2015-2016 Bill 913: Freedom of Information Act - South Carolina Legislature Online

1 South Carolina General Assembly 2 121st Session, 2015-2016 3 4 S. 913 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senators L. Martin, Davis, Hembree, Fair and Malloy 10 Document Path: l:\s-jud\bills\l. martin\jud0073.rem.docx 11 12 Introduced in the Senate on January 13, 2016 13 Introduced in the House on April 12, 2016 14 Last Amended on May 26, 2016 15 Currently residing in conference committee 16 17 Summary: Freedom of Information Act 18 19 20 HISTORY OF LEGISLATIVE ACTIONS 21 22 Date Body Action Description with journal page number 23 12/2/2015 Senate Prefiled 24 12/2/2015 Senate Referred to Committee on Judiciary 25 12/3/2015 Senate Referred to Subcommittee: Campsen (ch), Allen, Hembree 26 1/4/2016 Senate Referred to Subcommittee: Gregory (ch), Allen, Hembree 27 1/13/2016 Senate Introduced and read first time ( Senate Journalpage 29) 28 1/13/2016 Senate Referred to Committee on Judiciary ( Senate Journalpage 29) 29 3/23/2016 Senate Committee report: Favorable with amendment Judiciary ( Senate Journalpage 9) 30 3/24/2016 Scrivener's error corrected 31 4/5/2016 Senate Committee Amendment Adopted ( Senate Journalpage 33) 32 4/5/2016 Senate Read second time ( Senate Journalpage 33) 33 4/5/2016 Senate Roll call Ayes40 Nays0 ( Senate Journalpage 33) 34 4/6/2016 Scrivener's error corrected 35 4/6/2016 Senate Read third time and sent to House ( Senate Journalpage 14) 36 4/12/2016 House Introduced and read first time ( House Journalpage 12) 37 4/12/2016 House Referred to Committee on Judiciary ( House Journalpage 12) 38 5/24/2016 House Committee report: Favorable with amendment Judiciary ( House Journalpage 7) 39 5/26/2016 House Amended ( House Journalpage 79) 40 5/26/2016 House Requests for debateRep(s). Hill ( House Journalpage 86) 41 5/26/2016 House Read second time ( House Journalpage 87) 42 5/26/2016 House Roll call Yeas93 Nays1 ( House Journalpage 87) 43 5/27/2016 Scrivener's error corrected 44 5/31/2016 House Returned to Senate with amendments ( House Journalpage 63) 45 5/31/2016 Senate Nonconcurrence in House amendment ( Senate Journalpage 22) 46 5/31/2016 House House insists upon amendment and conference committee appointed Reps. Newton, 47 Taylor, Norrell ( House Journalpage 10) 48 6/1/2016 Senate Conference committee appointed Larry Martin, Hembree, Bright Matthews (Senate 49 Journalpage 7) 50 51 View the latest legislative information at the website 52 53 54 VERSIONS OF THIS BILL 1 2 12/2/2015 3 3/23/2016 4 3/24/2016 5 4/5/2016 6 4/6/2016 7 5/24/2016 8 5/26/2016 9 5/27/2016 10 1 Indicates Matter Stricken 2 Indicates New Matter 3 4 AMENDED 5 May 26, 2016 6 7 S. 913 8 9 Introduced by Senators L. Martin, Davis, Hembree, Fair and 10 Malloy 11 12 S. Printed 5/26/16--H. [SEC 5/27/16 11:14 AM] 13 Read the first time April 12, 2016. 14 15

[913-3] 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 30-4-50 OF THE SOUTH CAROLINA 12 CODE OF LAWS, 1976, RELATING TO THE FREEDOM OF 13 INFORMATION ACT, TO INCLUDE LAW ENFORCEMENT 14 VEHICLE MOUNTED VIDEO AND AUDIO RECORDINGS IN 15 THE LIST OF SPECIFIC CATEGORIES OF INFORMATION 16 THAT IS TO BE MADE AVAILABLE TO THE PUBLIC, AND 17 TO PROVIDE THAT LAW ENFORCEMENT MAY APPLY 18 FOR INJUNCTIVE RELIEF FROM THE CIRCUIT COURT IF 19 THERE IS CLEAR AND CONVINCING EVIDENCE OF 20 SPECIFIC HARM FROM THE RELEASE OF THE 21 RECORDING. 22 Amend Title To Conform 23 24 Be it enacted by the General Assembly of the State of South 25 Carolina: 26 27 SECTION 1. Article 5, Chapter 23, Title 1 of the 1976 Code is 28 amended by adding: 29 30 “Section 123665. (A) There is created within the 31 Administrative Law Court the Office of Freedom of Information 32 Act Review. The Chief Judge of the Administrative Law Court 33 shall serve as the Director of the Office of Freedom of Information 34 Act Review. The hearing officers and staff must be appointed, 35 hired, contracted, and supervised by the chief judge of the court, 36 shall exercise their adjudicatory functions, duties, and 37 responsibilities under the auspices of the Administrative Law 38 Court as directed by the chief judge, and shall perform other 39 functions and duties prescribed by the chief judge of the court. All 40 employees of the office shall serve at the discretion of the chief 41 judge. The chief judge is solely responsible for the administration 42 of the office, the assignment of cases, and the administrative duties

[913] 4 1 and responsibilities of the hearing officers and staff. 2 Notwithstanding another provision of law, the chief judge also has 3 the authority to promulgate rules governing practice and 4 procedures before the Office of Freedom of Information Act 5 Review. These rules are subject to review as are the rules of 6 procedure promulgated by the Supreme Court pursuant to Article 7 V of the South Carolina Constitution, 1895. 8 (B) Notwithstanding another provision of law, the hearing 9 officers shall conduct hearings in accordance with Chapter 23, 10 Title 1, the Administrative Procedures Act, and the rules of 11 procedure for the Office of Freedom of Information Act Review, at 12 suitable locations as determined by the chief judge. 13 (C) The hearing officers are bound by the Code of Judicial 14 Conduct, as contained in Rule 501 of the South Carolina Appellate 15 Court Rules. The sole grounds for discipline and sanctions for 16 hearing officers are those contained in the Code of Judicial 17 Conduct in Rule 502, Rule 7 of the South Carolina Appellate Court 18 Rules. The Commission on Judicial Conduct, under the authority 19 of the Supreme Court, shall handle complaints against hearing 20 officers for possible violations of the Code of Judicial Conduct in 21 the same manner as complaints against other judges. 22 Notwithstanding another provision of law, an administrative law 23 judge or hearing officer, and the judge’s or hearing officer’s 24 spouse or guest, may accept an invitation to, and attend, a 25 judicialrelated or barrelated function, or an activity devoted to the 26 improvement of the law, the legal system, or the administration of 27 justice. 28 (D) Appeals from decisions of the hearing officers must be 29 filed with the Administrative Law Court pursuant to the court’s 30 appellate rules of procedure. Recordings of all hearings must be 31 made part of the record on appeal, along with all evidence 32 introduced at hearings, and copies will be provided to parties to 33 those appeals at no charge. The chief judge may not hear appeals 34 from these decisions. 35 (E) A hearing officer shall issue an order containing findings of 36 fact and conclusions of law. If a hearing officer determines that 37 records are not subject to disclosure, the determination constitutes 38 a finding of good faith on the part of the public body or public 39 official, and acts as a complete bar against the award of attorney’s 40 fees or other costs to the prevailing party should the hearing 41 officer’s determination be reversed on appeal. If a hearing officer 42 determines that a record is subject to disclosure, the order must set 43 forth in writing what information must be disclosed and when that

[913] 5 1 disclosure must occur. If the decision of the hearing officer is not 2 timely appealed to the Administrative Law Court, a prevailing 3 party may apply to the Administrative Law Court to enforce the 4 determination. If the decision is appealed to the Administrative 5 Law Court, and the administrative law judge upholds a decision 6 ordering disclosure of information, the administrative law judge 7 may enforce the hearing officer’s determination as the court 8 considers appropriate. If the administrative law judge rules that 9 the determination must be enforced, the court may hold a person, 10 the responsible officer, or the public official of a public body in 11 civil contempt for failing to comply with the provisions of Section 12 30430 or an order of the court relating to Section 30430. The 13 administrative law judge also may award attorney’s fees pursuant 14 to Section 304110. 15 (F) This section does not apply to data from a video or audio 16 recording made by a law enforcement vehicle mounted recording 17 device or dashboard camera.” 18 19 SECTION 2. Section 123500 of the 1976 Code is amended to 20 read: 21 22 “Section 123500. There is created the South Carolina 23 Administrative Law Court, which is an agency and a court of 24 record within the executive branch of the government of this State. 25 The court shall consist of a total of six administrative law judges. 26 The administrative law judges shall be part of the state employees 27 retirement system. For purposes of Chapter 13 of Title 8, the 28 Administrative Law Court is considered part of the unified judicial 29 system.” 30 31 SECTION 3. Section 30430 of the 1976 Code is amended to read: 32 33 “Section 30430. (a)(A)(1) Any A person has a right to inspect 34 or, copy, or receive an electronic transmission of any public record 35 of a public body, except as otherwise provided by Section 30440, 36 in accordance with reasonable rules concerning time and place of 37 access. This right does not extend to individuals serving a 38 sentence of imprisonment in a state or county correctional facility 39 in this State, in another state, or in a federal correctional facility; 40 however, this may not be construed to prevent those individuals 41 from exercising their constitutionally protected rights, including, 42 but not limited to, their right to call for evidence in their favor in a

[913] 6 1 criminal prosecution under the South Carolina Rules of Criminal 2 Procedure. 3 (2) A public body is not required to create an electronic 4 version of a public record when one does not exist to fulfill a 5 records request. 6 (b)(B) The public body may establish and collect fees not to 7 exceed the actual cost of searching for or making copies of records 8 as provided for in this section. The public body may establish and 9 collect reasonable fees not to exceed the actual cost of the search, 10 retrieval, and redaction of records. The public body shall develop 11 a fee schedule to be posted online. The fee for the search, 12 retrieval, or redaction of records shall not exceed the prorated 13 hourly salary of the lowest paid employee who, in the reasonable 14 discretion of the custodian of the records, has the necessary skill 15 and training to perform the request. Fees charged by a public body 16 must be uniform for copies of the same record or document and 17 may not exceed the prevailing commercial rate for the producing 18 of copies. Copy charges may not apply to records that are 19 transmitted in an electronic format. If records are not in electronic 20 format and the public body agrees to produce them in electronic 21 format, the public body may charge for the staff time required to 22 transfer the documents to electronic format. However, members of 23 the General Assembly may receive copies of records or documents 24 at no charge from public bodies when their request relates to their 25 legislative duties. The records must be furnished at the lowest 26 possible cost to the person requesting the records. Records must 27 be provided in a form that is both convenient and practical for use 28 by the person requesting copies of the records concerned, if it is 29 equally convenient for the public body to provide the records in 30 this form. Documents may be furnished when appropriate without 31 charge or at a reduced charge where the agency determines that 32 waiver or reduction of the fee is in the public interest because 33 furnishing the information can be considered as primarily 34 benefiting the general public. Fees may not be charged for 35 examination and review to determine if the documents are subject 36 to disclosure. Nothing in this chapter prevents the custodian of the 37 public records from charging a reasonable hourly rate for making 38 records available to the public nor requiring a reasonable deposit 39 of these costs before searching for or making copies of the records 40 A deposit not to exceed twentyfive percent of the total reasonably 41 anticipated cost for reproduction of the records may be required 42 prior to the public body searching for or making copies of records.

[913] 7 1 (c)(C) Each public body, upon written request for records made 2 under this chapter, shall within fifteen ten days (excepting 3 Saturdays, Sundays, and legal public holidays) of the receipt of 4 any such the request, notify the person making such the request of 5 its determination and the reasons therefor. for it; provided, 6 however, that if the record is more than twentyfour months old at 7 the date the request is made, the public body has twenty days 8 (excepting Saturdays, Sundays, and legal public holidays) of the 9 receipt to make this notification. Such a This determination shall 10 must constitute the final opinion of the public body as to the public 11 availability of the requested public record and, if, however, the 12 determination is not required to include a final decision or express 13 an opinion as to whether specific portions of the documents or 14 information may be subject to redaction according to exemptions 15 provided for by Section 30440 or other state or federal laws. If the 16 request is granted, the record must be furnished or made available 17 for inspection or copying no later than thirty calendar days from 18 the date on which the final determination was provided, unless the 19 records are more than twentyfour months old, in which case the 20 public body has no later than thirtyfive calendar days from the date 21 on which the final determination was provided. If a deposit as 22 provided in subsection (B) is required by the public body, the 23 record must be furnished or made available for inspection or 24 copying no later than thirty calendar days from the date on which 25 the deposit is received, unless the records are more than 26 twentyfour months old, in which case the public body has no later 27 than thirtyfive calendar days from the date on which the deposit 28 was received to fulfill the request. If written notification of the 29 determination of the public body as to the availability of the 30 requested public record is neither mailed, electronically 31 transmitted, nor personally delivered to the person requesting the 32 document within the fifteen days allowed herein, time set forth by 33 this section, the request must be considered approved as to 34 nonexempt records or information. Exemptions from disclosure as 35 set forth in Section 30440 or by other state or federal laws are not 36 waived by the public body’s failure to respond as set forth in this 37 subsection. The various response, determination, and production 38 deadlines provided by this subsection are subject to extension by 39 written mutual agreement of the public body and the requesting 40 party at issue, and this agreement shall not be unreasonably 41 withheld. 42 (d)(D) The following records of a public body must be made 43 available for public inspection and copying during the hours of

[913] 8 1 operations of the public body, unless the record is exempt pursuant 2 to Section 30440 or other state or federal laws, without the 3 requestor being required to make a written request to inspect or 4 copy the records when the requestor appears in person: 5 (1) minutes of the meetings of the public body for the 6 preceding six months; 7 (2) all reports identified in Section 30450(A)(8) for at least 8 the fourteenday period before the current day; and 9 (3) documents identifying persons confined in any a jail, 10 detention center, or prison for the preceding three months; and 11 (4) all documents produced by the public body or its agent 12 that were distributed to or reviewed by a member of the public 13 body during a public meeting for the preceding sixmonth period. 14 (E) A public body that places the records in a form that is both 15 convenient and practical for use on a publicly available Internet 16 website is deemed to be in compliance with the provisions of 17 subsection (D), provided that the public body also shall produce 18 documents pursuant to this section upon request.” 19 20 SECTION 4. Section 304100 of the 1976 Code is amended to 21 read: 22 23 “Section 304100. (a)(A) Any Except for violations arising 24 from Section 30430 or challenges to exemption under Section 25 30440, a citizen of the State may apply to the circuit court for 26 either or both a declaratory judgment and, injunctive relief, or 27 both, to enforce the provisions of this chapter in appropriate cases 28 as long as such if the application is made no later than one year 29 following after the date on which the of the alleged violation 30 occurs or one year after a public vote in public session, whichever 31 comes later. The circuit court shall also have exclusive 32 jurisdiction to hear a challenge to (1) a determination that an 33 organization is not a public body as defined by Section 30420(a), 34 and (2) data from a video or audio recording made by a law 35 enforcement vehicle mounted recording device or dashboard 36 camera. The court may order equitable relief as it considers 37 appropriate, and a violation of this chapter must be considered to 38 be an irreparable injury for which no adequate remedy at law 39 exists. 40 (b)(B) If a person or entity seeking such relief under this section 41 prevails, he or it may be awarded reasonable attorney’s fees and 42 other costs of litigation specific to the request. If such the person 43 or entity prevails in part, the court may in its discretion award him

[913] 9 1 or it reasonable attorney’s fees or an appropriate portion thereof of 2 those attorney’s fees.” 3 4 SECTION 5. Section 304110 of the 1976 Code is amended to 5 read: 6 7 “Section 304110. Any person or group of persons who 8 willfully violates the provisions of this chapter shall be deemed 9 guilty of a misdemeanor and, upon conviction shall be fined not 10 more than one hundred dollars or imprisoned for not more than 11 thirty days for the first offense, shall be fined not more than two 12 hundred dollars or imprisoned for not more than sixty days for the 13 second offense and shall be fined three hundred dollars or 14 imprisoned for not more than ninety days for the third or 15 subsequent offense. 16 (A) The Office of Freedom of Information Act Review has 17 exclusive jurisdiction over all cases, except cases involving data 18 from a video or audio recording made by a law enforcement 19 vehicle mounted recording device or dashboard camera where the 20 circuit court has exclusive jurisdiction, arising from Section 30430 21 or challenges to exemptions under Section 30440 subject only to 22 appellate review consistent with Section 123380. A person 23 aggrieved by a violation of Section 30430 or challenges to 24 exemptions under Section 30440 may file a request for a hearing 25 before the Office of Freedom of Information Act Review within 26 one year after the occurrence of the alleged violation. 27 (B) A citizen of this State may file a request for a hearing with 28 the Office of Freedom of Information Act Review pursuant to 29 Section 123665 in the following instances: 30 (1) to seek specific enforcement of a request made pursuant 31 to Section 30430 when the public body from which the records are 32 requested fails to comply with the time limits provided in Section 33 30430(C), 34 (2) to challenge the reasonableness of a fee assessed 35 pursuant to Section 30430, and 36 (3) to challenge a public body’s determination that the 37 requested information is not a public record under Section 38 30420(c), or that the requested information is exempt from 39 disclosure under Section 30440. 40 (C) A public body may file a request for hearing with the 41 Office of Freedom of Information Act Review pursuant to Section 42 123665 to seek relief from unduly burdensome, overly broad, 43 vague, repetitive, or otherwise improper requests, or where it has

[913] 10 1 received a request but it is unable to make a good faith 2 determination as to whether the information is exempt from 3 disclosure. 4 (D) If a request for disclosure may result in the release of 5 records or information exempt from disclosure under Section 6 30440(a)(1), (2), (4), (5), (9), (14), (15), or (19), a person or entity 7 with a specific interest in the underlying records or information 8 shall have the right to request a hearing with the Office of Freedom 9 of Information Act Review or to intervene in an action previously 10 filed. 11 (E) If a person or entity seeking relief under this section 12 prevails, the hearing officer may order: 13 (1) equitable relief as he considers appropriate, 14 (2) actual or compensatory damages, or 15 (3) reasonable attorney’s fees and other costs of litigation 16 specific to the request, unless otherwise barred by a finding of 17 good faith pursuant to Section 123665(E). 18 (F) If the person or entity prevails in part, he may be awarded 19 reasonable attorney’s fees or other costs of litigation specific to the 20 request, or an appropriate portion thereof, unless otherwise barred. 21 (G) If the hearing officer finds that the public body has 22 arbitrarily and capriciously violated the provisions of this chapter 23 by refusal or delay in disclosing or providing copies of a public 24 record, it may, in addition to actual or compensatory damages or 25 equitable relief, impose a civil fine of five hundred dollars. 26 (H) A determination of the Office of Freedom of Information 27 Act Review may be appealed to the Administrative Law Court or 28 enforced by an administrative law judge pursuant to Section 29 123665. The service of a notice of appeal to the Administrative 30 Law Court acts to automatically stay matters decided in the order, 31 judgment, decree or decision on appeal, and to automatically stay 32 the relief ordered in the appealed order, judgment, or decree or 33 decision. This automatic stay continues in effect until the final 34 judgement or decision of the Administrative Law Court or unless 35 otherwise ordered by the administrative law judge. Further 36 appeals to the Court of Appeals are subject to Section 123610 and 37 the South Carolina Appellate Court Rules.” 38 39 SECTION 6. Section 30250 of the 1976 Code is amended to read: 40 41 “Section 30250. (A) A person or private entity shall not 42 knowingly obtain or use personal information obtained from a 43 state agency, a local government, or other political subdivision of

[913] 11 1 the State for commercial solicitation directed to any person in this 2 State. 3 (B) Each state agency, local government, and political 4 subdivision of the State shall provide a notice to all requestors of 5 records pursuant to this chapter and to all persons who obtain 6 records pursuant to this chapter that obtaining or using public 7 records for commercial solicitation directed to any person in this 8 State is prohibited. 9 (C) All state agencies, local governments, and political 10 subdivisions of the State shall take reasonable measures to ensure 11 that no person or private entity obtains or distributes personal 12 information obtained from a public record for commercial 13 solicitation. 14 (D) A person knowingly violating the provisions of subsection 15 (A) is guilty of a misdemeanor and, upon conviction, must be fined 16 an amount not to exceed five hundred dollars or imprisoned for a 17 term not to exceed one year, or both. 18 (E) This chapter does not apply to a local governmental entity 19 of a subdivision of this state or local government.” 20 21 SECTION 7. This act takes effect on October 1, 2016. 22 XX 23

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