recent Supreme Court decision, Quality Towing Inc. v. City of Myrtle Beach, 547 S.E.2d 862 (S.C. 2001, made clear the application of the act to advisory committees appointed by executive branch bodies.)

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c. Are only certain agencies subject to the act?

All public bodies are subject to the act for records and meetings, and where a single executive acts through subordinates who act as a committee or hearing panel, those meetings are subject to the act. Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. 2004).

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2. Legislative bodies

The legislature is subject to the act and specific provisions apply for meetings of committees and subcommittees. S.C. Code Ann. § 30-4-80(b). The General Assembly may enter into executive session as authorized by the state constitution and the rules of either house. S.C. Code Ann. § 30-3-70(e).

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3. Courts

Access to court proceedings is gained under state and federal constitutional provisions rather than under the act. See, e.g., Ex parte The Island Packet, 417 S.E.2d 575 (S.C. 1992).

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4. Nongovernmental bodies receiving public funds or benefits

A public body is defined to include entities supported in whole or in part by public funds or expending public funds, so the meetings of such bodies would be covered by the act. S.C. Code Ann. (1991) § 30-4-20(a).

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5. Nongovernmental groups whose members include governmental officials

If the nongovernmental group received support from public funds or expended public funds, the entity would be subject to the act. Membership by a governmental official in a group would not make the group subject to the act unless the group met the other qualifications. S.C. Code Ann. § 30-4-20(a). The receipt of public funds by a nongovernmental entity in exchange for goods and services will not make the nongovernmental entity a public body under the act. Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991); Sutler v. Palmetto Elec. Coop. Inc., 481 S.E.2d 179 (S.C. App. 1997).

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6. Multi-state or regional bodies

If the body meets the definition of a public body under the act, that is a body supported in whole or in part by public funds or expending public funds, it would be subject to the act. S.C. Code Ann. § 30-4-20(a).

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7. Advisory boards and commissions, quasi-governmental entities

Advisory boards, commissions and quasi-governmental bodies are defined as "public bodies" under the act and are subject to its open meetings requirements. S.C. Code Ann. § 30-4-20(a). Quality Towing, Inc v. City of Myrtle Beach, 547 S.E. 2d 862 (S.C. 2001).

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8. Other bodies to which governmental or public functions are delegated

The test to be satisfied under the act is whether the entity if it is not a governmental body is supported in whole or in part by public funds or expends public funds. If the test is met, the entity is subject to the act. S.C. Code Ann. § 30-4-20(a). Weston v. Carolina Research and Development Found., 401 S.E. 2d 161 (S.C. 1991).

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9. Appointed as well as elected bodies

If the entity is a governmental body, it is subject to the act. If the entity is supported in whole or in part by public funds or expends public funds, it is subject to the act without regard to how the membership is selected. S.C. Code Ann. § 30-4-2(a); Burton v. York County Sheriff, 594 S.E.2d. 888 (S.C. App. 2004).

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D. What constitutes a meeting subject to the law

1. Number that must be present

A meeting is the convening of a quorum of the constituent membership of a public body. S.C. Code Ann. § 30-4-20(d). A quorum unless otherwise defined in law is a simple majority of the constituent membership of the body. S.C. Code Ann. § 30-4-20(e).

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a. Must a minimum number be present to constitute a "meeting"?

A quorum must be present to have a "meeting" under the act. S.C. Code Ann. § 30-4-20(d).

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b. What effect does absence of a quorum have?

Under the act there can be no meeting without a quorum. Most governmental bodies have operational rules that provide that no business may be conducted in the absence of a quorum. S.C. Code Ann. § 30-4-20(d).

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2. Nature of business subject to the law

The test is not the nature of the business being transacted that makes a gathering subject to the act. The convening of a quorum “to discuss or act upon a matter of which the public body has supervision, control, jurisdiction or advisory power” constitutes a meeting subject to the act. S.C. Code Ann. (1991) § 30-4-20(d). No chance meeting, social gathering or electronic communication may be used to act on a matter within the jurisdiction of a public body. S.C. Code Ann. § 30-4-70(d).

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a. "Information gathering" and "fact-finding" sessions

The label given to a meeting is of no consequence so long as a quorum is present.

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b. Deliberation toward decisions

Some deliberations, such as whether to dismiss an employee, may be held in a meeting closed to the public, but the decision has to be made in an open meeting and the specific purpose for closing the meeting muse be stated. S.C. Code Ann. § 30-4-70.

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3. Electronic meetings

A meeting under the act occurs when a quorum of the constituent membership of the body convenes in person or "by means of electronic equipment." S.C. Code Ann. § 30-4-20(d). When the public body convenes electronically the act would seem to require an opportunity for the public to have access to the electronic meeting to make the meeting public.

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a. Conference calls and video/Internet conferencing

Electronic communications may be used to facilitate if there is an opportunity for public presence. The key language on the issue is found in section 30-4-70(C), which provides: "No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." While the quoted section has not been the subject of litigation, the law clearly precludes a public body from using e-mail, Twitter, Facebook or telephone communications to act.

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b. E-mail

Subject to the act.

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c. Text messages

While this issue has not been the subject of litigation, the law clearly precludes a public body from using e-mail, Twitter, Facebook or telephone communications to act.

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d. Instant messaging

See above.

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e. Social media and online discussion boards

See above.

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E. Categories of meetings subject to the law

All meetings of public bodies are subject to the act and required to be convened in public. S.C. Code Ann. § 30-4-60.

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1. Regular meetings

a. Definition

No express definition, but by implication those meetings that are scheduled to take place on a regular schedule. S.C. Code Ann. § 30-4-80(a).

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b. Notice

For regular meetings written public notice must be given at the beginning of each calendar year. For special, called or rescheduled meetings notice must be given as soon as is practicable but at least 24 hours in advance except for emergency meetings. Emergency is not defined, but it would seem to be that which cannot wait 24 hours for action. Legislative committees must post their meeting times during weeks of the regular session of the legislature and give 24-hour advance notice for meetings when the body is out of session. Legislative subcommittees during session must give notice of a meeting only if it is practicable to do so. Subcommittees other than legislative subcommittees must make reasonable and timely efforts to give notice. S.C. Code Ann. (1991) § 30-4-80.

Persons or organizations, local news media, or such other news media as may request notification are to receive notice of the times, dates, places, and agenda of all public meetings and efforts to comply with such notification must be noted in the public body’s minutes. S.C. Code Ann. § 30-4-80(E).

Notice of regular meetings must be posted on a bulletin board at the office, the meeting place of the public body, and the website maintained by the public body if it has one. S.C. Code Ann. § 30-4-80(A) and (D). The notice must include the agenda, date, time, and place of the meeting, and must be posted more than 24 hours before the meeting. S.C. Code Ann. § 30-4-80(A)

An agenda is required and must be posted for special, called or rescheduled meetings and optional for regular meetings. If an agenda is used for a regular meeting it is to be posted 24 hours in advance of the meeting. S.C. Code Ann. § 30-4-80. Persons requesting notice and local news media are to receive notice and an agenda for all meetings, suggesting that the optional nature of an agenda contained in section 30-4-80(a) has been supplanted by a mandatory agenda requirement in section 30-4-80(d).

An ordinance adopted by a county following two unannounced meetings was invalidated. Business License Opposition Committee v. Sumter County, 426 S.E.2d 745 (S.C. 1992). The act provides for injunctive relief as well as a declaratory judgment. Criminal penalties are provided for, but no prosecution has been made.

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c. Minutes

Minutes are required of all meetings. S.C. Code Ann. § 30-4-90.
Minutes must include at least: (a) the date, time and place of the meeting, (b) the members present or absent, (c) the substance of all matters proposed, discussed or decided and, at the request of any member, a record, by an individual member, of any votes taken, and (d) any other information that any member of the body requests be included in the minutes. S.C. Code Ann. § 30-4-90.
Minutes are public record, but disclosure of the minutes of closed sessions is not required. S.C. Code Ann. § 30-4-50(7). Minutes of meetings for the preceding six months are to be made available without a written request when the person seeking access or copies appears in person. S.C. Code Ann. § 30-4-30(d)(1).

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2. Special or emergency meetings

a. Definition

Not defined in the act, but since 24-hour advance notice is required for special meetings, an emergency meeting for which notice is not required should be for a purpose that cannot wait until the notice period has expired. S.C. Code Ann. § 30-4-80.

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b. Notice requirements

Notice is to be given as soon as practicable for non-regular meetings, but not less than 24 hours in advance of meetings. S.C. Code Ann. § 30-4-80(A). The act says "This requirement does not apply to an emergency meeting," but it is unclear whether the "requirement" relates to the notice itself or to the contents of notice. S.C. Code Ann. § 30-4-80(A).

Notice must be given to local news media and to persons, organizations and other news media requesting notification, and it must be posted to give notice to the public. S.C. Code Ann. § 30-4-80. Efforts to comply with such notification must be noted in the public body’s minutes. S.C. Code Ann. § 30-4-80(E).

Notice is to be posted on a bulletin board at the office of the public body or the place of the meeting. S.C. Code Ann, and the public body’s website if it has one. § 30-4-80(A).

An agenda must be provided for special meetings. No agenda requirement is imposed on emergency meetings. S.C. Code Ann. § 30-4-80.

There is no notice requirement for an emergency meeting, but the failure to provide notice for a special meeting could result in injunctive relief, including a voiding of any action taken at the unannounced meeting. Business License Opposition Committee v. Sumter County, 436 S.E.2d 745 (S.C. 1992).

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c. Minutes

Minutes must include (a) date, time and place of meeting, (b) members present or absent, (c) substance of all matters proposed, discussed or decided, and, at the request of any member, a record by member of votes taken, and (d) any other information that a member requests be included. S.C. Code Ann. § 30-4-90.
Minutes are public record, but the minutes of closed sessions do not have to be disclosed. S.C. Code Ann. § 30-4-50(7). Minutes of meetings for the preceding six months must be made available without a written request when the person seeking access appears in person. S.C. Code Ann. § 30-4-30(d)(1).

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3. Closed meetings or executive sessions

a. Definition

A closed meeting or executive session is one closed to the public for the purpose of discussing specific topic types which are enumerated in this code section. S.C. Code Ann. § 30-4-70.

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b. Notice requirements

One Court of Appeals decision has held that there is no obligation to give notice of an executive session. Herald Pub. Co. v. Barnwell, 351 S.E.2d 878 (S.C. App. 1986). It would seem that if there were to be action taken on the subject discussed in executive session, the action item would need to be on the agenda even if the executive session were not.

No notice other than the notice for a public meeting is required because an executive session must be convened from a public meeting. S.C. Code Ann. § 30-4-70.

Notice is to be given to local news media and other persons or groups who request notice, and notice of a meeting must be posted. S.C. Ann. § 30-4-80. Efforts to comply with such notification must be noted in the public body’s minutes. S.C. Code Ann. § 30-4-80(E).

Notice of the public meeting is to be posted in the office of the public body or at the place of the meeting, and the public body’s website if it has one. S.C. Code Ann. § 30-4-80.

No agenda is required for a regular meeting, but if used must be posted. An agenda is always required for a special meeting. S.C. Code Ann. § 30-4-80.

Notice of regularly scheduled meetings must be given at the first of each year, and must state at a minimum the date, time and place of the meetings. S.C. Code Ann. § 30-4-80(a).

The failure to give notice of a public meeting can result in injunctive relief against the public body. S.C. Code Ann. § 30-4-90. The failure to give notice of a meeting at which an ordinance was adopted led to the voiding of the ordinance by the court as an equitable remedy. Business License Opposition Committee v. Sumter County, 426 S.E. 2d 745 (S.C. 1992).

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c. Minutes

Minutes are required of all public meetings, but the minutes of the portion of the meeting held closed to the public need not be made public. S.C. Code Ann. § 30-4-90.
The act specifies that at a minimum the minutes must contain: (a) date, time and place of meeting, (b) members present or absent, (c) substance of all matters proposed or discussed [since no vote may be taken in executive session there should be no vote to record], and (d) any other information requested by a member to be included.
Minutes of executive sessions are public records, but exempt from mandatory disclosure. S.C. Code Ann. § 30-4-90(b).

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d. Requirement to meet in public before closing meeting

e. Requirement to state statutory authority for closing meetings before closure

The public body must state the specific purpose of the executive session prior to convening in executive session, but most members of public bodies cannot distinguish between a generic purpose, e.g., a personnel matter, and a specific purpose, e.g., to discuss the hiring of a new elementary school principal. S.C. Code Ann. § 30-4-70(b).

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f. Tape recording requirements

None.

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F. Recording/broadcast of meetings

All or any part of a meeting may be recorded by any person in attendance so long as the recording poses no active interference with the conduct of the meeting, except that executive session meetings may not be recorded. S.C. Code Ann. § 30-4-90(c).

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1. Sound recordings allowed

Tape recording of public meetings is allowed. S.C. Code Ann. § 30-4-90(c).

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2. Photographic recordings allowed

The act allows for recording by sonic or video recording, and while photo coverage is not specified, it is customarily allowed. S.C. Code Ann. § 30-4-90(c).

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G. Access to meeting materials, reports and agendas

All documents from the previous six months that were produced by the public body or its agent and were distributed to or reviewed by a member of the public body during a public meeting must be made available for public inspection during the hours of operation of the public body. S.C. Code Ann. § 30-4-30(D)(4).

The minutes of a meeting for the preceding six-month period are also available for public inspection. S.C. Code Ann. § 30-4-30(D)(1). Although agenda are not specifically mentioned alongside materials or minutes (as mentioned above) because agenda are required to be posted prior to a meeting, typically no written S.C. FOIA request is required to obtain this document.

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H. Are there sanctions for noncompliance?

Civil actions may be initiated for declaratory judgment and injunctive relief in the event the public body seeks to interfere with a citizen's right to record. S.C. Code Ann. § 30-4-100.

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A. Exemptions in the open meetings statute

1. Character of exemptions

Exemptions are for discussion of specific matters.
Closure is discretionary as the act states a public body may hold a meeting closed to the public for one or more of the specified purposes. S.C. Code Ann. § 30-4-70(a).

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2. Description of each exemption

a. Discussion of employment, appointment, compensation, promotion, demotion, discipline, or release of an employee, a student, or a person regulated by a public body. S.C. Code Ann. § 30-4-70(a)(1).
b. Discussion of negotiations incident to proposed contractual arrangements and proposed sale and purchase of property, receipt of legal advice and the position of the agency in an adversary situation involving the assertion of a claim against the agency. S.C. Code Ann. § 30-4-70(a)(2).
c. Discussion regarding the development of security personnel or devices. S.C. Code Ann. § 30-4-70(a)(3).
d. Investigative proceedings regarding allegations of criminal misconduct. S.C. Code Ann. § 30-4-70(a)(4).
e. Discussion of matters relating to the proposed location, expansion, or the provision of services encouraging location or expansion of industry or business in the area served by the public body. S.C. Code Ann. § 30-4-70(a)(5).
f. The Retirement System Investment Commission. S.C. Code Ann. § 30-4-70(a)(6).

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B. Any other statutory requirements for closed or open meetings

The legislature may meet in executive session in accordance with the state constitution and the rules of each house. S.C. Code Ann. § 30-4-70(e). Before going into executive session the public body must vote on a motion to enter into the session, and the specific purpose of the closed session must be stated if the vote is favorable. S.C. Code Ann. § 30-4-70(b). No action may be taken in executive session except to adjourn or return to public session. The public body may not commit to a course of action by the polling of members in executive session. Id.

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C. Court mandated opening, closing

A court could, within the scope of injunctive relief available under the act, order a meeting to be held open to the public.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Where a public body is holding an adversarial hearing the person appearing before the body may demand that the hearing be open to the public. The public body may hear the case in public and then convene in executive session to discuss the matter. No vote or formal action may be taken in executive session. The body must return to public session to vote. S.C. Code Ann. § 30-4-70.

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1. Deliberations closed, but not fact-finding

A public body making a decision regarding dismissal of an employee or the discipline of a regulated person or entity may discuss the decision in a meeting closed to the public, but may not make a decision outside of public view. S.C. Code Ann. § 30-4-70.

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2. Only certain adjudications closed, i.e. under certain statutes

A public body considering discipline or release of an employee, a student, or a person regulated by a public body may deliberate in closed session, but must vote on the issue in public. S.C. Code Ann. § 30-4-70.

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B. Budget sessions

The adoption of a budget should be public under the act because there is no exemption that fairly encompasses the budget process. But some public bodies try to debate budget matters behind closed doors, claiming that the discussion is about compensation of employees. Some also claim it relates to "personnel matters," notwithstanding there is no exception to the open meeting requirement for discussion of personnel matters.

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C. Business and industry relations

A public body may discuss in executive session matters relating to the proposed location or services to be provided for businesses in the area served by the public body. S.C. Code Ann. § 30-4-70(a)(5).

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D. Federal programs

There is no exemption for federal programs.

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E. Financial data of public bodies

Financial data relating to the assertion of a claim against a body could be discussed in executive session, but a discussion generally on financial data is not authorized. S.C. Code Ann. § 30-4-70(a)(2).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

While these categories of information would be exempt from mandatory disclosure in public records, there is no comparable exemption from public discussion. See City of Columbia v. A.C.L.U. of South Carolina, 475 S.E.2d 747 (S.C. 1996).

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G. Gifts, trusts and honorary degrees

There is no exemption for these matters as meetings.

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H. Grand jury testimony by public employees

Grand jury testimony is confidential no matter what the employment status of the witness. State v. Whitted, 305 S.E.2d 245 (S.C. 1983).

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I. Licensing examinations

Licensing examinations would be subject to the act only if conducted by a quorum of a public body. S.C. Code Ann. § 30-4-20(e).

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J. Litigation, pending litigation or other attorney-client privileges

Discussion of claims and litigation and the receipt of legal advice are allowed for executive session. S.C. Code Ann. § 30-4-70(a)(2).

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K. Negotiations and collective bargaining of public employees

Discussion of negotiations incident to a proposed contractual relationship may be had in executive session. S.C. Code Ann. § 30-4-70(a)(1).

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1. Any sessions regarding collective bargaining

There is no specific reference to collective bargaining in the act.

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2. Only those between the public employees and the public body

There is no provision in the act for executive session for collective bargaining.

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L. Parole board meetings, or meetings involving parole board decisions

A parole board could hold an executive session to discuss a parole matter, but in practice these discussions are public.

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M. Patients, discussions on individual patients

There is no reference in the act to patients.

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N. Personnel matters

A public body may hold an executive session discussion relating to the employment, appointment, compensation, promotion, demotion, discipline or release of an employee, but by the terms of the exemption the discussion must relate to an employee and not employees generally. S.C. Code Ann. § 30-4-70(a)(1).

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1. Interviews for public employment

The interview could be held in a session closed to the public. S.C. Code Ann. § 30-4-70(a)(1).

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2. Disciplinary matters, performance or ethics of public employees

Discussion of discipline of an employee could be held in a session closed to the public. S.C. Code Ann. § 30-4-70(a)(1).

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3. Dismissal, considering dismissal of public employees

A discussion regarding dismissal of an employee could be held in a session closed to the public. S.C. Code Ann. § 30-4-70(a)(1).

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O. Real estate negotiations

Discussion of negotiations incident to the sale or purchase of property may be held in executive session. The argument can be made that the public body can only discuss its negotiating position in a session closed to the public, but if it wants to negotiate as a body it must do so in public. S.C. Code Ann. § 30-4-70(a)(2).

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P. Security, national and/or state, of buildings, personnel or other

Discussion regarding the development of security personnel or devices may be held in executive session. S.C. Code Ann. § 30-4-70(a)(3).

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Q. Students, discussions on individual students

A school board could meet in executive session to consider promotion, demotion, discipline or release of an individual student. S.C. Code Ann. § 30-4-70(a)(1).

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IV. Procedure for asserting right of access

A. When to challenge

The South Carolina Press Association provides cards for reporters with language to use when challenging a public body attempting to enter executive session illegally. The card instructs reporters to stand, address the chair of the meeting and state an objection to closing the meeting.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No, but a court of equity will in the appropriate circumstances require the public body to appear in court to show cause why it should not be enjoined from holding a meeting closed to the public when the law requires the meeting to be open to the public. S.C. Code Ann. § 30-4-100.

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2. When barred from attending

The act does provide that a violation of the act is an irreparable injury for which no adequate remedy at law exists, so injunctive relief may be sought. S.C. Code Ann. § 30-4-100.

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3. To set aside decision

The injunctive relief provision of the act includes the power to set aside decisions reached improperly in executive session. Piedmont Pub. Serv. Dist. v. Cowart, 459 S.E.2d 876 (S.C. App. 1995).

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4. For ruling on future meetings

Injunctive relief could include a prohibition against future illegal executive session meetings. Business License Opposition Committee v. Sumter County, 426 S.E.2d 745 (S.C. 1992).

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5. Other

B. How to start

1. Where to ask for ruling

Under the South Carolina act, relief in the form of an injunction or a declaratory judgment may be sought from the Court of Common Pleas. The action is initiated by the filing of a summons and complaint. Rule 3, South Carolina Rules of Civil Procedure.

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a. Administrative forum

There is no administrative forum.

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b. State attorney general

Not an option for review.

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c. Court

A suit may be filed in the Court of Common Pleas seeking a declaratory judgment that the law has been violated and injunctive relief. S.C. Code Ann. § 30-4-100.

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2. Applicable time limits

A suit must be filed within one year of the date of the alleged violation. S.C. Code Ann. § 30-4-100(a).

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3. Contents of request for ruling

Pleadings would be governed by the South Carolina Rules of Civil Procedure and the complaint would require factual allegations and a request for relief.

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4. How long should you wait for a response

The public body, as a defendant, would have 30 days from the date of service of a summons and complaint to answer.

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5. Are subsequent or concurrent measures (formal or informal) available?

None specified.

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C. Court review of administrative decision

1. Who may sue?

Any citizen of the state, including corporations. S.C. Code Ann. § 30-4-100. It is unconstitutional for a state to confer citizenship upon a person, so the author to this update interprets this language, which has not yet been interpreted, to mean a U.S. citizen who is a resident of South Carolina.

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2. Will the court give priority to the pleading?

No statutory priority is given, but it is possible to seek temporary injunctive relief in advance of a meeting to prevent the harm, pending an opportunity to get the case heard. Rule 65, S.C. Rules of Civil Procedure.

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3. Pro se possibility, advisability

Pro se relief is possible, but is probably not the wisest course.

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4. What issues will the court address?

The court will review the propriety of a closed meeting, whether action was taken in the closed meeting and the appropriate relief, including an award of attorney fees and costs.

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a. Open the meeting

The court could order a meeting opened.

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b. Invalidate the decision

The court could invalidate a decision reached in executive session. Piedmont Pub. Serv. Dist. v. Cowart, 459 S.E.2d 876 (S.C. App. 1995).

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c. Order future meetings open

The court could enjoin future illegal executive session meetings. Business License Opposition Committee v. Sumter County, 426 S.E.2d 745 (S.C. 1992).

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5. Pleading format

Summons and complaint are pursuant to South Carolina Rules of Civil Procedure.

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6. Time limit for filing suit

A suit must be filed within one year from date of the illegal act.

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7. What court?

Court of Common Pleas.

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8. Judicial remedies available

Declaratory judgment and injunctive relief are available.

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9. Availability of court costs and attorney's fees

If a party prevails against the government, the court has discretion to award fees and costs. Two decisions make the award of attorney fees more certain if a party prevails against the public body. Burton v. York County Sheriff, 594 S.E.2d 888 (S.C. App. 2004); Campbell v. Marion County Hosp. Dist., 580 S.E.2d 163 (S.C. App. 2003).

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10. Fines

The act provides for civil fines of five hundred dollars where the public body acted arbitrarily and capriciously in violating the act. S.C. Code Ann. § 30-4-110(F).

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11. Other penalties

None.

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D. Appealing initial court decisions

1. Appeal routes

Appeal is taken to the South Carolina Court of Appeals pursuant to the South Carolina Rules of Appellate Procedure.

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2. Time limits for filing appeals

A notice of appeal must be served and filed within 30 days from receipt of the trial court order. Rule 203 (b)(1), S.C. Appellate Court Rules.

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3. Contact of interested amici

The Court of Appeals or the Supreme Court of South Carolina must grant leave for participation by amici. Rule 213, S.C. Rules of Appellate Procedure. The South Carolina Press Association often participates as amicus in cases arising under the act and provides notice to other groups that may be interested.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

No, but many local government bodies allow for public comment.

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B. Must a commenter give notice of intentions to comment?

The requirements would vary with the rules of the particular public body. Some public bodies require citizens to request a position on the agenda in order to address the body, while others merely have a sign-in sheet for a public comment period.

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C. Can a public body limit comment?

Yes, so long as the limitation is content-neutral e.g., the imposition of a time limit. A content-specific restriction would likely constitute unconstitutional prior restraint.

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D. How can a participant assert rights to comment?

There is no formal procedure.

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E. Are there sanctions for unapproved comment?

No.

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Appendix