Did South Carolina schools have to disclose employees earning more than fifty thousand dollars, including retirees on contracts?

Plain-English summary

The Attorney General concluded that a school district should disclose the requested list of teachers and administrators earning more than fifty thousand dollars a year. The answer also covered employees in the Teacher and Employee Retirement Incentive program and former participants later working under contract.

The opinion treated the district as a public body and compensation records as public records. It found no clear exemption for the described information and reasoned that withholding compensation paid with public money would undermine the public-records law's disclosure purpose.

Currency note

This opinion was issued in 2010. 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 include employees in the TERI program? A: Yes. It said the requested list should include employees who retired and entered TERI.

Q: Did a later contract exclude a former TERI participant from the list? A: No. The opinion said former TERI participants employed on contract were also covered by the requested disclosure.

Q: Did the Attorney General find a privacy exemption for the described salaries? A: No. It found no clear exemption applicable to this requested school-compensation information.

Background and statutory framework

A senator asked why the media had been denied a list of school district employees above the stated compensation threshold. The opinion applied the South Carolina Freedom of Information Act's public-record rule and its narrowly read exemptions to school salaries and retirement-related pay.

Citations and references

The original text below discusses S.C. Code§ 30-4-30(a), S.C. Code§ 30-4-40, and Seago v. Horry County, 378 S.C. 414, 423, 663 S.E.2d 38, 42 (2008).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-12-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/knotts-j-m-jr-os-9061-5-12-10-foia-teachers-administrators-salaries-TERI.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY GENERAL

May 12, 2010

The Honorable John M. "Jake" Knotts, Jr.
Senator, District No. 23
P. 0. Box 142
Columbia, South Carolina 29202
Dear Senator Knotts:
We received your letter requesting an opinion ofthis Office concerning the Freedom of Information Act. As background, you explained the following: Recently I have had an inquiry from the media as to why they are being denied information under the Freedom of Information Act regarding their request for a list of school district employees, including teachers and administrators, who make over $50,000.00 a year. This would include those who have retired and entered the TERI [Teacher and Employee Retirement Incentive] program and also those who have completed the TERI plan and are employed on a contractual basis. You asked whether or not the above referenced information should be released under the Freedom ofInformation Act. This opinion will address prior opinions, legislative intent, relevant statutes and caselaw. Law/Analysis

Chapter 4, Title 30 of the South Carolina Code of Laws 1976 contains the " Freedom of Information Act" (FOIA). The General Assembly expressly states that the purpose ofFOlA is as follows: The General Assembly finds that it is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised ofthe performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy. Toward this end, provisions of this chapter must be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.

REMBERT

c. D ENNIS B UrLDING • POST OFFICE Box ll549 • COLUMBIA. SC 292 11 -1549 • T ELEPHONE 803-734-3970 • fACSIMlLE 803-253-6283

The Honorable John M. "Jake" Knotts, Jr.
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May 12, 2010

S.C. Code§ 30-4-15.
In Sloan v. Friends of Hunley, Inc., the Supreme Court of South Carolina held that the "purpose of FOIA is to protect the public by providing a mechanism for the disclosure of information by public bodies." Sloan, 369 S.C. 20, 26, 630 S.E.2d 474, 478 (2006). Also, in Quality Towing, Inc. v.City of Myrtle Beach, the Supreme Court held that "FOIA is remedial in nature and should be liberally construed to carryoutthepurposemandated by the legislature." Quality Towing, 345 S.C. 156, 161, 547 S.E.2d 862, 864-65 (2001). The Code further clarifies the legislative intent ofFOIA by stating, "[a]ny person has a right to inspect or copy any public record of a public body, except as otherwise provided by§ 30-4-40, in accordance with reasonable rules concerning time and place of access." S.C. Code § 30-4-30(a). The terms "public body" and "public record" are both defined in S.C. Code§ 30-4-20(a) and (c) respectively: (a)

"Public body'' means any department of the State, a majority of directors or their representatives of departments within the executive branch of state government as outlined in Section 1-30-10, any state board, commission, agency, and authority, any public or governmental body or political subdivision of the State, including counties, municipalities, townships, school districts, and special purpose districts, or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds ....

(c)

"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....

S.C. Code§ 30-4-20(a) & (c) (emphasis added).
School districts are specifically mentioned in the definition of a public body and are bodies supported by public funds, so we believe school districts in South Carolina qualify under FOIA as a public body. S.C. Code§ 30-4-20(a). As noted in an opinion of this Office dated January 24, 2007 we addressed a similar issue of disclosure under FOIA and concluded that a list of participants in the TERI program would qualify as public records. We stated as follows:
[R]ecords containing information as to employees of the Department who are participants in the TERI program constitute public records. Therefore, under the FOIA, the Department, as a public body, is required to allow [the requestor] to inspect or copy such records. Op. S.C. Atty. Gen., January 24, 2007.

The Honorable John M. "Jake" Knotts, Jr.
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May 12, 2010

S.C. Code § 30-4-40 lists various matters that are exempt from disclosure. Such matters include, among others, trade secrets, records oflaw enforcement during the cours.e of an investigation, work product oflegal council, and private investment and other proprietary financial data. S.C. Code§ 304-40. Depending on the nature of the retirement fund, one could make an argument that an employee's retirement records could fall under the exemption in S.C. Code § 30-4-40(a)(19), "private investment and other proprietary financial data." Additionally, one could argue that the requested information should be protected under S.C. Code § 30-4-40(a)(2) which exempts "information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy." In Burton v. York County Sheriff's Department, the Court of Appeals explained the following: Our Supreme Court has defined the "right to privacy" as the right of an individual to be let alone and to live a life free from unwarranted publicity. Sloan, 355 S.C. 321 (2003). However, "one of the primary limitations placed on the right of privacy is that it does not prohibit the publication of matter which is oflegitimate public or general interest." Society of Profl Journalists v. Sexton, 283 S.C. 563, 566, 324 S.E.2d 313, 315 (1984) (quoting Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956)). Burton, 358 S.C. 339, 352, 594 S.E.2d 888, 895 (2004). The Burton court held that access to information sought should be granted because the "performance of public duties by the Sheriff and his deputies and the response of the Department to allegations of misconduct by the deputies" is a matter of public interest. Burton, 358 S.C. 339, 352 (2004). The court goes on to explain that under the Fourteenth Amendment, the right to privacy has been narrowly defined and limited to specific situations such as "certain rights of freedom of choice in marital, sexual, and reproductive matters." Burton, 358 S.C. at 353. The Sheriffs Department urged the Burton Court to "add another category of protection to the privacy rights the Supreme Court has found under the Fourteenth Amendment: the right of an individual's performance of his public duties to be free from public scrutiny." Id. at 353. The court held that unless and until the Supreme Court rules otherwise, the court will "follow its precedent and not expand the 'right of privacy' under the Fourteenth Amendment beyond those situations which the Court has ruled bear on the most intimate decisions affecting personal autonomy-namely reproductive rights, familial and marital relations." Id. at 354. In an opinion dated August 21, 1980, this Office concluded the following: By statute the names, sex, race, title, and dates of employment of all public employees when requested in writing must be furnished to the requesting party. Age, experience, length of contract, and daily schedules of all teachers employed in a school district constitutes information of a personal nature where the public disclosure thereof would constitute an

The Honorable John M. "Jake" Knotts, Jr.
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May 12, 2010

unreasonable invasion of personal privacy absent the consent of the party about whom this information is sought. Op. S.C. Atty. Gen., August 21, 1980. We believe a court would hold, in accordance with the nature ofFOIA, that the salary and retirement payments to school district employees - both TERI and contract - should be disclosed. The Supreme Court held in Seago v. Horry County that"[ a]ny government agency attempting to avail itself of an exemption bears the burden of proving the exemption applies." Seago, 378 S.C. 414, 423, 663 S.E.2d 38, 42 (2008) (citingEveningPostPubl'gCo. v. CityofNorth Charleston, 363 S.C. 452, 457, 611 S.E.2d 496,499 (2005)). The court also held that the "exemptions to FOIA should be narrowly construed to ensure public access to documents." Id. 1 In an opinion of this Office dated April 10, 1995 we stated as follows:
... common sense must prevail over technical niceties. This construction is not only in keeping with the spirit of the FOIA, but also with the admonition from the courts that, where records show the manner of expenditure of public monies, there is virtually no legitimate reason why those expenditures should not be disclosed ... In this instance, nondisclosure of a person's compensation, because the actual salary is under
$50,000 when, in reality, the employee's total compensation from the university or college exceeds that amount, would actually mislead the public by giving the false impression that the public body was renumerating the individual in an amount considerably less than is the case. Accordingly, it is our opinion that where the total compensation from the university or college is greater than $50,000, such must be disclosed. Op. S.C. Atty. Gen .. April 10, 1995 (emphasis added). Similar logic can be applied to individuals who participated in the TERI program for five years but have now come back as contract employees. The language of the statute reads "persons receiving compensation of fifty thousand dollars or more annually." Even though the words "contract employee" are not mentioned, the individual's compensation should be disclosed under FOIA ifhe or she receives fifty thousand dollars or more. See Id.; S.C. Code§ 30-4-40(6)(A).

1

See also, Society of Prof'l Journalists, 283 S.C. 563, 566 (1984) (DHEC argued that S.C. Code § 30-4-40(a)(2) applied as the "information was of a personal nature where the public disclosure thereof would constitute unreasonable invasion of privacy." However, the Supreme Court disagreed and held that the exception did not apply and the requested information should be disclosed as the information was oflegitimate public interest).

The Honorable John M. "Jake" Knotts, Jr.
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May 12, 2010

Conclusion
In accordance with the general nature of FOIA and our referenced opinion above, where records show the manner of expenditure of public monies, there is no applicable exception in the law, nor, in our view, any valid basis for why those expenditures should not be disclosed. Op. S.C. Atty. Gen., April 10, 1995. We conclude that the list of school district employees, including teachers and administrators, who make over $50,000.00 a year should be disclosed. This would include those who have retired and entered the TERI program and also those who have completed the TERI plan and are employed on a contractual basis. The school district is a public body and the information requested falls within the category of public record. Therefore, the list should be disclosed because "[a]ny person has a right to inspect or copy any public record of a public body, except as otherwise provided by§ 30-4-40, in accordance with reasonable rules concerning time and place of access." S.C. Code§ 30-4-30(a). There is no clear exception in S.C. Code§ 30-4-40 that applies to this situation. Consistent with prior opinions, it is the opinion of this Office that all of the requested information should be released under the Freedom of Information Act.

Sincerely,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

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WJiCOOk
Deputy Attorney General

Leigha Blackwell
Assistant Attorney General