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Top 5 S.C. FOIA questions

By Bill Rogers, executive director of the S.C. Press Association

David Letterman was famous for his Top 10 lists. Coming from the home office in the Midwest, they were a hoot.

Well, here goes a Top Five list of open government questions, based on questions from newspapers to the home office of the S.C. Press Association in Columbia.

Number 5: Can minutes be withheld from release to the public until they are approved?
The answer is no. Once records are created, the Freedom of Information Act says they are public records. Most would interpret that to mean once the clerk types them up and transmits them to the council or her superior, they are public. The law does not say that only "approved" records are public. A good idea is to stamp or imprint "draft" on copies of minutes that have not been approved.

Number 4: Does the FOIA apply to committees council may name, even if they are only advisory?
The answer is yes. If council or the mayor names a committee, that committee is subject to the FOIA and must properly give notice of meetings. These meetings must be open to the public. Also, minutes must be kept. If a department head sets up a committee that does not report to the council, that committee is likely not subject to the FOIA.

Number 3: When we receive an FOI request, can the city charge the requestor for the city's attorney to review the documents sought?
The answer is no. The law says, "Fees may not be charged for examination and review to determine if the documents are subject to disclosure." The best practice is to charge the time for the lowest paid employee who is competent to gather the records being sought.

Number 2: How specific must a council be in stating the reason for an executive session?
The law says the presiding officer must state the specific purpose for going into executive session. There are five listed reasons for closing a meeting to the public by going into executive session, which is a closed meeting:

  • Discussion of employment, compensation, promotion or discipline of an employee. You must state which of these is the reason. "Personnel matters" has been ruled not specific enough.
  • Discussion of negotiations related to proposed contracts and the sale and purchase of property.
  • Receipt of legal advice dealing with matters covered by attorney-client privilege, including pending or potential legal claims.
  • Investigative proceedings regarding allegations of criminal misconduct.
  • Discussion of matters relating to industrial recruitment.

And the Number 1 question: Can we take a straw poll in executive session?
The answer is no. Council may not commit the public body to a course of action by polling members in executive session.

Remember that openness and transparency in what councils do is not just a matter of law…it is also something that builds the citizens' trust in your body.