The SC Freedom of Information Act received its most recent update in 2017. Some of the changes create a meaningful difference in how to handle FOIA requests. Here are some critical considerations from the current version of the law.
Notice on the prohibition of commercial solicitation
The availability of public information can create the temptation to use FOIA requests to obtain sales leads. The law forbids using FOIA this way, according to SC Code Section 30-2-50. The 2017 changes expanded this prohibition to include information received from local governments.
The law requires local governments and political subdivisions to give notice that information obtained through FOIA cannot be used for commercial solicitation. This notice should go into either the initial response or when providing the actual information. Consider this example language: "SC law provides that it is a crime to knowingly obtain or use personal information from a public body for commercial solicitation."
One of the most widely noted changes in 2017 was the reduction in time given for making the initial response to a FOIA request. The initial response to a request states whether the information is available and whether an exemption exists on disclosing the information.
Previously, the deadline was 15 business days, and the General Assembly reduced this to 10. An exception exists for documents more than 24 months old, which has a deadline of 20 business days.
SC Press Association Executive Director Bill Rogers described the shortening of the time limit as something that has had "a positive effect on the public getting information from local governmental bodies."
Rogers noted that the other change in timeframes is more important — the creation of a deadline for providing the documents. This deadline goes into effect on the date of the initial response. If there is a deposit requirement, the clock starts on the date on which the requestor pays a required deposit. The timeframe is 30 calendar days for documents less than 24 months old, and 35 days otherwise.
The Freedom of Information Act requires that certain records to be made immediately available for those who appear in person, without a written request, during business hours. These records include minutes on the meetings of a public body for the previous six months, as well as basic reports on crimes and people being held in jail in the previous three months, such as police incident reports.
The 2017 changes, in SC Code Section 30-4-30(D), added to the list of documents with immediate availability "all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period."
Before 2017, the law simply indicated that a public body must keep its deposit requirements "reasonable" for searching and making copies of records.
SC Code Section 30-4-30(B) now indicates that the deposit can be no more than 25% "of the total reasonably anticipated cost for reproduction." FOIA also requires that the allowable rates for the searching, retrieving and redaction of records cannot exceed the hourly wage of the lowest paid employee on staff who has the skill and training to fulfill the request.
For FOIA compliance, city and town councils must pass ordinances establishing a fee schedule consistent with these requirements.
Applicability of FOIA
The 2017 changes did not change the list of entities subject to FOIA. SC Code Section 30-4-20(a) names municipalities among applicable public bodies. The definition of "public bodies" includes all "committees, subcommittees, advisory committees, and the like of any such body by whatever name known," which means that all municipal boards and commissions are equally subject to FOIA. Rogers noted that this is a meaningful consideration for local governments when they give money to support organizations, because those organizations then may become subject to FOIA.
FOIA also names information exempt from disclosure, including trade secrets, unreasonable invasions of privacy or certain law enforcement records that would interfere with law enforcement proceedings. After 2017, 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, like a business or individual whose information is included in requested records, to request a hearing if it has an interest in exempt information that may be released for a FOIA request.
Learn more in the document "Changes to the Freedom of Information Act from H3352." Find the Public Officials Guide to Compliance with the S.C. Freedom of Information Act online.