Could South Carolina bar public bodies from giving records to private firms for commercial solicitation?

Plain-English summary

In an informal 2000 opinion, South Carolina's deputy attorney general considered a proposed bill that would forbid a public body to provide public records to a private person or entity for commercial solicitation directed to state residents. He concluded that the proposal restricted access to government information, rather than protected speech, and was entitled to a presumption of constitutionality.

The opinion compared the bill with existing limits on commercial use of information in police incident reports and employee salary schedules, and with a South Carolina Supreme Court decision upholding a restriction on accident-report disclosure for solicitation. It also discussed concurring opinions in a U.S. Supreme Court case involving access to arrestees' addresses. The letter emphasized that only courts could declare a legislative act unconstitutional. It did not establish that the proposed bill became law.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the opinion say House Bill 4534 was already law? A: No. It discussed the bill as a proposed amendment that would add a new public-records restriction.

Q: Why did the author think the bill could withstand a free-speech challenge? A: He read it as restricting access to government records for solicitation, not restricting a person's ability to speak or solicit by other means.

Q: Did the opinion say public bodies could deny all records to businesses? A: No. The bill described in the opinion targeted providing a public record for commercial solicitation directed to a South Carolina resident. The letter did not analyze broader business access to records.

Background and legal framework

Representative John Hawkins requested a prompt constitutional review of House Bill 4534. The author applied a presumption that legislation is constitutional, compared the proposed language with §30-4-50(B), and relied on Walker v. South Carolina Dept. of Highways and Public Transportation for the distinction between access to government information and commercial speech. He described the federal arrestee-address case as decided on procedural grounds, with concurring Justices discussing the merits. The letter was expressly informal.

Citations and references

• H.4534: proposed restriction quoted in the opinion.
• §30-4-50(B) and §56-5-1275: existing restrictions discussed in the opinion.
• Walker v. South Carolina Dept. of Highways and Public Transportation: state decision discussed in the opinion.

Official title

As to the constitutionality of House Bill 4534, an act that would prohibit a public body from selling, providing or furnishing to a private person or entity a public record for use in a commercial solicitation.

Requester

The Honorable John D. Hawkins, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-18-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00april-18-hawkins.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

April 18, 2000

The Honorable John D. Hawkins
Member, House of Representatives
314-A Blatt Building
Columbia, South Carolina 29211

RE:

Informal Opinion

Dear Representative Hawkins:
By your letter of April 17, 2000, you have asked for this Office's opinion as to the constitutionality of House Bill 4534, an act that would prohibit a public body from selling, providing or furnishing to a private person or entity a public record for use in a commercial solicitation. Due to the pressing and urgent nature of your request, I am constrained to answer your question as succinctly as possible though there are undoubtedly other cases which could be addressed by an opinion of this Office.

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The bill bearing House Number 4534 would amend the 1976 Code of Laws by adding §30-4-170 which would provide as follows: Without limiting the meaning of other sections of this chapter, a public body may not sell, provide, or furnish to a private person or entity a public record, for the use by that private person or entity for commercial solicitation which is directed to a resident of this State. In considering the constitutionality of an act of the General Assembly, it is presumed that the act is constitutional in all respects. Moreover, such an act will not be considered void unless its unconstitutionality is clear beyond any reasonable doubt. Thomas v. Macklen, 186 S.C. 290, 2 S.E.2d 777 (1939). All doubts of constitutionality are generally resolved in favor of constitutionality. While this Office may comment upon potential constitutional problems, it is solely within the province of the courts of this State to declare an act unconstitutional. ·

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The Honorable John D. Hawkins
Page 2
April 18, 2000

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First, it is noteworthy that the prohibition contained in H.4534 is quite similar to language that is already present in the South Carolina Freedom of Information Act. In relevant part, §30-4-50(B) provides, "[ n Jo information contained in a police incident report or in an employee salary schedule revealed in response to a request pursuant to this chapter may be utilized for commercial solicitation." In an Attorney General's Opinion dated September 22, 1995, this Office found no constitutional issue with §30-4-50(B) and concluded that "[a]s 'police incident reports' fire incident reports would thus be subject to the prohibitions ... such that information contained therein may not be used for commercial solicitation." Furthermore, the case of Walker v. South Carolina Dept. of Highways and Public Transportation, 320 S.C. 496, 466 S.E.2d 346 (1995) supports the position that restrictions such as those found in H.4534 may be upheld since they do not restrict protected speech. In Walker, an attorney challenged the constitutionality of S.C. Code Ann. §56-5-1275, which prohibits the disclosure of motor vehicle accident reports if sought for commercial solicitation. In affirming the circuit court's ruling, the South Carolina Supreme Court held that §56-5-1275 did not abridge the attorney's commercial free-speech rights since the statute did not prohibit attorneys from making direct mailing or from learning the identities of accident victims in a variety of alternate ways. Similarly, H.4534 does not prohibit commercial free- speech, it merely restricts access to government information. Finally, in the recent case of Los Angeles Police Dept. v. United Reporting Pub.
~' 120 S.Ct. 483 ( 1999), the Supreme Court considered the constitutionality of a statute that prohibited the disclosure of arrestees' addresses by law enforcement agencies to persons who intended to use the addresses to sell a product or service. The case was ultimately decided on procedural grounds, but six Justices in two concurring opinions stated the statute could be upheld on its merits because it served only "as a restriction on access to government information, not as a restriction on protected speech." 120 S.Ct. At 490 (Ginsburg, J., concurring). See also. id. At 489 ("the fact that it is formally nothing but a restriction upon access to government information is determinative.") (Scalia, J., concurring). Based on the foregoing, it is this opinion of this Office that H.4534 limits access to government information, but does not abridge freedom of speech. Thus, it is entitled to at least a presumption of constitutionality, especially since similar restrictions have consistently been upheld on the merits.

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The Honorable John D. Hawkins
Page 3
April 18, 2000

This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With best personal regards, I am Sincerely yours,

Zeb C. Williams, III
Deputy Attorney General

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