The South Carolina Supreme Court held in the 2015 case of Donohue v City of North Augusta that a public body describing the purpose of an executive session as a "proposed contractual matter" is not specific enough to comply with the Freedom of Information Act when entering executive session.
The Court noted that state law allows a public body to hold a closed meeting for any one of five reasons, provided that its "specific purpose" is announced in the open session. See accompanying chart.
S.C. Code Ann. § 30-4-70 (b) defines "specific purpose" as:
"a description of the matter to be discussed as identified in items (1) through (5) of subsection (a) of this section." If a public body holds an executive session for purposes described in S.C. Code Ann. § 30-4-70 (a) (1) or 30-4-70 (a) (5), it does not have to disclose the identity of the individual or entity being discussed.
During the council meetings at issue, the Court observed that city council did not invoke either of the two subsections that specifically allow the identity of the individual or entity to be withheld. Rather, in each of the 11 executive sessions challenged by Donohue, the minutes reflect council merely stated that the specific purpose of the meeting was to be a "contractual matter." As such, the court determined that council had failed to satisfy the "specific purpose" requirement.
Although the Court’s analysis confirms a distinction between what is required when going into closed session pursuant to (a) (1) or (a) (5) as opposed to the requirements when going into closed session pursuant to (a) (2) through (a) (4), it did not provide details regarding what council should include in its announcement before going into executive session under one as opposed to the other.
Because there are still many questions about this ruling, councils should discuss any questions regarding executive session with their city attorney. The Municipal Association will continue engaging with local government organizations, the SC Press Association, municipal attorneys and attorneys specializing in matters related to the Freedom of Information Act to determine whether more specific guidance is needed.
For additional information, contact Tiger Wells at email@example.com
Executive session specific purposes allowed by state law
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. (The identity of the individual or entity being discussed is not required to be disclosed.)
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.
Discussion regarding the development of security personnel or devices.
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. (The identity of the individual or entity being discussed is not required to be disclosed.)