Was a Budget and Control Board sewer-system report exempt from South Carolina FOIA as attorney work product?

Plain-English summary

A legislator asked whether Budget and Control Board Report #2 on the New Ellenton Sewer System could be withheld under South Carolina FOIA. The Assistant AG identified the statutory exemption for legal counsel’s correspondence or work product and material protected by the attorney-client relationship. He then described a 1997 order in a civil case quashing subpoenas for investigators’ notes, interviews, conclusions, and reports prepared for the Board’s legal counsel.

The author said he had been informed that Report #2 was among the materials the judge found absolutely protected as attorney work product in that case. On that understanding, he predicted that a court considering the FOIA request would most likely find the report exempt. His opinion was predictive and depended on the report’s identification with the protected litigation work; it did not announce a separate FOIA court ruling. The letter was informal.

Currency note

This opinion was issued in 1998. 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 AG report a FOIA judgment about Report #2? A: No. He predicted how a court would likely rule under FOIA, drawing on a civil-case order about work product.

Q: What protected work was described?
A: The letter said the court order covered investigators’ notes, interviews, conclusions, mental impressions, and reports prepared for legal counsel on litigation matters.

Q: Was the report definitely identified in the order from the AG’s own review? A: The letter said the author had been informed that Report #2 was one of the protected documents; its prediction rested on that information.

Background and statutory framework

The opinion cited § 30-4-30(a) for inspection of public records and Section 30-4-40 for exemptions, including the counsel/work-product provision as extracted in the PDF. It used the November 20, 1997 civil-case order to assess the requested report.

Citations and references

FOIA provisions discussed: § 30-4-30(a); Section 30-4-40; § 30-440(a)(7) (PDF extraction).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-7-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98jan7beck.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHA RLES MOLON Y CO N DO N
ATfORNE Y GENERAL

January 7, 1998

The Honorable T. Scott Beck
Member, House of Representatives
22 Rapids Court
North Augusta, South Carolina 29841
Re:

Informal Opinion

Dear Representative Beck:

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Your opinion request has been fmwarded to me for reply. You have informed this Office that Mr. Edwin Sanders has attempted to obtain a copy of Budget and Control Board Report #2 relating to the New Ellenton Sewer System through the Freedom of Information Act (hereinafter "FOIA"). You have also informed this Office that legal counsel for the Budget and Control Board contends that this document is protected by the attorney-client privilege, as well as the work product doctrine. You have asked whether this document is protected by the FOIA. The FOIA provides that any person has a right to inspect or copy any public record of a public body, except those matters exempt from disclosure under Section 30-4-40 of the Code. S.C. Code Ann.§ 30-4-30(a). One of the exemptions found in Section 30-4-40 is for correspondence or work products of legal counsel for a public body and any other material that would violate the attorney-client relationship. S.C. Code Ann. § 30-440(a)(7). It is my understanding that this document, along with other documents and the individuals who prepared them, were subpoenaed by the plaintiff in a civil case captioned Louis Whitlaw v. John W. Harte, Esq. et al., CIA No. 96-CP-02-810. Counsel for the Budget and Control Board objected to the subpoenas and subpoenas duces tecum on the grounds that the individuals performed investigative work for legal counsel of the Budget and Control Board in preparation for advising the Budget and Control Board on litigation
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POST OFFICE Box

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115-19

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Cou:.'181A. S.C. 292 11 -15-19

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TELEPHONE:

803-73--3970

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FACSIMILE: 803-253 -6283

The Honorable T. Scott Beck
Page 2
January 7, 1998
matters, and that their notes, interviews, and reports constituted attorney work product. In an Order dated November 20, 1997, Judge L. Casey Manning concluded that the investigative notes of these individuals, any tapes or documents related to interviews they conducted, their conclusions, mental impressions and investigative reports are subject to absolute immunity under the attorney work product privilege. He therefore quashed the subpoenas and subpoenas duces tecum. I L

I have been informed that Budget and Control Board Report #2 relating to the New Ellenton Sewer System was one of the documents that Judge Manning found to be subject to absolute immunity under the attorney work product privilege in the context of the above referenced civil case. Therefore, it is most likely that if a court were asked to make the same determination under the FOIA, it would determine that this document is attorney work product and, thus, exempt from disclosure under the FOIA. 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.

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With kindest regards, I remain

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;l;,~urs,

Paul M. Koch
Assistant Attorney General