Overview
The Supreme Court of South Carolina deemed a public agency�s FOIA response insufficient to satisfy the 15-day final determination period provided in section 30-4-100 of the SC Code of Laws, because the response included language that tends to indicate a final determination regarding the request had not yet been made.Summary
On November 19, 2012, Edward Sloan, Jr. sent a FOIA request to the South Carolina Department of Revenue seeking procurement documents related to DOR�s retention of a computer security company after a cyber-attack on the agency�s database. DOR responded by letter to Sloan on December 10, 2012, less than 15 days after receiving Sloan�s request, and indicated the following:
The South Carolina Department of Revenue has received your Freedom of Information request dated November 19, 2012. Your request is currently being researched and reviewed. As soon as the information has been compiled, you will be contacted again and the requested information will be sent to you.If we are unable to locate, obtain or release the requested file(s) you will be notified of the decision and the reasons for it. (Emphasis added)
Sloan filed suit on December 21, 2012, seeking declaratory judgment regarding DOR�s FOIA violation, an injunction requiring production of the requested documents, and attorney�s fees and costs. Three weeks later, DOR produced the requested documents and argued for dismissal of the matter on grounds that Sloan�s claims were rendered moot. The trial court agreed and summarily ended the case. The Supreme Court agreed with the trial court�s decision with regard to Sloan�s requests for declaratory and injunctive relief, but disagreed, reversed and remanded the case to the trial court for a determination of reasonable attorney�s fees and costs.
The Court found the wording of the last sentence of DOR�s December 10th response sought to delay DOR�s final determination as to the public availability of the requested documents, and even amounted to a statement of �we will get to it when we get to it.� As such, the response was invalid, and did not satisfy the fifteen-day final determination requirement.
The Court cited its prior decision in Sloan v. Friends of the Hunley, Inc. for the proposition that �When a public body frustrates a citizen�s FOIA request to the extent that the citizen must seek relief in the courts . . . the public body should not be able to preclude prevailing party status . . . by producing the documents after litigation is filed.�
Since DOR�s violation made Sloan the prevailing party in this matter, reasonable attorney�s fees and costs were appropriate. While the Court went out of its way, in both the majority and dissenting opinions, to make clear seemingly unanimously-held concern over the burden placed on public bodies to make a final determination within 15 days of receiving a FOIA request, it nevertheless found DOR in violation of the law as written. As a result, the Court remanded the case to the trial court for a determination of reasonable attorney�s fees.