There are no FOIA exemptions for discovery materials in SC, although there are exemptions that may prohibit disclosure of specific material that is requested under FOIA if it would have been prohibited in discovery.

If you are an attorney who has ever sent a FOIA request to local law enforcement agencies, you may be familiar with a common response that goes something like this: “Your FOIA request is denied because FOIA is not intended to circumvent the discovery rules.”

That’s true. FOIA is not designed to circumvent discovery rules, and that language can be found in several appellate opinions. But that’s not the final answer to the question. FOIA is not intended to circumvent discovery rules, but there is also no “discovery” exemption to FOIA…

As I’ll explain below, a government agency must cite a specific exemption that allows them to deny a FOIA request. If I am engaged in litigation in a criminal case, or fifty criminal cases, that does not mean that government agencies can ignore my FOIA requests with a statement like, “FOIA is not intended to circumvent discovery rules.”

I have the right to request disclosure of information under FOIA. Every citizen does, including every attorney in the state of SC. FOIA’s mandates for disclosure of public materials applies whether the person requesting the information is involved in litigation or not – unless there is a specific exemption that applies.

Are There FOIA Exemptions for Discovery Material in SC?

In Pope v. Wilson, decided June 19, 2019, the SC Court of Appeals addressed the oft-cited yet nonexistent “discovery exemption” to FOIA, finding that “…when a citizen in litigation with a governmental agency directs a FOIA request to that agency, the agency must show the applicability of a specific FOIA exemption to each requested public record.”

That means you cannot say, “discovery!” to get around complying with FOIA.

The discovery rules, civil or criminal, are relevant to FOIA and, although there is no “discovery exemption,” they may provide the underlying basis for an exemption, but you must cite to a specific provision in the FOIA exemptions that allows you to deny a FOIA request.

FOIA Should be Liberally Construed

The SC Supreme Court has said that “FOIA is remedial in nature and should be liberally construed to carry out its purpose.” Evening Post Publ’g. Co. v. Berkeley Cty. Sch. Dist., 392 S.C. 76, 82, 708 S.E.2d 745, 748 (2011).

The SC legislature stated within the FOIA law, in SC Code Section 30-4-15, its intent that the statute be liberally construed:

It is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy. Toward this end, provisions of this chapter must be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.

FOIA Exemptions Must be Narrowly Construed

Just as FOIA’s disclosure provisions must be liberally construed, its exemptions must be narrowly construed. As the Court says in Pope:

In keeping with this construction, “the exemptions in section 30-4-40 are to be narrowly construed so as to fulfill the purpose of FOIA . . . ‘to guarantee the public reasonable access to certain activities of the government.’ To further advance this purpose, the government has the burden of proving that an exemption applies.” Evening Post Publ’g. Co. v. City of N. Charleston, 363 S.C. 452, 457, 611 S.E.2d 496, 499 (2005) (citations omitted) (quoting Fowler v. Beasley, 322 S.C. 463, 468, 472 S.E.2d 630, 633 (1996)); see also Berkeley Cty. Sch. Dist., 392 S.C. at 83, 708 S.E.2d at 748 (“[T]he exemptions should be narrowly construed to not provide a blanket prohibition of disclosure in order to ‘guarantee the public reasonable access to certain activities of the government.'” (emphasis added) (quoting Fowler, 322 S.C. at 468, 472 S.E.2d at 633)). Moreover, “[t]he determination of whether documents or portions thereof are exempt from FOIA must be made on a case-by-case basis.” Berkeley Cty. Sch. Dist., 392 S.C. at 82, 708 S.E.2d at 748.

The government must cite the specific exemption that they are relying upon, they have the burden of proving that the exemption applies, and the determination of whether materials are exempt from FOIA must be made on a case-by-case basis.

30-4-40 FOIA Exemptions for Discovery in SC

SC Code Section 30-4-40 contains many, many exemptions to FOIA, some of which may apply to FOIA requests that overlap with discovery in a criminal case. If you are going to deny a FOIA request because “FOIA is not intended to circumvent discovery,” you must also cite to a specific exemption that applies to the material requested.

For example:

• Trade secrets;
• Personal information as defined in 30-4-40(a)(2);
• Contracts for the sale of real estate before the deed is executed;
• Attorney work product; or
• Any other exemption listed in 30-4-40.

The most relevant exemptions are 30-4-40(a)(3), law enforcement records, and 30-4-40(a)(4), matters specifically exempted from disclosure by law.

Law enforcement records are only exempt under 30-4-40(a)(3) when they:

• would interfere with a prospective law enforcement proceeding;
• would deprive a person of a right to a fair trial or an impartial adjudication;
• would constitute an unreasonable invasion of personal privacy;
• would disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation, by an agency conducting a lawful security intelligence investigation, or information furnished by a confidential source;
• would disclose current techniques and procedures for law enforcement investigations or prosecutions, or would disclose current guidelines for law enforcement investigations or prosecutions if such disclosure would risk circumvention of the law;
• would endanger the life or physical safety of any individual; or
• would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial.

Matters specifically exempted from disclosure by law, 30-4-40(a)(4), might apply to the discovery rules – if the discovery rules in a criminal case prohibit the disclosure of a particular record, then it may also be exempt under the FOIA rules.

This is what is meant by “FOIA is not intended to circumvent the discovery rules.” If Rule 5 says I cannot have the results of a test that you do not intend to use at trial, for example, then I can’t get the results of the test by filing a FOIA request and “circumventing the discovery rules.”

But if you are going to deny a FOIA request, you must identify the specific exemption. If the exemption is 30-4-40(a)(4), you must also identify what discovery rule would prohibit the release of the information requested.

A Denial on the Basis of “FOIA is not Intended to Circumvent Discovery Rules” May Result in You Paying My Client’s Attorney Fees

Unlike some states, SC’s FOIA contains an attorney fees provision. In some cases, this provision for attorney fees is the only thing that forces government agencies to comply with FOIA.

SC Code Section 30-4-100 authorizes a citizen to file suit to enforce the provisions of FOIA:

(A) A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of this chapter in appropriate cases if the application is made no later than one year after the date of the alleged violation or one year after a public vote in public session, whichever comes later. Upon the filing of the request for declaratory judgment or injunctive relief related to provisions of this chapter, the chief administrative judge of the circuit court must schedule an initial hearing within ten days of the service on all parties. If the hearing court is unable to make a final ruling at the initial hearing, the court shall establish a scheduling order to conclude actions brought pursuant to this chapter within six months of initial filing. The court may extend this time period upon a showing of good cause. The court may order equitable relief as it considers appropriate, and a violation of this chapter must be considered to be an irreparable injury for which no adequate remedy at law exists.

And it authorizes the award of attorney fees when a citizen is forced to file suit and prevails:

(B) If a person or entity seeking relief under this section prevails, he may be awarded reasonable attorney’s fees and other costs of litigation specific to the request. If the person or entity prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion of those attorney’s fees.

If you are seeking to compel the government to turn over information:

• Make sure that you have an attorney so that you can collect attorney fees at the end of the litigation;
• Your attorney will make sure that you are entitled to the information you are requesting and that there is no valid exemption;
• If they are not complying, file suit after consulting with your FOIA attorney; and
• Demand that they pay your attorney fees when your lawsuit is successful.

FOIA Lawyers – FOIA Attorneys in Charleston, SC

Charleston, SC criminal defense lawyer Grant B. Smaldone’s law practice is focused on criminal defense cases in SC state and federal courts – FOIA requests and dealing with government agencies is a regular part of our criminal defense practice and independent criminal defense investigations.

If you need to make a FOIA request for public documents or if a SC public body is refusing to provide public records to you at a reasonable cost, call now at (843) 808-2100 or send us an email for a consultation today.