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S.C. FOIA is better now

Posted: May 18, 2017 1:35 p.m.
Updated: May 19, 2017 1:00 a.m.

The S.C. Freedom of Information Act (FOIA) recently underwent some surgery. Things were a little dicey there for a while, but it’s doing much better now, thank you.

Thank you to the members of the S.C. House and S.C. Senate who made this happen, and to all the citizens who pushed for the changes.

Is the “new” FOIA perfect? No. However, what was already one of the best pieces of FOIA legislation in the nation truly is an even better tool for ensuring open government in our state.

So, what changed? Some things changed to make things easier for the government. Other things changed to make it easier for the public to obtain government information.

For example, public bodies are not required to create electronic versions of records where they don’t already exist. I’m not crazy about that, but I understand. I will say this, though: Government, please do your best to digitize existing records and to create new electronic records from here on forward, if you’re not already doing that. It makes things easier for you and the public.

In the meantime, the full FOIA applies to all records, including electronic ones.

Public bodies may continue to charge for “the actual cost of the search, retrieval and redaction of records.” Fee schedules must be posted online, should not exceed the prorated hourly salary of the lowest paid employee who can perform the request and now must be furnished at the prevailing commercial rate for producing copies. Fees may not be charged for examining and reviewing documents to determine if they’re subject to disclosure. This is all to keep an agency from charging an exorbitant fee in an effort to thwart the requestor from obtaining the records.

A major benefit to the public is a reduction in the number of days a public body must initially respond to a request. In the past, state and local governments had 15 working days to tell the requesting party if they intend to honor a request -- “yes” or “no” -- and, if not, the reasons why. Now, the government will only have 10 working days.

Also, in the past, there was no time limit for fully honoring the request. This meant government agencies could take as much time as they wanted to furnish the requested documents. Under the amended FOIA, “...the record must be furnished or made available for inspection or copying no later than thirty (30) calendar days” from saying “yes.”

If a record is more than 24 months old, the public body has 20 days to give an initial “yes” or “no,” and an additional five days, for a total of 35, to hand over the records they’ve agreed to furnish.

Other changes include:

• In addition to public body meeting minutes from the last six months, certain reports (including law enforcement reports) for the 14 days prior to the day a request is made, and jail booking records from the last three months, public bodies must now be able to produce, on demand, “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 proceeding six-month period.”

• A new statement that public bodies who place the above documents “in a form that is both convenient and practical” on a publicly available website can be considered in compliance with the FOIA as long as they make the actual records available, too.

• Exempting the release of a victim’s dying statements from an otherwise publicly available recording of a 911 call.

• Adding an exemption to law enforcement records whereby information can be redacted which would deprive someone’s right to a fair trial or impartial adjudication. The language of the original six exemptions has been altered as well, but not to the extent to denote major changes in my book.

• Adding that data from video or audio recordings made by a law enforcement vehicle-mounted recording device or dash-cam of an officer-involved death, injury, property damage or use of deadly force falls under the definition of “public information.” However, procedures have also been added through which a law enforcement agency can ask a circuit court to prevent the release of the video or audio recording.

On the negative side, if an individual or organization thinks a public body is in violation of the FOIA, they still have to take the matter to circuit court, which is very cost-prohibitive for most people. Many of us following this had hoped for something like an administrative FOIA court, which would be much cheaper. The good news is, an initial hearing must be set for within 10 days of service of legal papers.

All-in-all, the amendments make our FOIA better. So, thanks, again, to our legislators and here’s hoping Gov. McMaster signs the bill soon.


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