A $13,000 Lesson

By Tiger Wells, Government Affairs Liaison

The meetings of public bodies must be open to the public. This is a central and typically uncontroversial tenant of the South Carolina Freedom of Information Act. 

As is usually the case with general rules, however, there are exceptions.

For any of six reasons outlined in the Freedom of Information Act, a public body may go into a closed session. Five of these apply to municipal government. Before entering executive session, the public body’s presiding officer must announce the specific purpose of the executive session according to the state’s Freedom of Information Act.

Two years ago, the South Carolina Supreme Court made it clear that the words “proposed contractual matter,” for example, do not satisfy the specific purpose requirement. In Donohue v. City of North Augusta, the North Augusta city council was found to have violated FOIA when it invoked Section 30-4-70(a)(2) of the S.C. Code of Laws and stated that it was going into executive session to discuss a “contractual matter.” 

Now, just two years following that opinion, another public body has been admonished by a lower court for a similar violation. In a recently issued order out of the Newberry County Court of Common Pleas, Newberry County Council was found to have violated FOIA by holding closed meetings without sufficiently announcing the meetings’ specific purpose. 

According to the court’s order, meeting minutes from one of these public meeting indicate that the announced purpose of the closed session was “the receipt of legal advice where the legal advice relates to a pending, threatened, or potential claim or other matters covered by the attorney-client privilege.”

Noting first that this description amounts to a partial reciting of the exact language of Section 30-4-70(a)(2), the court concluded reciting the applicable code section “in such a general way” constituted hiding the specific topic of the executive session. As a result, the public body was found to have denied the public its right to know what was being discussed, and ordered to pay $13,708.63 in fees and costs.

Through the Donohue case, the S.C. Supreme Court pointed to an example of how not to go into executive session, but stopped short of articulating precisely what form the statement of specific purpose should have taken. If this most recent case advances at least to the state Court of Appeals, it will be interesting to see if South Carolina’s appellate courts seize this opportunity to give more concrete guidance.