Could South Carolina sign a federal highway review agreement, and was its records law comparable to FOIA?

Plain-English summary

In an October 2026 opinion letter to federal transportation officials, South Carolina's Attorney General's office addressed a proposed memorandum of understanding for the state transportation department and the comparability of state and federal public-records laws. The office concluded that the agreement was authorized by state law and would be valid and binding on the state when executed. It also said South Carolina's and federal freedom-of-information laws appeared comparable as written.

The letter identified a statutory condition for the state's waiver of immunity: the state Secretary of Transportation had to execute the agreement with the U.S. Department of Transportation, accepting federal-court jurisdiction. The AG's office supplied the opinion letter called for before execution. On records access, it cited state provisions on requesting records, categories of public information, and enforcement actions. The letter did not evaluate any particular records request.

What this means for you

Transportation agencies

The opinion treated the proposed agreement as consistent with state law and binding once executed. It did not state that the agreement had already been signed. Its conclusion concerned the agreement the office reviewed for the federal environmental-law responsibilities described in the letter.

Public-records requesters

The office found the two freedom-of-information laws comparable as written. Its letter pointed to South Carolina provisions for requesting records and enforcement, without deciding whether a particular document must be disclosed.

Common questions

Did the opinion say the transportation agreement was already in force?

No. It said the memorandum of understanding would be valid and binding on the state upon its execution.

Why did the federal officials need this letter?

The letter quoted federal certification requirements and a state provision calling for an AG opinion on the agreement and immunity waiver before execution.

Did the office find South Carolina's records law comparable to federal FOIA?

Yes. It said the two laws appeared comparable as written and identified state rules for records requests, public information, and enforcement actions.

Background and statutory framework

The letter relied on S.C. Code Ann. §57-3-790 for the agreement and the state's waiver of immunity, and quoted Section 57-1-50 on assent to federal highway aid. It cited 23 C.F.R. § 773.109 for the requested certifications. For South Carolina's records law, it identified § 30-4-30 on requests and §30-4-100 on enforcement actions. The source PDF contains three pages; its third-page header bears October 19, 2026, while the letter's first page is dated October 21, 2026.

Citations and references

• S.C. Code Ann. §57-3-790: state authority and conditions for the agreement and immunity waiver.
• Section 57-1-50: assent to federal highway-aid terms quoted in the letter.
• 23 C.F.R. § 773.109: federal certifications quoted in the letter.
• § 30-4-30 and §30-4-100: state records-request and enforcement provisions named in the comparison.

Official title

Letter regarding the Authority of South Carolina Department of Transportation to enter a Memorandum of Understanding with USDOT and Freedom of Information Act comparability

Requester

The Honorable Sean P. Duffy, Secretary of the United States Department of Transportation and Sean McMaster, Administrator of the Federal Highway Administration

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/letter-regarding-the-authority-of-south-carolina-department-of-transportation-to-enter-a-memorandum-of-understanding-with-usdot-and-freedom-of-information-act-comparability/
• Original PDF: https://www.scag.gov/media/pmalfl33/duffyandmcmaster-final.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

October 21, 2026

The Honorable Sean P. Duffy

Secretary

United States Department of Transportation
1200 New Jersey Ave., SE

Washington, DC 20590

The Honorable Sean McMaster
Administrator

Federal Highway Administration
1200 New Jersey Ave., S.E.
Washington, D.C. 20590

Re: Authority of South Carolina Department of Transportation to enter a Memorandum of Understanding with USDOT and Freedom of Information Act comparability

Dear Mr. Duffy and Mr. McMaster:

I am writing you regarding two matters: the attached memorandum of understanding (MOU) to be executed by the South Carolina Secretary of Transportation with the United States Department of Transportation (See S.C. Code Ann. §57-3-790 (A)(1)) and the comparability of the Freedom of Information Acts of the State of South Carolina and the United States. I wrote you on June 10, 2026, confirming that the State had waived its immunity pursuant to S.C. Code Ann. §57-3-790 of Act No. 244, 2026 S.C. Acts. Federal regulations 23 C.F.R. §773.109 (6) and 7) require certifications by the Attorney General regarding these matters.! I have reviewed these

1 23 C.F.R. § 773.109 provides these requirements as follows:

(6) Certification and explanation by the State's Attorney General, or other State official legally empowered by State law to issue legal opinions that bind the State, that the State has legal authority to assume the responsibilities of the Secretary for the Federal environmental laws and projects requested, and that the State consents to exclusive Federal court jurisdiction with respect to the responsibilities the State is requesting to assume. Such consent must be broad enough to include future changes in relevant Federal policies and procedures or allow for its amendment to include such future changes;

REMBERT C. DENNIS BUILDING © POST OFFICE BOX 11549 » COLUMBIA, SC 29211-1549 « TELEPHONE 803-734-3970 « FACSIMILE 803-253-6283

Mr. Duffy and Mr. McMaster
October 21, 2026
Page 2

matters with General Counsel for the South Carolina Department of Transportation who concurs in this Opinion..

Section 57-3-790(A) addresses the memorandum of understanding in providing that the waiver of immunity under that statute is valid only under several conditions including the following:

(1) the Secretary of Transportation executes a memorandum of understanding with the United States Department of Transportation accepting the jurisdiction of the federal courts as required by 23 U.S.C. Sections 326(c) and 327(c);

(2) before execution of the memorandum of understanding under subsection (A), the South Carolina Attorney General has issued an opinion letter to the Secretary of Transportation and the administrator of the Federal Highway Administration that the memorandum of understanding and the waiver of immunity are valid and binding upon the State... .

The Opinion of this Office is that the MOU is valid and binding on the State upon its execution. The MOU is expressly authorized by §57-3-790, and State law provides that the South Carolina Department of Transportation “shall coordinate all state and federal programs relating to highways among all departments, agencies, and other bodies politic and legally constituted agencies of this State and the performance of such other duties and matters as may be delegated to it pursuant to law.” Section 57-1-50 provides that “[t]he assent of the State is hereby given to the terms and provisions of any act providing for federal aid to the states for the construction of highways and other related transportation projects. The good faith of the State is hereby pledged to provide sufficient funds to meet the requirements of said federal act, so as to acquire the benefits thereof. The terms of the MOU appear to be consistent with State law.

We have reviewed and compared the South Carolina (§30-4-10, et seq.) and federal Freedom of Information Acts, and they appear to be comparable as written. For your information, among other provisions in South Carolina’s FOIA, § 30-4-30 sets forth provisions for requesting records, § 30-4-50 makes certain categories of information public information (see also §30-4-20(c)(“public records” defined)), and §30-4-100 provides for enforcement actions.

(7) Certification by the State's Attorney General, or other State official legally empowered by State law to issue legal opinions that bind the State, that the State has laws that are comparable to FOIA, including laws that allow for any decision regarding the public availability of a document under those laws to be reviewed by a court of competent jurisdiction;

Mr. Duffy and Mr. McMaster
October 19, 2026
Page 3

I trust that this letter provides the information that you need.

Sincerely,

J. Emory Smith, Jr.
General Counsel

Reviewed and approved by:

Robert D. Cook
Solicitor General Emeritus

cc: Mr. Jermaine R. Hannon, Division Administrator, Federal Highway Administration The Honorable Justin P. Powell, South Carolina Secretary of Transportation Ms. Barbara M. Wessinger, Chief Counsel, South Carolina Department of Transportation