Could someone obtain South Carolina police certification test questions through a FOIA request?

Plain-English summary

In 2019, the South Carolina Criminal Justice Academy asked whether it had to release reusable questions from a secured test bank after a FOIA request for basic law enforcement training tests. The Attorney General concluded the questions were "scholastic records" and therefore outside the Act's definition of a public record. On that reading, the Academy did not have to disclose them.

The office focused on what the questions did: they tested whether candidates had learned the Academy's course material and qualified for certification. It said a record did not become scholastic merely because a school held it, and the statutory exclusion did not require a particular kind of school to create the record. The answer was limited to the test questions described in the request.

Currency note

This opinion was issued in 2019. 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 FOIA require release of the Academy's reusable certification exam questions?
A: The AG said no. It characterized the questions as scholastic records excluded from the public-record definition.

Q: Was the Academy exempt from FOIA because it was a school?
A: No. The opinion assumed it was a public body and examined the nature of the requested test questions, rather than exempting all Academy records.

Q: Were all records created by a school treated as scholastic records?
A: No. The opinion distinguished a test of students' learning from administrative or employment records and cited prior opinions rejecting that broad approach.

Background and statutory framework

The City of North Charleston had requested copies of the Academy's basic training written tests. The opinion applied the public-record definition's express treatment of scholastic records and drew guidance from a state Supreme Court decision interpreting another term in the same statutory sentence.

Citations and references

• S.C. Code Ann. § 30-4-20(C): FOIA definition disputed in the request.
• Perry v. Bullock, 409 S.C. 137, 761 S.E.2d 251 (2014): guidance on reading the same definition.

Official title

On whether certain test questions used by the SCCJA to evaluate certificate eligibility of LEO candidates must be disclosed in response to a FOIA request.

Requester

Director Lewis J. Swindler, Jr., South Carolina Criminal Justice Academy.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-23-2019/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/04/Swindler-L-OS-10336-FINAL-Opinion-4-23-2019-JONES-01952555xD2C78-01955125xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

April 23,2019
Director Lewis J. Swindler, Jr.

South Carolina Criminal Justice Academy
5400 Broad River Road

Columbia, SC 29212-3540
Dear Director Swindler:

We received your request seeking an opinion on whether certain test questions used by the SCCJA to evaluate certification eligibility of LEO candidates must be disclosed in response to a FOIA request. This opinion sets out our Office's understanding of your question and our response.

Issue(as quoted from your letter):

I am writing to request an opinion regarding whether reusable test questions maintained in a secured database of the South Carolina Criminal Justice

Academy (Academy) for purposes of evaluating the certification eligibility of South Carolina law enforcement officer candidates are considered a "public record" that must be disclosed in response to a request under the South Carolina Freedom of Information Act(FOIA), pursuant to S.C. Code Ann. § 30-4-20(C). The Academy recently received a Freedom of Information Act Request from the City of North Charleston seeking a "copy of each LEI/Basic Law Enforcement Training Written Test as administered by the CJA." While we are mindful and respectful of our obligation under the FOIA to promptly provide copies of requested public records, our concern in the present matter that disclosure of secured testing materials which form a fundamental component of the Academy's evaluation of officer candidate suitability for law enforcement certification and the basic law enforcement officer training program would serve to undermine the integrity of the law enforcement certification process prompts this request for your guidance.

While neither regulated by the South Carolina Department of Education nor the South Carolina State Board of Education nor subject to the provisions of the South Carolina School Code (S.C. Code Ann. § 56-1-10 et seq.L the Academy

ILENiBERTC. Dennis Building . Post Office Box i 1549 . Columbia,SC 29211-1549 o Telephone 803-734-3970 • Facsii/Iile 803-253-6283

Director Lewis J. Swindler, Jr.
Page 2

April 23,2019

is classified as an academic institution by CALEA and as a "public school" by the Department of Veterans Affairs .... The test questions are developed and maintained based to address State mandated standards and a candidate's performance on testing is critical to the determination of whether certificates will be awarded. Disclosure of the testing database

questions to the Public would seriously impair the Academy's ability to objectively assess a candidate's fitness for law enforcement certification and would grossly impair the integrity of the certification process by making the

questions available to officer candidates in advance of testing, negating the Academy's efforts to educate law enforcement officers, enforce standards for law

enforcement and criminal justice service, and upgrade law enforcement to professional status. By making the testing database questions freely available, the educational process attendant to an officer's certification would be effectively rendered

meaningless and the process would foreseeably devolve into an officer's ability to simply "study for the test." That result would be clearly contrary to the intent of

the General Assembly in enacting the South Carolina Law Enforcement Training Act to

create

"a facility and a governing

council

to

maximize

training

opportunities for law enforcement officers and criminal justice service, all of which are imperative to upgrading law enforcement to professional status." [S.C. Code Ann. § 23-23-10(C)].

Law/Analysis:
It is the opinion of this Office that the reusable test questions maintained in a secured database of the South Carolina Criminal Justice Academy for purposes of evaluating the

certification eligibility of South Carolina law enforcement officer candidates are not considered a "public record" under the South Carolina Freedom of Information Act and need not be disclosed

in response to a FOIA request. Your request letter describes several policy rationales in support for this result and a court may very well find them compelling. As a matter of law, however, we believe that a court would conclude that the SCCJA certification test qualifies as a "scholastic

record" as the term is usually and customarily understood, and therefore the General Assembly excluded the test questions from the definition of a public record in Section 30-4-20(C). Based upon your letter we understand that there is no question whether the SCCJA qualifies as a

"public body," and accordingly our opinion here will focus on discussion of the SCCJA test as a "public record."

The SC FOIA provides generally that "A person has a right to inspect, copy, or receive an

electronic transmission of any public record of a public body, except as otherwise provided by

Director Lewis J. Swindler, Jr.
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April 23,2019

Section 30-4-40, or other state and federal laws, in accordance with reasonable rules concerning time and place of access." S.C. Code Ann. § 30-4-30(a)(l) (Supp. 2018) (emphasis added). "On

numerous occasions, in construing FOIA, we have emphasized the Legislature's expression of openness in government, as articulated in § 30-4-15." Op. S.C. Att'y Gen., 2012 WL 3875118 (August 28, 2012). Additionally, our Office has opined previously: As with any statute, the primary objective in construing the provisions of

the Freedom of Information Act is to give effect to the legislature's intent.

Bankers Trust of South Carolina v. Bruce, 275 S.C. 35, 267 S.E.2d 424 (1980). South Carolina's Freedom of Information Act was designed to guarantee to the

public reasonable access to certain information concerning activities of the government. Martin v. Ellisor, 266 S.C. 377, 213 S.E.2d 732 (1975). The Act is a statute remedial in nature and must be liberally construed to carry out the purpose mandated by the General Assembly. South Carolina Department of Mental Health v. Hanna, 270 S.C. 210, 241 S.E.2d 563 (1978). Any exception to the Act's applicability must be narrowly construed. News and Observer Publishing

Co. v. Interim Bd. ofEd. for Wake Co., 29 N.C. App. 37, 223 S.E.2d 580 (1976).

Op. S.C. Att'y Gen. , 1988 WL 383514 (April 11, 1988).

The FOIA contains an extensive definition of what constitutes a public record, which we quote here in relevant part:

"Public record" includes all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body. Records such as income tax returns, medical records, hospital medical staff reports, scholastic records, adoption records, records related to registration, and circulation of library materials which contain names or other personally identifying details regarding the users . . . and other records which by law are

required to be closed to the public are not considered to be made open to the public under the provisions of this act ....

S.C. Code Ann. § 30-4-20(c) (Supp. 2018) (emphasis added). Numerous prior opinions of this Office have addressed this statutory definition, including a few prior opinions addressing a

"scholastic record." Generally these opinions have addressed administrative or employment records, and in that context our Office consistently has rejected any argument that a record

becomes a "scholastic record" merely because it is created or maintained by a school. For example, in 1976 our Office observed:

Director Lewis J. Swindler, Jr.
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April 23,2019

The scholastic records exception to the definition of public records, set out

in [the FOIA as then codified] has not been further defined by the legislature or the courts. The traditional definition of scholastic is as follows: Webster's New World Dictionary. 2nd Ed., as 1. of schools, colleges, universities, students, teachers, and studies; educational, academic.

This definition, taken to its outer limits would include anything relating to the subject of education. While an argument could be made that the records in question come within the above definition, and are therefore not discoverable, such argument gives little weight to the legislative intent of the Act. The Act was designed to make meetings and records open to the public unless specifically

excluded. Therefore the scholastic records exception should be read in a traditional, more limited context, and not in an all-inclusive manner. Op. S.C. Att'y Gen., 1976 WL 25249 (June 4, 1976). Following this analysis we concluded that a public body "could be required to disclose the year in which a teacher is certified, the date the certificate expires, the letter grade of the certificate and the pay group and class of the teacher, under the Freedom of Information Act." Id; see also Op. S.C. Att'y Gen., 2015 WL 992702 n.2 (February 19, 2015) ([SJcholastic records protected from release by law do not appear to be inclusive of teacher evaluations or an internal investigation regarding the same."). This author's research has not identified any reported South Carolina case or statutory amendment which would cause us to revise the statement quoted from our 1976 opinion. The opinion of the South Carolina Supreme Court in Perry v. Bullock provides some

additional guidance on this question, in that the "scholastic record" exclusion appears in the same sentence with the term "medical record" in Section 30-4-20(c). See Perry v. Bullock, 409

S.C. 137, 761 S.E.2d 251 (2014); S.C. Code Ann. § 30-4-20(c) (Supp. 2018). In Perry v. Bullock, the Court considered whether an autopsy qualified as a "medical record" such that it was excluded from mandatory disclosure under FOIA. Id. The Court concluded that it was such a record, and opined:

The FOIA requires public bodies to disclose public records upon request and defines public records as "all books, papers, maps, photographs, cards, tapes,

recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public

body." S.C. Code Ann. § 30-4-20. However, "[r]ecords such as ... medical records
... and other records which by law are required to be closed to the public are not

Director Lewis J. Swindler, Jr.
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April 23,2019

considered to be made open to the public under the provisions of [the FOIA] Id.

The phrase "medical records" is not defined within the statute and therefore, we turn to its normal and customary meaning. See, e.g., Branch v. City ofMyrtle Beach, 340 S.C. 405, 409-10, 532 S.E.2d 289, 292 (2000) ("When faced with an undefined statutory term, the Court must interpret the term in accord with

its usual and customary meaning."). Merriam-Webster defines a medical record as "a record of a patient's medical information (as medical history, care or treatments received, test results, diagnoses, and medications taken)." Merriam-Webster

Online,

http://www.merriam-webster.com/medical/medical%20records.

Thus,

plainly stated, medical records are those records containing medical information. We find autopsy reports fit neatly within that general understanding of

medical records. Section 17-5-5(1) of the South Carolina Code (2014) defines an autopsy as "the dissection of a dead body and the removal and examination of

bone, tissue, organs, and foreign objects for the purpose of determining the cause

of death and manner of death." Although the objective of an autopsy is to determine the cause of death, as the statute indicates, the actual examination is comprehensive. Thus, the medical information gained from the autopsy and indicated in the report is not confined to how the decedent died. Instead, an autopsy, which is performed by a medical doctor, is a thorough and invasive inquiry

into

the

body

of the

decedent which reveals

extensive

medical

information, such as the presence of any diseases or medications and any

evidence of treatments received, regardless of whether that information pertained

to the cause of death. Accordingly, we find an autopsy report falls within the definition of a medical record as that term is commonly understood.

409 S.C. at 141-42, 761 S.E.2d at 253.

Following the decision of the Court in Bullock, our Office considered whether toxicology reports also should be deemed to be "medical records" for the purposes of FOIA. Op. S.C. Att'y Gen., 2016 WL 1 167292 (February 24, 2016). There we opined: We readily acknowledge that the Supreme Court's Bullock analysis is

much different from that of our prior opinions and even from the Court's earlier decision in Bellamy v. Brown, 305 S.C. 291, 408 S.E.2d 219 (1991). Like our

prior

opinions,

Bellamy

had

concluded

that

FOIA

does

not

mandate

confidentiality in a given circumstance. Instead, the Bellamy Court concluded that

Director Lewis J. Swindler, Jr.
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April 23,2019

FOIA is a remedial statute and that exemptions in FOIA do not mandate nondisclosure. . . .

Nevertheless, regardless of our previous analysis, the Court's decision in

Bullock is now the governing law. Thus, we are constrained by this decision. Accordingly, while not free from doubt, we believe the Court is likely to adhere to its Bullock analysis in a case involving toxicology reports, deeming such reports to be "medical records" and therefore confidential. Op. S.C. Att'y Gen. , 2016 WL 1 167292 (February 24, 2016). Turning to the question presented in your letter, we observe that the record requested is

the SCCJA test itself. The test is administered following a course of study conducted by the SCCJA for the purpose of educating law enforcement officers and evaluating whether they

should be certified pursuant to South Carolina law. See S.C. Code Ann. § 23-23-10 et seq. Unlike an employment record or other administrative record, the test serves no purpose except to

assess whether the student received the education sought to be taught in the course of the SCCJA training. Such a test is quintessentially educational material. Therefore, consistent with the

guidance of the South Carolina Supreme Court in Perry v. Bullock, we believe the test is fairly characterized as a "scholastic record" in the usual and customary use of the term.

l

Additionally, we note that the FOIA's "scholastic record" exception does not include any

requirement that the record be created by a particular institution, such as a public high school or university. Indeed, our Office historically has rejected the argument that a record is scholastic in nature merely because it is created by a school. The General Assembly did not place any express legislative restrictions on which institutions are capable of creating scholastic records in Section 30-4-20(c). By contrast, in the same sentence the General Assembly did undertake to specify an exception for "circulation of library materials which contain names or other personally identifying details regarding the users of public, private, school, college, technical college, university, and state institutional libraries and library systems . . . ." In the absence of such a restriction which modifies the scholastic record exception, we believe a court would decline to

read any such requirement into the statute.

1 For the sake of clarity, we note that this author's research has not identified any positive definition of what a "scholastic record" is for the purposes of the FOIA; neither does this opinion undertake to establish one. Indeed, it appears that when the definition of a "scholastic record" has been at issue in the past, our prior opinions universally have approached the question through negation by saying what a scholastic record is not. See, e.g., Op. S.C. Att'y Gen., 1976 WL 25249 (June 4, 1976).

Director Lewis J. Swindler, Jr.
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April 23,2019

Conclusion:

Therefore, consistent with the guidance of the South Carolina Supreme Court in Perry v. Bullock and prior opinions of this Office, it is the opinion of this Office that the reusable test questions maintained in a secured database of the South Carolina Criminal Justice Academy for purposes of evaluating the certification eligibility of South Carolina law enforcement officer candidates

are

not considered

a "public record" under the

South

Information Act and need not be disclosed in response to a FOIA request.

Sincerely,

lAA/i

David S. Jones
Assistant Attorney^General
REVIEWED AND APPROVED BY:

Robert D. Cook

Solicitor General

Carolina Freedom

of