At some point, most of us want to know what our government is doing behind closed doors – they are representing our interests, right?
You may need documents for a pending lawsuit or to resolve a dispute, or you may just be curious about how your tax money is being spent – it doesn’t matter. You don’t have to explain yourself or give a reason why you want to see public records – it’s your right as a citizen.
What’s the purpose of SC’s FOIA law? How does FOIA work, and how do I go about getting public records? What if they refuse to turn over the records?
Below is an overview of South Carolina’s Freedom of Information laws that can help you to navigate the process, get the information you need from government agencies, and force them to comply when they violate SC’s FOIA law.
Why Do We Have Freedom of Information Laws?
FOIA is necessary because, without it, government officials can and will stonewall the public, ensuring that the ordinary public has no idea what our officials are doing once they are elected.
Government agencies will not release documents and records if they are not forced to release them – they don’t want to be bothered with the time and expense, and they don’t want to be caught doing something they shouldn’t be doing…
Although every state now has a FOIA law, it began with the federal government, after the impeachment of President Nixon and in response to growing concern over secret government programs like MK-Ultra.
What is MK-Ultra?
The CIA began project MK-Ultra in 1953 – the U.S. feared that the Soviets, North Koreans, and Chinese were using mind-control techniques to brainwash POWs in Korea, so they began experimenting with psychedelic drugs including LSD, paralytics, and electro-shock therapy to determine their potential for brainwashing, interrogation, and torture.
Many of their subjects did not know they were being experimented on – including during “Operation Midnight Climax,” where CIA agents used prostitutes to lure men to “safe houses,” where they were given LSD and became unwitting test subjects.
The CIA did not keep many records over the 20 years that they continued experiments under the MK-Ultra program, and, when the program was ended in 1973, many of the existing records were destroyed by the agency.
The federal government passed the first FOIA law in 1966, but it had no teeth and was largely ineffective until the Privacy Act Amendments were passed in 1974 –President Ford vetoed the law, but Congress overrode the veto and passed the law anyway. The individual states eventually passed their own FOIA laws that vary from state to state.
How Do I Make a FOIA Request?
In South Carolina, in most cases, you can make a FOIA request simply by sending a letter to the agency that details what you are asking for, that you are asking for it pursuant to FOIA, and providing a reasonable deadline for the agency to respond.
The National Freedom of Information Coalition (NFOIC) provides information on FOIA laws in each state and a sample FOIA request that you can modify and send out.
In many cases, a FOIA request does not need to be adversarial – most agencies have internal policies for how they handle FOIA requests, and they will provide public documents upon request without too much hassle.
By calling or emailing the agency before sending your request, you can get their input on how to word your request – a request that is too broad may result in a denial or excessive fees to locate and copy records that you don’t really need…
Some agencies have their own forms that they want you to use, and they may have a preferred method of communication – the forms may be emailed, faxed, or filled out on their website, while others may require you to mail the form to them. In other cases, you may be able to walk into the agency, get the records, and leave with them without waiting.
Most agencies will charge some type of fee to respond to FOIA requests, and they might require that the fees accompany your request – the agency can tell you over the phone what the fees will be and how they should be paid.
What Does FOIA Cover in SC?
SC’s Freedom of Information Act allows any person to “inspect or copy any public record of a public body,” including financial records, minutes from meetings, and arrest records.
Under SC’s FOIA, you don’t have to send a written FOIA request if you are seeking records of meeting minutes from the last six months, recent incident reports, or recent arrest records – you only need to show up in person, during business hours, and make the request.
Note that for arrest records and, in some jurisdictions, incident reports, municipalities have made the information available online – you don’t even have to ask for it anymore, just search their websites.
How Do I File a FOIA Lawsuit?
Get an attorney who is familiar with SC’s Freedom of Information Act and how to handle a FOIA lawsuit.
SC’s FOIA law is not as clear-cut as you may think. There are specific types of information that are covered by FOIA, and other types of information that are not. There are many, many exceptions to the FOIA law, and caselaw interpreting when agencies must disclose and when they can refuse.
Once your FOIA attorney has reviewed your documents and decided whether the agency is in default, they will file a declaratory judgment action in the Court of Common Pleas and ask the Court to order the agency to produce the records.
Do not ask for a truckload of information that you don’t really need or want – although the fees and costs must be reasonable, there will be fees and costs. The more information you are requesting, the more the agency will charge you.
On the other hand, if the agency is asking for fees and costs that are clearly excessive and designed to discourage FOIA requests (yes, this happens), you are justified in filing suit to force them to release the documents at a reasonable cost.
When your FOIA request is denied or ignored, contact the agency and politely ask them why – do the records exist? Would a change in the wording of your request satisfy their concerns? Follow up with polite written communications that confirm their denial and that confirm you are being reasonable.
Whether it is through mailed letters or email, create a paper trail and document everything. But, above all, be reasonable in your requests and your communications with the agency.
How Much Does a Freedom of Information Lawyer Cost?
If you have made a reasonable request for information that is covered by FOIA and that is not excluded by one of FOIA’s exceptions, and you must file a FOIA lawsuit to force them to turn over the information, the Court will order the agency to pay your attorney fees.
Often, the agency will refuse to turn over the information, digging in their heels until you retain an attorney and file suit. Once you file suit, they then compile the information and release it to your attorney. You win! But, you’re stuck with attorney fees now, right?
No – we will take the information from the agency, turn it over to you, and then immediately file a motion asking the court to order them to pay your attorney fees.
For example, in the recent case of Horton v. Jasper County School District, the school district refused to turn over public records. They answered the resulting lawsuit and claimed they were not required to provide the documents. They then provided some of the documents, but the FOIA attorney continued the lawsuit, pressing for the release of all the documents.
The circuit court judge ordered the production of all the documents and ordered the school district to pay the plaintiff’s court costs and attorney fees at the rate of $100 an hour.
On appeal, the SC Supreme Court found that there was no basis for the circuit court to order attorney fees at the low rate of $100 an hour when the attorneys had presented affidavits that supported attorney fees at the rates of $250 and $295 an hour, respectively for each attorney – the Court then ordered the school district to turn over the documents and pay $35,611.50 in attorney fees and $1096.56 in court costs…
SC Freedom of Information Act (FOIA) Lawsuits
If you need help filing a FOIA request for information, or if a government agency is refusing to turn over records and you are ready to file a FOIA lawsuit, the FOIA attorneys at Coastal Law can help.
Contact us for a free case evaluation by calling now at (843) 488-5000 or by filling out our online form.