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Citizens toolbox for obtaining public records in South Carolina

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FOIA Signing McMaster (copy) (copy)

Gov. Henry McMaster holds a ceremonial bill signing in May of 2017 for a law reforming South Carolina's Freedom of Information Act. The changes added new deadlines, but also ushered in an era of higher fees charged to citizens seeking public records. File/Staff

The S.C. Freedom of Information Act guarantees citizens access to public records and meetings of government bodies in South Carolina. The aim is to promote transparency in government and allow the public to learn more about the performance of public officials and how taxpayer dollars and other public funds are spent. 

But that doesn't mean that officials are always eager to share those records with you.

So, The Post and Courier has prepared a citizens' toolbox for using the state's sunshine law to get the records and information you need. These tips are drawn from our reporters' extensive experience using the FOIA, as well as helpful guides published by the South Carolina Press Association.


Public records 

The law gives citizens access to a variety of records from government agencies, including reports, audits, budgets, memos, letters and other correspondence. It also covers electronic records such as photographs, spreadsheets, emails and text messages sent from government-issued cell phones. Agencies aren't required to create a record that doesn't already exist, and the law allows some information, such as Social Security numbers and business trade secrets, to be shielded from release. But officials shouldn't use that an excuse to withhold the entire document. They are supposed to redact, or black out, that information and then release the rest of it. 

Changes to the FOIA in 2017 set firmer deadlines for complying with requests for records. Public bodies must respond to a written FOIA request within 10 business days unless the requested record is more than two years old, in which case the deadline is 20 business days. They then have 30 calendar days to turn over those records. If a deposit is required, the clock starts ticking when that money is received. And for records older than 2 years, the deadline is extended to 35 days. 

Though the new deadlines were widely celebrated by open records advocates, lawmakers also snuck in new language that allows public bodies to charge money for searching, retrieving, redacting and copying records. Some agencies will waive those fees upon request, so it's always good to ask. But many will not, and those fees can add up fast. If they come back with what some might consider an excessive fee — we were once quoted $200,000 to get access to a police database — don't hesitate to reach out to the public body and negotiate a little. 

The law requires public bodies to develop and post online a fee schedule for fulfilling FOIA requests. Production fees should be based on the hourly wage of the lowest paid employee who has the skills and training to fulfill the request. 

Here is a sample letter to get you started: 

A few more tips:

  • Ask for the information orally first and see if it can be obtained without a formal written request that can take weeks to fulfill.
  • Be as specific possible about what you are looking for. For example, a request for statements of bank card expenditures from the school board between June 1, 2020, and July 30, 2020, will likely be more successful and less costly than a request for all financial transactions processed by the school district last year.
  • When requesting emails and other correspondence, try to narrow your request as much as possible by listing specific keywords and recipients to search. For example, a request for emails between the state's top two health officials for emails about coronavirus vaccine protocols between February, 25, 2021, and March 12, 2021, will likely get you closer to what you need more cheaply than a request for all emails from the health agency concerning coronavirus. 
  • Initially ask for access to review the records, not specifically for copies of them (unless you can’t physically get to where they are to review them). That way, you might have some leeway to negotiate or limit copying costs, if assessed.
  • Send your request by email to avoid lag time with mail and get the clock ticking sooner. Include read receipts and delivery notifications for your records.

FOIA exempts some records from release, including legal correspondence that would violate attorney-client privilege, industrial development offers under negotiation and certain police records that might thwart a prospective arrest. But it also makes some records, such as jail logs and police incident reports for the previous 14 days, available for public inspection without a written request. A full list of available records and exemptions can be found here


 

Public meetings

The law guarantees citizens access to meetings of public bodies when a simple majority, or quorum, of that body is present. Notice of meetings must be given 24 hours in advance. 

All public business is supposed to be performed in an open and public manner, but the law does provide certain exemptions that allow a public body to close its proceedings. Those include contract negotiations; personnel discussions involving hiring, firing or discipline of an employee; economic development negotiations; and security matters. But all votes resulting from these discussions must take place in an open session, with the public allowed to be present. 

The SC Press Association offers this advice for what reporters should say if officials attempt to close a public meeting or court session. The same statements can also be used by regular citizens who object to closing the proceedings. Pro tip: Many reporters carry these statements around in their wallets so they will be prepared with legal language to register an objection if needed. 

SC Press Association guidance for objecting to closed meetings

 

Background checks 

It's amazing what you can find out about a person these days by simply doing a Google search or scrolling through their Facebook or LinkedIn profiles. But certain information, including criminal histories and civil lawsuits, may be harder to track down, particularly if the incidents go back several years. 

An experienced investigator can plumb some obscure corners of the internet to establish a background profile on someone running for office or applying for a job or a position with an organization. But there are few simple and accessible places the average citizen can turn to as well.

The State Law Enforcement Division allows citizens to run criminal history checks using a portal on its website. The search costs $25, and you will need both the person's name and date of birth for it to work. One caveat is that the search will only pick up arrests made in South Carolina. 

State Law Enforcement Division criminal history site

If you don't mind a little more legwork, much of the same information can be found for free on the South Carolina Judicial Branch website. The site allows searches of court filings by county, so you might have to hop around a bit if the subject of your search has lived or been arrested in different areas of the state. But you will be able to see where and when arrests have occurred, as well as the charges filed, the status of the case and its eventual disposition. Searches for civil cases yield even more, providing downloadable PDF files of the lawsuits and various filings in the case. 

Search page on SC courts website

Reach Glenn Smith at 843-937-5556. Follow him on Twitter @glennsmith5.

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