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Keeping Up to Date with FOIA

​The South Carolina Freedom of Information Act has received periodic updates, most recently in May 2017. Here are some key aspects of the law which came out of the most recent amendment.

Less time to respond
Public bodies have 10 business days to give the initial response to a request. Before 2017, the deadline was 15 days. The initial response doesn't have to produce the information, but instead simply needs to indicate whether the public body will fulfill the request. If the record requested is more than 24 months old, the deadline is 20 business days.

After an initial response that it will provide the information, the public body has 30 calendar days to do so. If the fulfillment requires a deposit from the person or entity making the request, the 30 calendar days begin from the time of this payment. Records that are at least 24 months old have a longer deadline: 35 calendar days.

Keep in mind that some records must be provided on request during business hours with no written request or waiting period: meeting minutes, meeting packets, police incident reports and information on who is being held in jail.

Charging for records
Public bodies do not have to charge for FOIA responses. They must, however, develop a fee schedule for the actions that go into providing a response, like searching, retrieving, redacting and copying records. Charging for time spent redacting is a new addition to the 2017 law.

Although fees need to be uniform, public bodies with fee schedules can provide documents for free or for a reduced fee when the body determines that the furnishing of the information is in the interest of the general public. Providing information to news media can be an example.

Several restrictions exist for charges. The bodies cannot charge rates greater than the hourly wage of the lowest-paid employee who has the skills needed to fulfill the request. For copying, they cannot charge more than the prevailing commercial rate for producing copies.

Electronic records
The law states that those making requests have the right to receive public records electronically. However, public bodies are not required to create an electronic version of a public record if one does not exist or modify the electronic record to a format preferred
by the requestor.

Improper requests and commercial solicitation
Usually, FOIA lawsuits involve an individual who made a request suing a public body for denying the release of information. However, the law also allows the public body to go to court "to seek relief from unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests."

Also, the law now establishes that knowingly obtaining personal information from the state or any local government for the purpose of commercial solicitation is a crime. It further states that public bodies "shall take reasonable measures" to keep this from happening and must provide notice in their FOIA responses that state law criminalizes this activity.