I. FREEDOM OF INFORMATION ACT GENERALLY § 30-4-10 through §30-4-165
The Freedom of Information Act (FOIA) requires government subdivisions, such as counties and municipalities, to provide access to government documents.
SECTION 30-4-15. Findings and purpose.
The General Assembly finds that 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.
Your court files are public records under this Act (§30-4-20). As such, anyone who makes a proper request to view or copy court files should be allowed to do so (§ 30-4-30). Exceptions to this general rule are explained below.
A. TIME TO RESPOND TO FOIA REQUESTS § 30-4-30(c)
Under this Act, when a written request is made, the entity has 15 days to respond (excepting Saturdays, Sundays and official public holidays). You have the right to require that requests be made in writing. You also have the right to charge a reasonable fee for research time and copies of documents requested. The statute provides that the fee should be the “actual” cost. It is important to be consistent when it comes to access to your records, charging a fee for copies, and requiring that requests be made in writing. Failure to comply with the FOIA is a criminal offense, punishable by fine and imprisonment. (§ 30-4-110).
When a public body does not render a final opinion within the fifteen-day determination period, FOIA provides for both declaratory and injunctive relief. FOIA also provides for attorney's fees and costs to the prevailing party. Sloan v. South Carolina Dept. of Revenue, 409 S.C. 551, 762 S.E.2d 687 (2014).
B. EXEMPTIONS, § 30-4-40 PROVIDES A LIST OF EXEMPTIONS TO DISCLOSURE UNDER FOIA
Documents such as arrest warrants, search warrants, and bench warrants are also considered public information, subject to the stated limitations.
a. Arrest 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.
b. 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.
c. 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.
While many court documents contain personal information, the 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”.
a. 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.
b. 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 Laws refers to “personal identifying information” (PIN) which is also protected from dissemination by government agencies, such as the courts. §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:
c. Expunged Records
When a request is made pursuant to FOIA, or otherwise, 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 or a potential employer, or government agency.