Transcript Accountability Under Title XV of the American Recovery and

South Carolina Freedom of Information Act
Boyd B. (Nick) Nicholson, Jr.
Haynsworth Sinkler Boyd, P.A.
75 Beattie Place, 11th Floor (29601)
P.O. Box 2048
Greenville, SC 29602
Telephone: (864) 240-3247
Facsimile: (864) 240-3336
E-mail: [email protected]
FOIA – A BRIEF REFRESHER
THE PURPOSE
“[I]t is vital in a democratic society that public business be performed in an open
and public manner so that citizens shall be advised of the performance of public
officials and of the decisions that are reached in public activity and in the
formulation of public policy. Toward this end, provisions of this chapter must be
construed so as to make it possible for citizens, or their representatives, to
learn and report fully the activities of their public officials at a minimum cost
or delay to the persons seeking access to public documents or meetings.”
S.C. Code Ann. § 30-4-15
“FOIA is remedial in nature and should be liberally construed to carry out its
purpose.”
Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 161, 547 S.E.2d 862,
864-65 (2001).
FOIA – A BRIEF REFRESHER
Application
A charter school must … be subject to the Freedom of Information Act, including the
charter school and its governing body.
S.C. Code Ann. § 59-40-50(B)(10).
FOIA defines "public body" as “any state board, commission, agency, and authority, and
public or governmental body or political subdivision of the State, including counties,
municipalities, townships, school districts, and special purpose districts . . . including
committees, subcommittees, advisory committees, and the like of any such body by
whatever name known.
S.C. Code Ann. § 30-4-20(a).
Meaning of "Public record" is very broad. It includes:
[A]ll books, papers, maps, photographs, cards, tapes, recordings, or other
documentary materials regardless of physical form or characteristics
prepared, owned, used, in the possession of, or retained by a public body.
…
S.C. Code Ann. § 30-4-20(c).
Right to Information
(a) Any person has a right to inspect or copy any public record of a public body,
except as otherwise provided by Section 30-4-40, in accordance with reasonable
rules concerning time and place of access.
(c) Each public body, upon written request for records made under this chapter, shall
within fifteen days (excepting Saturdays, Sundays, and legal public holidays) of the
receipt of any such request notify the person making such request of its
determination and the reasons therefor. Such a determination shall constitute the
final opinion of the public body as to the public availability of the requested public
record and, if the request is granted, the record must be furnished or made
available for inspection or copying. If written notification of the determination of
the public body as to the availability of the requested public record is neither
mailed nor personally delivered to the person requesting the document within the
fifteen days allowed herein, the request must be considered approved.
S.C. Code Ann. § 30-4-30(a) and (c).
[(b) The public body may establish and collect fees not to exceed the actual cost of
searching for or making copies of records. Fees charged by a public body must be
uniform for copies of the same record or document. However, members of the
General Assembly may receive copies of records or documents at no charge from
public bodies when their request relates to their legislative duties. The records must
be furnished at the lowest possible cost to the person requesting the records. Records
must be provided in a form that is both convenient and practical for use by the person
requesting copies of the records concerned, if it is equally convenient for the public
body to provide the records in this form. Documents may be furnished when
appropriate without charge or at a reduced charge where the agency determines that
waiver or reduction of the fee is in the public interest because furnishing the
information can be considered as primarily benefiting the general public. Fees may
not be charged for examination and review to determine if the documents are subject
to disclosure. Nothing in this chapter prevents the custodian of the public records
from charging a reasonable hourly rate for making records available to the public nor
requiring a reasonable deposit of these costs before searching for or making copies of
the records.
S.C. Code Ann. § 30-4-30(b).
Right to Information (cont.)
(d) The following records of a public body must be made available for
public inspection and copying during the hours of operations of the
public body without the requestor being required to make a written
request to inspect or copy the records when the requestor appears
in person:
(1) minutes of the meetings of the public body for the preceding six
months;
…
S.C. Code Ann. § 30-4-30(d).
§ 30-4-40. Matters exempt from disclosure.
(1) Trade secrets …,
(2) Information of a personal nature where the public disclosure
thereof would constitute unreasonable invasion of personal
privacy. Information of a personal nature shall include, but not be
limited to, information as to gross receipts contained in applications
for business licenses and information relating to public records which
include the name, address, and telephone number or other such
information of an individual or individuals who are handicapped or
disabled when the information is requested for person-to-person
commercial solicitation of handicapped persons solely by virtue of
their handicap. This provision must not be interpreted to restrict
access by the public and press to information contained in public
records.
(4) Matters specifically exempted from disclosure by statute or law.
§ 30-4-40. Matters exempt from disclosure.
…
(5) Documents of and documents incidental to proposed contractual
arrangements and documents of and documents incidental to proposed sales
or purchases of property; however:
(a) these documents are not exempt from disclosure once a contract is entered
into or the property is sold or purchased except as otherwise provided in this
section;
(b) a contract for the sale or purchase of real estate shall remain exempt from
disclosure until the deed is executed, but this exemption applies only to those
contracts of sale or purchase where the execution of the deed occurs within
twelve months from the date of sale or purchase;
(c) confidential proprietary information provided to a public body for
economic development or contract negotiations purposes is not required to
be disclosed.
…
§ 30-4-40. Matters exempt from disclosure.
…
(7) Correspondence or work products of legal counsel for a public body
and any other material that would violate attorney-client relationships.
…
§ 30-4-40. Matters exempt from disclosure.
…
(9) Memoranda, correspondence, documents, and working papers relative to
efforts or activities of a public body and of a person or entity employed by or
authorized to act for or on behalf of a public body to attract business or
industry to invest within South Carolina; however, an incentive agreement
made with an industry or business: (1) requiring the expenditure of public funds
or the transfer of anything of value, (2) reducing the rate or altering the method
of taxation of the business or industry, or (3) otherwise impacting the offeror
fiscally, is not exempt from disclosure after:
(a) the offer to attract an industry or business to invest or locate in the offeror's
jurisdiction is accepted by the industry or business to whom the offer was made;
and
(b) the public announcement of the project or finalization of any incentive
agreement, whichever occurs later.
…
§ 30-4-40. Matters exempt from disclosure.
…
(11) Information relative to the identity of the maker of a gift to a public body if the
maker specifies that his making of the gift must be anonymous and that his identity
must not be revealed as a condition of making the gift. For the purposes of this item, "gift
to a public body" includes, but is not limited to, gifts to any of the state-supported colleges
or universities and museums. With respect to the gifts, only information which identifies
the maker may be exempt from disclosure. If the maker of any gift or any member of his
immediate family has any business transaction with the recipient of the gift within three
years before or after the gift is made, the identity of the maker is not exempt from
disclosure.
…
§ 30-4-40. Matters exempt from disclosure.
…
(13) All materials, regardless of form, gathered by a public body during a search
to fill an employment position, except that materials relating to not fewer
than the final three applicants under consideration for a position must be
made available for public inspection and copying. In addition to making
available for public inspection and copying the materials described in this item,
the public body must disclose, upon request, the number of applicants considered
for a position. For the purpose of this item "materials relating to not fewer than
the final three applicants" do not include an applicant's income tax returns,
medical records, social security number, or information otherwise exempt from
disclosure by this section.
…
§ 30-4-60. Meetings of public bodies shall be open.
Every meeting of all public bodies shall be open to the public unless
closed pursuant to § 30-4-70 of this chapter.
§ 30-4-80(a). Notice of Meetings.
[M]ust give written public notice of their regular meetings at the beginning of each
calendar year. The notice must include the dates, times, and places of such meetings.
Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board
at the office or meeting place of the public body at least twenty-four hours prior to
such meetings.
All public bodies must post on such bulletin board public notice for any called,
special, or rescheduled meetings. Such notice must be posted as early as is
practicable but not later than twenty-four hours before the meeting. The notice must
include the agenda, date, time, and place of the meeting. This requirement does not
apply to emergency meetings of public bodies.
§ 30-4-80. Notice of Meetings (cont.)
(d) Written public notice must include but need not be limited to posting a
copy of the notice at the principal office of the public body holding the
meeting or, if no such office exists, at the building in which the meeting is to
be held.
(e) All public bodies shall notify persons or organizations, local news media,
or such other news media as may request notification of the times, dates,
places, and agenda of all public meetings, whether scheduled, rescheduled, or
called, and the efforts made to comply with this requirement must be noted
in the minutes of the meetings.
§ 30-4-90. Must Keep Meeting Minutes.
(1) The date, time and place of the meeting.
(2) The members of the public body recorded as either present or absent.
(3) 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.
(4) Any other information that any member of the public body requests be included or
reflected in the minutes.
§ 30-4-70. Meetings which may be closed; procedure; circumvention of
chapter; disruption of meeting; executive sessions of General Assembly.
(a) A public body may hold a meeting closed to the public for one or more of the
following reasons:
(1) Discussion of employment, appointment, compensation, promotion,
demotion, discipline, or release of an employee, a student, or a person regulated
by a public body or the appointment of a person to a public body; however, if an
adversary hearing involving the employee or client is held, the employee or
client has the right to demand that the hearing be conducted publicly. Nothing
contained in this item shall prevent the public body, in its discretion, from
deleting the names of the other employees or clients whose records are
submitted for use at the hearing.
…
§ 30-4-70. Meetings which may be closed; procedure; circumvention of
chapter; disruption of meeting; executive sessions of General Assembly.
…
(2) Discussion of negotiations incident to proposed contractual arrangements
and proposed sale or purchase of property, the receipt of legal advice where the
legal advice relates to a pending, threatened, or potential claim or other matters
covered by the attorney-client privilege, settlement of legal claims, or the
position of the public agency in other adversary situations involving the
assertion against the agency of a claim.
…
(5) Discussion of matters relating to the proposed location, expansion, or the
provision of services encouraging location or expansion of industries or other
businesses in the area served by the public body.
§ 30-4-70 – Executive Session (cont.)
(b) Before going into executive session the public agency shall vote in public on the
question and when the vote is favorable, the presiding officer shall announce the specific
purpose of the executive session. As used in this subsection, “specific purpose” means a
description of the matter to be discussed as identified in items (1) through (5) of subsection
(a) of this section. However, when the executive session is held pursuant to Sections 30-470(a)(1) or 30-4-70(a)(5), the identity of the individual or entity being discussed is not
required to be disclosed to satisfy the requirement that the specific purpose of the
executive session be stated. No action may be taken in executive session except to (a)
adjourn or (b) return to public session. The members of a public body may not commit
the public body to a course of action by a polling of members in executive session.
§ 30-4-70 – Executive Session (cont.)
(c) 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.
Evening Post Publishing Company, d/b/a The Post and Courier v.
Berkeley County School District, Opinion No. 26949 (March 21, 2011).
“School District is governed by a nine-member Board of Education
(Board) elected by residents of Berkeley County. In 1997, Dr. J. Chester
Floyd was hired by the Board as Superintendent for School District.
Pursuant to a Professional Employment Agreement executed in 2005
between Floyd and School District, Floyd was hired through June 2010. A
provision of this contract required the Board to evaluate Floyd at least
once a year. This evaluation was the basis for determining, among other
things, whether Floyd received a 5% increase in his compensation.”
…
Evening Post Publishing Company, d/b/a The Post and Courier v.
Berkeley County School District, Opinion No. 26949 (March 21, 2011).
(cont’d.)
“During Floyd's evaluation for the 2006-2007 school year, the law firm of
Childs and Halligan, PA, became involved at the request of Frank Wright,
Chairman of the Board. Childs and Halligan prepared a summary of each
individual Board member's answers to both a written questionnaire and a
telephone interview concerning Floyd's performance. The Board met in
executive session to discuss Floyd's performance under the agreement,
and after the session, Wright publicly announced the Board found
Floyd's performance to be satisfactory, entitling Floyd to the 5% pay
increase.”
Evening Post Publishing Company, d/b/a The Post and Courier v.
Berkeley County School District, Opinion No. 26949 (March 21, 2011).
(cont’d.)
Evening Post, after discovering information regarding the written
questionnaire and telephone interview, wrote to Floyd on two separate
occasions requesting access to certain documents pursuant to FOIA. Floyd
denied both requests, stating the evaluations were exempt from disclosure
under FOIA pursuant to the attorney-client privilege. Shortly thereafter,
Evening Post requested access to these items a third time, but directed its
request to the Board. Wright responded to this third request, denying it on
the same grounds as Floyd, but adding that the personal privacy
exemption under FOIA also applied to the evaluations.
Evening Post Publishing Company, d/b/a The Post and Courier v. Berkeley
County School District, Opinion No. 26949 (March 21, 2011).
(cont’d.)
…
Evening Post filed a lawsuit pursuant to the Uniform Declaratory Judgment Act,
alleging that the evaluations were public records, the School District's denial of
access to the public records violated FOIA, and School District should be
enjoined from violating FOIA. Evening Post asked, in the alternative, that the
circuit court review the evaluations in camera to determine if they were public
records and whether the exemptions claimed by School District were applicable.
School District [*4] filed a timely answer, asserting as an affirmative defense that
the records sought were exempt from disclosure under FOIA, specifically Section
30-4-40(a)(7) of the South Carolina Code (2007) and attaching the affidavits of
Wright and Kathryn Long Mahoney, a Childs and Halligan attorney. In
conjunction with its answer, School District filed a motion for judgment on the
pleadings.
…
Evening Post Publishing Company, d/b/a The Post and Courier v. Berkeley
County School District, Opinion No. 26949 (March 21, 2011).
(cont’d.)
…
Prior to the hearing, School District submitted a set of sealed documents to the
circuit court for an in camera review, which the circuit court accepted. The
documents submitted were: (1) Correspondence from Daryl T. Hawkins (Floyd's
[*5] lawyer) to Wright; (2) a memorandum from Childs and Halligan to Board
Members; (3) a blank copy of the written questionnaire attached to the above
memorandum; and (4) a compilation prepared by Childs and Halligan of
information from questionnaires and telephone interviews. School District did not
submit the completed questionnaires to the circuit court. Because the circuit court
considered matters outside the pleadings in conjunction with School District's
Rule 12(c) motion, the circuit court treated the matter as a motion for summary
judgment under Rule 56, SCRCP. After taking the matter under advisement, the
circuit court granted summary judgment to School District and denied Evening
Post's motion to compel. Evening Post appealed to the court of appeals and the
case was certified to this Court pursuant to Rule 204, SCACR.
…
Evening Post Publishing Company, d/b/a The Post and Courier v. Berkeley
County School District, Opinion No. 26949 (March 21, 2011).
(cont’d.)
…
Additionally, School District's attorney admitted at the motions hearing that
the evaluations were within the normal course of events, and that attorney
involvement was not necessary to the process. During oral argument before
this Court, School District's [*11] attorney clarified his statement by noting
that while attorney involvement normally is not required, it was necessary in
this particular instance. Thus, two reasonable inferences regarding the necessity
of attorney involvement can be drawn: (1) The Board's annual review of the
superintendent, required by Floyd's contract was within the normal course of
events, or (2) attorney involvement was required because of the contentious
environment surrounding the Board. "Summary judgment should not be granted . . .
if there is dispute as to the conclusion to be drawn from those facts." Tupper v.
Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997) (citing
Gilliland v. Elmwood Props., 301 S.C. 295, 391 S.E.2d 577 (1990)).
…
Evening Post Publishing Company, d/b/a The Post and Courier v. Berkeley
County School District, Opinion No. 26949 (March 21, 2011).
(cont’d.)
…
Finally, we note the policy considerations involved in this case support our
decision that summary judgment was improper at this early stage in the
proceedings. The General Assembly, by the clear language of the statute,
believes FOIA should be broadly construed to allow the public to gain access
to public records. The interest in confidentiality expressed through the
attorney-client privilege should not trump the public's right to know at this
juncture. More development [*12] of the facts surrounding the hiring of Childs
and Halligan as well as court review of the actual completed questionnaire is
necessary to explore these competing interests before rendering judgment as a
matter of law.
The New York Times Co., d/b/a The Spartanburg Herald-Journal v. Spartanburg County
School District No. 7, 374 S.C. 307, 649 S.E.2d 28 (2007).
“While Spartanburg County School District No. 7 ("appellant") was searching for a school
superintendent, respondents transmitted a FOIA request seeking material relative to
appellant's search. Specifically, respondents requested, "[A]ccess to all materials gathered
by the Spartanburg School District No. 7 Trustees regardless of form, relating to not fewer
than the final three applicants considered for the District No. 7 superintendent's position,"
which tracked the language found in S.C. Code Ann. § 30-4-40(a)(13).
Appellant described [***2] its superintendent selection process as beginning with a group
of approximately thirty applicants. That group was narrowed to five "semi-finalists,"
out of which two "finalists" were selected. The district had assured the [*310] five
semi-finalists that only the identities of the finalists would be revealed. As a result,
appellant only offered to make available material relating to the two individuals
considered to be "finalists.“
[Thus, Appellant did not provide information relative to a third candidate.]
…
The New York Times Co., d/b/a The Spartanburg Herald-Journal v.
Spartanburg County School District No. 7, 374 S.C. 307, 649 S.E.2d 28
(2007).
(cont’d.)
…
Appellant contends that § 30-4-40(a)(13) only mandates disclosure of
those applicants deemed by the public body to be the "final" applicants,
even if that number is fewer than three. We disagree.
…
The New York Times Co., d/b/a The Spartanburg Herald-Journal v.
Spartanburg County School District No. 7, 374 S.C. 307, 649 S.E.2d 28 (2007).
(cont’d.)
…
The statutory language requiring disclosure [***5] of materials relating to "not
fewer than the final three applicants" requires the public body to disclose the final
pool of applicants comprised of at least three people. We do not agree with
appellant that only those applicants deemed by the agency to be "finalists"
are subject to disclosure. According to the plain language of the statute,
disclosure is limited to the final pool consisting of not fewer than three
applicants.
…
The New York Times Co., d/b/a The Spartanburg Herald-Journal v.
Spartanburg County School District No. 7, 374 S.C. 307, 649 S.E.2d 28 (2007).
(cont’d.)
…
Appellant also argues that § 30-4-40(a)(13), as interpreted by the circuit court, has
the absurd effect of forcing public employers to name three finalists even though
there may only be two qualified candidates. We disagree.
The fact that a public employer has to disclose information regarding an
employment search does not in any way force the employer to officially name
three finalists. The statute simply requires a public employer [***6] to disclose
material relating to a larger group of applicants if it chooses to name one or
two "finalists." Construing § 30-4-40(a)(13) as urged by appellant would allow
public employers to avoid disclosure by naming only one or two "finalists." We
will reject a statutory interpretation that leads to a result so plainly absurd that it
could not have been intended by the legislature or would defeat the plain
legislative intention.
Seago v. Horry County, 378 S.C. 414, 663 S.E.2d 38 (2008).
“Horry County's geographic information systems (GIS) department developed a
digital database to combine several layers of information onto one digital
photographic map of the county. The GIS department took over 4,000 orthophoto,
or aerial images, of the county and compressed them into a seamless collage in
the "Mr. Sid" computer format.
…
Horry County developed its digital database system at a cost of $ 7.5 million
dollars [and] it costs nearly $ 1 million each year to update the information in
the flat files.
…
To protect its investment and the integrity of the data from manipulation or
alteration by subsequent users, Horry County applied for copyrights ….
Seago v. Horry County, 378 S.C. 414, 663 S.E.2d 38 (2008).
(Cont’d.)
…
Seago made a FOIA request for a copy of the "Orthophoto Coverage in Mr. Sid
format (Countywide)" so he could place the digital photographic map on his
website for use by his customers. In January 2002, Lisa Bourcier, Director of
Public Information for Horry County, informed Seago that he could obtain a
copy of the information for a fee of $ 100, but he would have to sign a licensing
agreement acknowledging Horry County's copyright on the information and
restricting any further commercial use without prior written consent. Seago did
not object to the fee, but he refused to sign the licensing agreement. Seago did
not obtain the requested information.
…
Seago v. Horry County, 378 S.C. 414, 663 S.E.2d 38 (2008).
(Cont’d.)
…
[T]he master determined: [***7] (1) the requested information constituted a
public record subject to disclosure under FOIA because the definition of
"public record" is broad enough to include the documentary materials that the flat
file records could be exported into; (2) Horry County could copyright its
materials, and the copyright protections could be read harmoniously with
FOIA, because the right to access public documents is separate and distinct from
any right to subsequent distribution; (3) FOIA is satisfied once access is granted
to the information; and (4) Horry County could impose a licensing fee in excess
of the cost of reproducing the data "where, as under the circumstances of this
case, the data is being released for purposes that extend beyond initial access to a
public record as allowed by FOIA," [*422] and in light of Seago's testimony that
he had no objection to the fees being charged to him.
…
Seago v. Horry County, 378 S.C. 414, 663 S.E.2d 38 (2008).
(Cont’d.)
…
Appellants argue the master erred in finding the licensing fees charged by Horry
County did not violate FOIA because: (1) the fees exceed the actual costs for
making copies; and (2) the fees are not charged uniformly for the same records.
FOIA provides that a "public body may establish and collect fees not to exceed
the actual cost of searching for or making copies of records," and the fees must
be uniform for copies of the same record or document. S.C. Code Ann. § 30-430(b) (2007). "The records must be furnished at the lowest possible cost to the
person requesting the records." Id. However, the public body may decide not to
charge a fee where it determines the waiver of the fee is in the public interest
because "furnishing the information can be considered as primarily benefitting
the general public." Id.
...
Seago v. Horry County, 378 S.C. 414, 663 S.E.2d 38 (2008).
(Cont’d.)
…
FOIA limitations on the fee structure for providing copies of public records are
applicable only to those copies that are provided in keeping with the spirit of
FOIA. FOIA fee provisions do not contemplate subsequent commercial
distribution of copyright-protected documents for profit.
FOIA is unambiguous in setting forth the method of determining fees for
providing copies contemplated by the Act. This method does not change
depending on the status of the requester. However, FOIA does not [**46]
control fees for subsequent commercial distribution for profit of copyrighted
public records.”
Freedom of Information Act and Procurement Selection Committees
Quality Towing v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862
(2001).
•
The City was required to bid the contract using requests for proposals
("RFP"). According to the RFP, the City would use six weighted criteria to
evaluate each proposal: price, equipment, facilities, reputation, ability to
perform, and insurance.
•
The City Manager formed a review committee to evaluate the proposals.
The Committee consisted of City employees with experience in towing
companies and/or procurement. No City Council members.
•
The Committee was instructed to evaluate each of the proposals and to
advise and aid the City Manager in his determination of which proposal best
met the City's requirements.
…
Freedom of Information Act and Procurement Selection Committees
…
Quality Towing v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862 (2001).
•
Was the RFP “review committee” subject to the Freedom of Information
Act?
•
Trial Court said “No,” but the Supreme Court said “Yes.”
•
FOIA defines "public body" as “any state board, commission, agency, and
authority, and public or governmental body or political subdivision of the
State, including counties, municipalities, townships, school districts, and
special purpose districts . . . including committees, subcommittees, advisory
committees, and the like of any such body by whatever name known.
•
“We hold the plain language of section 30-4-20(a) clearly includes an
‘advisory committee’ such as the one set up in the instant case.”
FAMILY EDUCATIONAL RIGHTS
AND PRIVACY ACT
The Family Educational Rights and Privacy Act (“FERPA”),
20 U.S.C. § 1232g, provides than an educational agency or
institution may not receive funds if it has “a policy or
practice of permitting the release of education records…of
students without the written consent of their parents to any
individual, agency, or organization. . . .”