The 2021 letter to a local TV station said the Berkeley County School District couldn't provide a copy of the personnel file for a recently demoted principal because “records exempt from disclosure such as private, personal, and confidential employment records may not be made public under FOIA.”
The letter went on to explain that the “confidential and private nature of the employment records at issue is generally recognized under the FOIA in S.C. Code Ann. § 30-4-40(a)(2), which exempts from disclosure records of a personal nature where public disclosure thereof would constitute an unreasonable invasion of personal privacy.”
It was fairly typical of the brush-offs the news media get from a lot of government agencies, and the sort of answer I’ve objected to for years, because it completely misrepresents what state law says.
But this denial quite possibly set off a chain of events that led to the surprise firing last month of not only the school district’s attorney but also its superintendent.
More significantly, it opened a window into a vital and apparently largely unrecognized point about the privacy exemption.
Up until now, I had always based my argument about what might be the most-abused exemption in South Carolina's Freedom of Information Act on my logical reading of the law itself. But it turns out that South Carolina's courts already have rejected this sort of dodge — not just because of the clear language in the law but also because of their own understanding, which predates the open records law, of what constitutes an unreasonable invasion of privacy.
Personal vs. invasive
First, the chain of events: A month after the school district denied the request by WCSC-TV for the personnel file of former Marrington Middle School for the Arts Principal Dara Harrop, Brandon Gaskins wrote the school board to say he was resigning as the district’s outside attorney, primarily because he found the way the district handled the FOI request “repugnant.”
That letter alerted board members to the denial, and when the members who were then in the minority won the majority in November, one of their first actions was to fire general counsel Tiffany Richardson and replace her with Mr. Gaskins. Eight days later, when the board explained its reason for firing Ms. Richardson and Superintendent Deon Jackson, that FOI denial was a big part of it.
Now, to the law itself. The privacy exemption is pretty clear to anyone who isn’t determined to violate it. It allows (but doesn’t require) governments to withhold from the public "Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy." Importantly, it provides examples of what the Legislature had in mind: “information as to gross receipts contained in applications for business licenses, information relating to public records which include the name, address, and telephone number or other such information of an individual or individuals who are handicapped or disabled when the information is requested for person-to-person commercial solicitation of handicapped persons solely by virtue of their handicap, and any audio recording of the final statements of a dying victim in a call to 911 emergency services." As those examples suggest, the key here isn't "personal" but "unreasonable invasion of privacy" — information that's far more personal than the reason a public employee got demoted.
More important than my interpretation, though, our courts don't buy the argument that, as the district's boilerplate denial language puts it, the “confidential and private nature” of employment records is “generally recognized under the FOIA.”
The best summary I’ve read of S.C. courts’ position on this (and thanks to Mr. Gaskins and the school board for bringing this line of cases to my attention) came in 2004, when the S.C. Court of Appeals rejected a sheriff’s department claim that it could use the privacy exemption to withhold personnel records of four suspended deputies because “the manner in which the employees of the Sheriff’s Department prosecute their duties” is “a large and vital public interest that outweighs their desire to remain out of the public eye.”
The public interest test
The court wrote in Burton v. York County Sheriff’s Department that since the FOI law doesn't define privacy, it had to draw on the S.C. Supreme Court's privacy rulings, and it gave this explanation: The FOI request “did not seek information regarding the off-duty sexual activities of the deputies involved” but rather information that was “focused on the performance of public duties by the Sheriff and his deputies and the response of the Department to allegations of misconduct by the deputies.”
I don’t like quoting the Appeals Court, because it can be overruled by the Supreme Court. But the guts of this decision come straight out of multiple Supreme Court privacy rulings, and it did an excellent job of summarizing more than a half century of legal reasoning by our state's high court.
Which takes us to 1956, and a fascinating little case you should read that seems to be the state Supreme Court’s original explanation of unreasonable invasions of privacy. In Meetze v. Associated Press, a 12-year-old Columbia girl and her husband argued that The Associated Press invaded her privacy when it wrote about the fact that she had just given birth.
Now, I would have assumed this was indeed an unreasonable invasion of privacy, particularly in 1956. But the unanimous court thought otherwise, ruling that there were legitimate reasons for the public to want to know about a 12-year-old giving birth. And given that, the court said: “There are times when one, whether willingly or not, becomes an actor in an occurrence of public or general interest. When this takes place, he emerges from his seclusion and the publication of his connection with such occurrence is not an invasion of his right of privacy.”
And that, subsequent opinions have made clear, is doubly true when that person is on the public payroll.
The new general counsel for the Berkeley County School District clearly knows this. It’s something attorneys for other school districts and state and local government agencies, as well as journalists, ought to study up on.