FOIA requests can be an invaluable source of information in SC, although it is sometimes an uphill battle getting government agencies to turn over documents and information…
In this article, we will look at the basics of FOIA requests in SC, including:
- The types of information you can get under the Freedom of Information Act in SC,
- How much a FOIA request should cost,
- When you can sue a government agency for refusing to comply with SC’s Freedom of Information Act, and
- How FOIA requests can be used in criminal defense.
What Do FOIA Requests Cover in SC?
You can use FOIA requests to get public records from any public body in SC – at a reasonable cost. And, if the agency does not comply, you can 1) sue them to force them to turn over the information and 2) recover your attorney fees and costs.
First, you need to understand the definitions of “public body” and “public record,” as well as the information that is exempt from FOIA under SC law.
SC Code Section 40-4-20 defines a “public body” as any government agency or any private organization that is supported – even partially – by public funds:
…any department of the State, a majority of directors or their representatives of departments within the executive branch of state government as outlined in Section 1-30-10, any state board, commission, agency, and authority, any public or governmental body or political subdivision of the State, including counties, municipalities, townships, school districts, and special purpose districts, or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds, including committees, subcommittees, advisory committees, and the like of any such body by whatever name known, and includes any quasi-governmental body of the State and its political subdivisions, including, without limitation, bodies such as the South Carolina Public Service Authority and the South Carolina State Ports Authority.
“Public records” means any documents or records kept by a public body, including “all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.”
To avoid unnecessary litigation and bad-faith refusals to provide public records of a sensitive nature, SC law also lists specific types of records that are considered public records for purposes of SC’s Freedom of Information Act.
SC Code Section 40-4-50 makes it clear that “public records” includes:
(1) the names, sex, race, title, and dates of employment of all employees and officers of public bodies;
(2) administrative staff manuals and instructions to staff that affect a member of the public;
(3) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(4) those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the public body;
(5) written planning policies and goals and final planning decisions;
(6) information in or taken from any account, voucher, or contract dealing with the receipt or expenditure of public or other funds by public bodies;
(7) the minutes of all proceedings of all public bodies and all votes at such proceedings, with the exception of all such minutes and votes taken at meetings closed to the public pursuant to Section 30-4-70;
(8) reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed. Where a report contains information exempt as otherwise provided by law, the law enforcement agency may delete that information from the report; and
(9) 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.
Is There a Time Limit for an Agency’s Response to FOIA Requests?
If the request is made in person, SC Code Section 30-4-30 says that the following records “must be made available for public inspection and copying during the hours of operations of the public body:”
- Minutes from the previous six months for any meetings of the public body,
- Incident reports for the previous 14 days,
- Lists of incarcerated inmates at jails, detention centers, or prisons for the previous three months, and
- “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.”
In most other cases, the public body has ten days to respond letting you know if they will provide the documents or not, and then 30 days to make the documents available for copying or inspection.
If you are seeking information through a FOIA request, you should first make sure that the information you are looking for is not exempt from the Freedom of Information Act.
SC Code § 30-3-40 has a long list of exemptions that include:
- Trade secrets,
- Personal information that would result in an unreasonable invasion of privacy,
- Any matters specifically exempted by statute or law,
- Proposed contractual arrangements or sales of property before the contract is entered into or the sale is final,
- Compensation paid by a public body that is under $50,000/ year,
- Attorney work product,
- Structural bridge plans or designs,
- Autopsy reports, and
- Other categories – check the statute before making your FOIA request.
Law enforcement records might also be exempt, but only if they would:
- Interfere with a prospective law enforcement proceeding,
- Deprive a person of a fair trial,
- Constitute an unreasonable invasion of privacy,
- Disclose a confidential source,
- Disclose law enforcement techniques or procedures,
- Endanger the life or safety of a person, or
- Disclose the contents of a wiretap unless it was already disclosed at trial.
In some cases, an agency may be required to provide the documents but redact the exempt information listed above from the documents provided.
How Much Does a FOIA Request in SC Cost?
The costs of a FOIA request in SC vary depending on the agency you are seeking the documents from.
In some cases, the agency will provide the documents for free, while in other cases the agency may charge a per-page or per-hour cost. The bottom line is the expense must be reasonable, and the agency cannot charge a prohibitively high fee to discourage FOIA requests…
What can you do if the agency attempts to charge an unreasonable fee, or if they refuse to provide the documents altogether?
FOIA Lawsuits in SC
Under SC Code Section 30-4-100, any SC citizen can sue to enforce the provisions of SC’s Freedom of Information, asking the court for a declaratory judgment, injunctive relief, or both:
(A) A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of this chapter in appropriate cases if the application is made no later than one year after the date of the alleged violation or one year after a public vote in public session, whichever comes later. Upon the filing of the request for declaratory judgment or injunctive relief related to provisions of this chapter, the chief administrative judge of the circuit court must schedule an initial hearing within ten days of the service on all parties. If the hearing court is unable to make a final ruling at the initial hearing, the court shall establish a scheduling order to conclude actions brought pursuant to this chapter within six months of initial filing. The court may extend this time period upon a showing of good cause. The court may order equitable relief as it considers appropriate, and a violation of this chapter must be considered to be an irreparable injury for which no adequate remedy at law exists.
In your lawsuit, you should also ask for attorney’s fees and costs – if you are successful in your FOIA lawsuit, the law also authorizes the court to order the government agency to pay your costs:
(B) If a person or entity seeking relief under this section prevails, he may be awarded reasonable attorney’s fees and other costs of litigation specific to the request. If the person or entity prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion of those attorney’s fees.
How is FOIA Used in Criminal Defense?
In criminal defense practice, one of the first things we do is investigate the allegations against our client and the law that will be applied to their case. In addition to witness interviews, family interviews, subpoenas, and formal discovery requests, we may obtain information as needed from government agencies through the use of FOIA requests.
How Do I Make a FOIA Request in SC?
The procedure for making a FOIA request is different for each agency. Most government agencies will have a form that you must fill out and submit to obtain the documents requested – depending on the agency and the information sought, you may be able to do this in person, through their website, through email, by mail, or over the telephone.
Your starting point is to contact the agency and ask them what their procedure is for FOIA requests.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.