I. Freedom of Information Act, S.C. Code §§ 30-4-10 through 30-4-165
South Carolina, like most states, has adopted a Freedom of Information Act (FOIA) that requires government subdivisions that are defined as public bodies, such as counties and municipalities, to provide access to government documents. However, it has never been determined that South Carolina’s FOIA applies to the Judicial Branch or to court records:
However, it is not at all clear that the court system is included within the reach of FOIA. The definition of a “public body” in FOIA does not expressly mention the courts or any part thereof. See. § 30-4-20(a). Moreover, courts in other jurisdictions have concluded that the judicial branch is not a “public body” for purposes of FOIA.
S.C. Atty. Gen. Op. No. 9804, 2014 WL 3965783 (2014).
II. Constitutional Right of Public to Access Court RecordsDespite FOIA’s inapplicability to court records, the state and federal constitutions have been held to give the public a right to inspect and copy court records:
Judicial proceedings and court records are presumptively open to the public under the common law, the First Amendment of the federal constitution, and the state constitution.”
Ex parte Capital U-Drive-It, Inc., 369 S.C. 1 (2006) (emphasis added).
It is important to note that court records are available to the public. Therefore, a person requesting court records need not be a party to the case or a party’s attorney.
III. Using FOIA as a GuidelineThough FOIA is inapplicable to requests for court records, it can be used as a guideline in responding to such requests because it sets forth useful timelines that can be used as a guide. FOIA timelines may be particularly useful to follow if you receive requests for large volume of court records of court records, or for records that might contain documents that may be exempt from disclosure (see Section IV, below).
A. TIME TO RESPOND TO REQUESTS FOR COURT RECORDS
If a requestor appears in person and is seeking copy or inspection of a single document or file, the requestor should generally be allowed to do so at that time, staff availability permitting. However, should the requestor seek a larger number of files or documents, or if there is not staff available to offer assistance, FOIA provides a useful timeline within which responses should be provided by the court.
Under FOIA, when a written request is made, the entity shall within 10 days (excepting Saturdays, Sundays and official public holidays) of the receipt of the request, notify the person making the request of its determination and the reasons for it.
However, if the record is more than twenty-four months old at the date the request is made, the public body has 20 days (excluding weekends and legal holidays) to make this notification.
If the request is granted, the record must be furnished or made available for inspection or copying no later than 30 calendar days from the date the final determination was provided, unless the records are more than twenty-four months old, in which case the public body has no longer than 35 calendar days from the date the final determination was provided.
If a financial deposit is required by the public body, the record must be furnished or made available for inspection or copying no later than 30 calendar days from the date the deposit is received, unless the records are more than twenty-four months old, in which case the public body has no longer than 35 calendar days from the date the deposit was received. The full amount of the total cost must be paid at the time of the production of the request.
You have the right to require that requests be made in writing.
B. COSTS
The public body may establish and collect fees when fulfilling records requests. The public body may establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. The public body shall develop a fee schedule to be posted online. The fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request.
Fees charged by a public body must be uniform for copies of the same record or document and may not exceed the prevailing commercial rate for the producing of copies. Copy charges may not apply to records that are transmitted in an electronic format. If records are not in electronic format and the public body agrees to produce them in electronic format, the public body may charge for the staff time required to transfer the documents to electronic format.
However, members of the General Assembly may receive copies of records or documents at no charge from public bodies when their request relates to their legislative duties. The records must be furnished at the lowest possible cost to the person requesting the records. Records must be provided in a form that is both convenient and practical for use by the person requesting copies of the records concerned, if it is equally convenient for the public body to provide the records in this form.
Documents may be furnished when appropriate without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. Fees may not be charged for examination and review to determine if the documents are subject to disclosure. A deposit not to exceed twenty-five percent of the total reasonably anticipated cost for reproduction of the records may be required prior to the public body searching for or making copies of records.
IV. Exemptions to Disclosure
A. WarrantsArrest Warrants: An Attorney General Opinion dated July 12, 1983, states that “[a]n arrest warrant becomes a matter of public record upon its being signed and served on the person charged under the warrant.” However, the document should remain non-disclosable prior to service.
Bench Warrants: An opinion of the Attorney General, dated August 1, 1989, indicated that search warrants and bench warrants would generally be handled in the same manner as arrest warrants. However, if the bench warrant was issued in open court, the Opinion concluded that there would be no reason to deny access to the document prior to service upon the individual.
Search Warrants: The following excerpt from the 1989 Attorney General Opinion mentioned above is intended to address both search warrants which have and have not been served. The Opinion concluded that “the [FOIA] would legally permit a public official to refrain from disclosing criminal investigatory records such as search warrants…[s]uch decision…must be made by the custodian of the record and must be based ‘upon evaluation of the particular document or material’…[m]oreover, the custodian is free to disclose search warrants to the public if he or she deems it would not harm law enforcement or a criminal investigation. Law enforcement officials would be in the best position to assess any harm to an investigation.”
The 1989 Opinion of the Attorney General addressing the release of search warrants pursuant to an FOI request states that “decision[s] regarding disclosure must be made by the custodian of the record and must be based ‘upon evaluation of the particular document or material’. . .the custodian is free to disclose search warrants to the public if he or she deems it would not harm law enforcement or a criminal investigation. Law enforcement officials would be in the best position to assess any harm to an investigation.” Based on this statement, if the custodian of the record, in this case the clerk of court, has any concerns related to releasing law enforcement records, he or she may first contact law enforcement and inquire of them as to whether release of the document would damage an ongoing investigation. Furthermore, while the above statement specifically mentions search warrants, it would apply to other potentially sensitive law enforcement records.
B. INFORMATION OF A PERSONAL NATURE § 30-4-40(a)(2)While many court documents contain personal information, FOIA provides that “information of a personal nature” may be exempted from disclosure if disclosure “would constitute unreasonable invasion of personal privacy.”
Certain information contained in your court files, such as an individual’s social security number (SSN), should be redacted prior to distribution in order to protect the individual’s identity and privacy. The Federal Privacy Act of 1974 (FPA), (5 U.S.C. 552), makes it unlawful for a local agency maintaining a system of records to disclose SSNs unless certain circumstances exist. The FPA, 5 U.S.C. 552(i) provides criminal penalties for willful disclosure of "individually identifiable information”.
Social Security Numbers
An Opinion of the SC Attorney General, dated October 4, 1995, addresses the dissemination of SSNs which appear in documents in the office of the Clerk of Court. The Opinion states that “to disclose an individual’s [SSN] could easily constitute an unreasonable invasion of the individual’s personal privacy under our state’s [FOIA], as well as constituting a violation of the [FPA] and the constitutionally protected right to privacy.” “[S]uch information could easily be said to be exempt from disclosure under §30-4-40(a)(2). Furthermore, “… the [FPA]…would protect the information, thus implicating §30-4-40(a)(4) of the [FOIA].” Additionally, Title 30, Chapter 2, of the SC Code of Laws, addresses the dissemination of SSNs. §30-2-310(A) prohibits the intentional communication of 6 or more digits of an individual’s SSN to the general public.
Personal Identifying Information
SSNs are not the only information which is protected under our laws. Title 30, Chapters 2 & 4, of the SC Code of Law refers to “personal identifying information” (PIN) which is also protected from dissemination by government agencies, such as the courts. S.C. Code of Law §16-13-510(D) contains the following definition of personal identifying information, which may be useful in determining what information is, or is not, appropriate for release:
"Personal identifying information" includes, but is not limited to:
(1) social security numbers;Expunged Records
(2) driver's license numbers or state identification card numbers issued instead of a driver's license;
(3) checking account numbers;
(4) savings account numbers;
(5) credit card numbers;
(6) debit card numbers;
(7) personal identification (PIN) numbers;
(8) electronic identification numbers;
(9) digital signatures;
(10) dates of birth;
(11) current or former names, including first and last names, middle and last names, or first, middle, and last names, but only when the names are used in combination with, and linked to, other identifying information provided in this section;
(12) current or former addresses, but only when the addresses are used in combination with, and linked to, other identifying information provided in this section; or
(13) other numbers, passwords, or information which may be used to access a person's financial resources, numbers, or information issued by a governmental or regulatory entity that uniquely will identify an individual or an individual's financial resources.
When a request is made for information concerning a criminal charge which has been expunged, it is never appropriate to provide any information, including that the offense was expunged. The court should simply tell the requestor that they have no record of the requested information. It makes no difference if the requestor is a citizen, potential employer, or government agency.
V. BULK DISTRIBUTION OF AND COMPILED INFORMATION FROM JUDICIAL RECORDS – RULE 610, SCACR
Definitions:
- Bulk distribution is defined as the distribution of all, or a significant subset, of the information in judicial records, as is and without modification or compilation.
- Compiled information is defined as information that is derived from the selection, aggregation or reformation of the information from more than one individual judicial record.
- Judicial records shall include all records maintained by any court, commission, board, committee, office or other entity within the South Carolina Judicial Department, regardless of whether that entity is funded in whole or part by state or local funds.
The South Carolina Judicial Branch (SCJB) shall not provide bulk distribution of or compiled information from judicial records where those records are sought for any commercial purpose.
Unless authorized by the Office of Court Administration, a bulk distribution of judicial records will not be made and compiled information from judicial records will not be provided. This restriction does not apply to compiled information that may be contained in statistical or other reports that have been previously released to the general public or compiled information that can be obtained by a person using the search functions available to the public on websites maintained by the SCJD or any court of this state.
The Office of Court Administration may authorize bulk distribution of or compiled information from judicial records if it determines, in its discretion, that the resources are available to compile the information; the substantial public interest will be served through significant scholarly, governmental, journalistic, research, evaluation, or statistical purposes; and the identity of specific individuals is ancillary to the request.
A party may make a request for bulk distribution of and compiled information from judicial records by completing Form 610: Request for Bulk Distribution of and Complied Information from Judicial Record that is available at https://www.sccourts.org/Rule610Request/index.cfm