Could a South Carolina board member disclose what was discussed in executive session?

Plain-English summary

The South Carolina Commission for the Blind asked whether a board member could disclose executive-session discussions to a private group or the public. In March 2002, the AG reaffirmed earlier office advice that the Freedom of Information Act did not impose a mandatory restriction on a public body or its members disclosing an individual’s vote or reasons for a vote in executive session.

The earlier advice suggested board rules as a possible way to address individual disclosure, but a later office opinion questioned whether sanctioning a member for revealing closed-session discussions would conflict with the First Amendment. The AG said that warning remained valid. The letter did not identify a categorical confidentiality rule for all executive-session discussion or resolve a specific board sanction.

Currency note

This opinion was issued in 2002. 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.

Historical summary

Board members

The letter repeated the office’s view that FOIA itself did not require silence about an individual vote or the reasons for it in executive session. It cautioned that rules restricting a member’s public speech raised constitutional questions.

Public boards

The AG described earlier consideration of board conduct rules with sanctions, then emphasized the First Amendment concern that a broad disclosure ban could be an impermissible prior restraint.

Common questions

Did FOIA itself prohibit a board member from discussing a closed-session vote? A: The AG cited earlier advice saying it did not impose a mandatory restriction on disclosing an individual vote or the reasons for it.

Could a board simply ban all disclosure by its members? A: The letter warned that a broad prohibition could raise First Amendment prior-restraint concerns; it did not approve a particular rule.

Background and statutory framework

The request concerned executive sessions under § 30-4-70. The AG relied on office opinions from 1983 and 1984 and quoted their discussion of Dean v. Guste about recording closed meetings and members’ ability to publish their accounts. He concluded the constitutional caution from the 1984 advice remained sound.

Citations and references

• § 30-4-70: executive-session provision identified in the request.
• Dean v. Guste: case discussed in the prior office advice quoted by the AG.

Official title

Asking for clarification concerning whether the Freedom of Information Act precludes the disclosure of executive session discussions by a board member to a private organization or to a member of the public.

Requester

Latonya Dilligard Edwards, Chief Counsel, South Carolina Commission for the Blind

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-26-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02march26edwards.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

March 26, 2002

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Latonya Dilligard Edwards, Chief Counsel
South Carolina Commission for the Blind
P. 0. Box 79
Columbia, South Carolina 29202-0079

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Dear Ms. Edwards:
You have asked for clarification concerning whether the Freedom of Information Act precludes the disclosure of executive session discussions by a board member to a private organization or to a member of the public. You have also inquired as to whether "other state laws are implicated by the disclosure of executive session discussions pursuant to S.C. Code§ 30-4-70." This Office has written opinions regarding this question which are enclosed for your review. In Op. Atty. Gen., March 23, 1983, this Office commented that "there is no mandatory

restriction either upon the public body or the individual members of that body against the disclosure of an individual's vote or the reasons for that vote on any topic taken up during the [executive] session." That opinion added that "[t]he only preventative solution to individual disclosure of the contents of the executive session discussions and individual votes would be by the rules of conduct or regulations adopted by the particular Board in issue with appropriate sanctions attached in the event of disclosure." Then, in an opinion dated September 21, 1984, we questioned whether or not an attempt to sanction an individual member of a public body for revealing discussions of that body while in executive session were in contravention of the First Amendment. That opinion discusses in detail the Louisiana case Dean v. Guste, (La.), 414 So.2d 862 (1982). As we noted in the opinion,
[t]he principal holding by the Court in Guste was that a regulation which prohibited a board member from actually recording by mechanical means board proceedings conducted in executive session was valid. However, the Court clearly suggested that it was important to its decision that the board member "remains free to publish whatever he chooses concerning any matters entertained by the School Board, limited only by his own discretion and the laws of the State governing defamations." 414 So.2d at 864. The Court further recognized that there existed "legitimate First
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REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Ms. Edwards
Page 2
March 26, 2002

Amendment concerns" in the members' conveying to the public the details of the School Boards' executive sessions "as completely and accurately as possible." Id.
.. . [T]he case can be read as suggesting that if the board were to prohibit any dissemination of executive session information such a rule would constitute a prior restraint and be constitutionally impermissible .... I would caution that these First Amendment implications be considered .... This advice, rendered in 1984, remains valid today, in my opinion. 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 question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion. Sincerely,

Robert D. Cook
Assistant Deputy Attorney General
RDC/an
Enclosures
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