Keep up with FOIA changes

There are several new elements in the S.C. Freedom of Information Act resulting from the legislation passed in May of 2017 that affects public bodies' allowable timeline to respond to a request, fees and the ability to seek outside judicial help on difficult decisions.

Here are just a few changes that cities and towns should keep in mind:

Is my city required to generate records in a digital format, if that is how the requestor asks for it?
No. A public body is not required to create an electronic version of a public record where one does not exist. However, the law says an individual may request and receive a public record electronically.

What is the most the city may charge as a deposit?
No more than 25 percent of the anticipated cost for reproduction of the records. The law requires that any balance be paid at the time the public body produces the records.

The law also

  • Requires public bodies to develop a schedule of the fees for activities such as searching, retrieving, redacting and copying records.
  • Limits the copy rate to the prevailing commercial rate for producing copies. The legislative intent was that the public body would not charge more than its actual costs, treating the rate charged by local commercial copiers (i.e. Kinko's, etc.) as a gauge for capping fees.
  • Limits the rates charged for searching, retrieving and redacting records to the hourly wage of the public body's lowest paid employee with the skills to fulfill the request.

I've heard cities have less time to respond to a FOIA request. Is that true?
Yes. A public body must now respond to a written FOIA records request in 10 business days instead of 15. A "response" communicates whether the public body will comply with the FOIA request or claim an exemption. The timeframe is 20 business days if a requested record is more than 24 months old. The public body is not required to decide how a record may need to be redacted within this response period.

Then what?
The public body must produce the requested records within 30 calendar days from the date it responds to say the request will be fulfilled or within 30 days of receiving any deposit. That deadline is 35 days for records more than 24 months old.

Does the law offer any new guidance for public bodies?
Yes. A public body may request a hearing with the circuit court for relief from unduly broad, burdensome, vague, repetitive or improper requests.

What if my city is faced with a tough disclosure decision?
The law now allows a public body to request a hearing when it is unable to make a good faith determination about whether to exempt information from disclosure. It also allows a third party, such as a private business or individual whose information is included in requested records, to request a hearing if it has an interest in exempt information or records that may be released as part of a FOIA request.