It's a basic and typically uncontroversial tenet of the South Carolina Freedom of Information Act: The meetings of public bodies must be open to the public.
But as usual, there are exceptions. Knowing what they are and adhering to the letter and the spirit of the law can help a city or town avoid legal challenges and maintain public trust.
Six reasons for entering an executive session are outlined in the Freedom of Information Act. Five of these apply to municipal government.
For instance, a city council may go into closed session when discussing an employee's work status, appointment, compensation, promotion, demotion, discipline or release. This applies not only to an employee but also to a student or a person the public body regulates or appoints. Another type of circumstance that would allow a public body to go into closed session is discussions that relate to security personnel or devices.
Before going into executive session, the public body's presiding officer must announce the specific purpose of the executive session according to the state's Freedom of Information Act.
However, two years ago, the South Carolina Supreme Court made it clear that the words "proposed contractual matter" do not satisfy the specific purpose requirement. In Donohue v. City of North Augusta, the North Augusta City Council was found to have violated FOIA when it invoked Section 30-4-70(a)(2) of the S.C. Code of Laws and stated that it was going into executive session to discuss a "contractual matter."
Now, just two years after the opinion, another public body has been admonished by a lower court for a similar violation. In a recently issued order out of the Newberry County Court of Common Pleas, Newberry County Council was found to have violated FOIA by holding closed meetings without sufficiently announcing the meetings' specific purpose.
According to the court's order, meeting minutes from one of these public meetings indicate that the announced purpose of the closed session was "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."
Noting first that this description amounts to a partial reciting of the exact language of Section 30-4-70(a)(2), the court concluded that reciting the applicable code section "in such a general way" constituted hiding the specific topic of the executive session. As a result, the court found the County Council denied the public its right to know what its members were discussing, and ordered $13,708 be paid in fees and costs.
Through Donohue, the S.C. Supreme Court pointed to an example of how not to go into executive session but stopped short of articulating precisely what form the statement of specific purpose should have taken.
"If this most recent case advances at least to the state Court of Appeals, it will be interesting to see if South Carolina's appellate courts seize this opportunity to give more concrete guidance," said Tiger Wells, government affairs liaison for the Municipal Association.