Could a South Carolina agency demand $434,250 to let a requester inspect public records?

Plain-English summary

In 2006, a legislator asked about a $434,250 charge the South Carolina Workers’ Compensation Commission quoted for inspection of final orders requested under FOIA. The Attorney General said the figure looked excessive on its face, but only a court could decide whether the agency’s actual costs and the law’s “lowest possible cost” rule justified it. He emphasized that charging exorbitant fees could deny access just as surely as refusing records outright.

The Commission had also withheld other requested documents on the ground that they contained exempt workers’ compensation information. The AG said the agency had to review the records, separate exempt from nonexempt material, and release the remainder. It bore the burden of justifying exemptions document by document and line by line. He identified a possible FOIA action in circuit court if the requester believed the agency was violating those rules.

Currency note

This opinion was issued in 2006. 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 find that the $434,250 quote was unlawful? A: He said it appeared excessive, but did not make the necessary factual determination. Only a court could decide whether the amount matched actual costs and the lowest possible cost requirement.

Q: Could an agency charge for deciding whether records were exempt? A: The FOIA provision quoted in the opinion barred fees for examination and review to determine whether documents were subject to disclosure.

Q: Could the Commission withhold an entire file because part was exempt? A: The AG said no. The agency had to separate exempt material and make nonexempt material available.

Q: What did the opinion identify as a possible remedy?
A: The AG suggested the requester could use FOIA’s remedies, including a circuit-court action, if excessive fees or improper withholding denied access.

Background and statutory framework

Section 30-4-30 limited charges for searching and copying public records to actual cost and required the lowest possible cost to the requester. S.C. Code Ann.§ 30-4-40(b) (Supp. 2005) required separation of exempt and nonexempt material. The AG applied these provisions to the Commission’s fee and withholding positions while leaving the fee’s factual reasonableness to a court.

Citations and references

Statutes: Section 30-4-30; S.C. Code Ann.§ 30-4-40(b) (Supp. 2005).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-27-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06oct27-Loftis.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GENERAL

October 27, 2006

The Honorable Dwight A. Loftis
Member, House of Representatives
540 Sulphur Springs Road
Greenville, South Carolina 29617
Dear Representative Loftis:
This opinion is in response to your inquiry regarding fees which may be charged by an agency for production of records under the South Carolina Freedom of Information Act. By your letter, you informed us of the following: On July 14, 2006, the South Carolina Civil Justice Coalition ("SCCJC") attempted to obtain certain public records from the South Carolina Workers' Compensation Commission ("Commission") pursuant to the South Carolina Freedom of Information Act ("FOIA"), S.C. Code § 30-4-10 et seq. Specifically, SCCJC requested access to all final orders, Agreements and Final Releases, and Form l 6's issued or approved by the Commission since 2001.

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The Commission responded in writing to this FOIA request on August 1, 2006 and stated that while SCCJC is entitled to review final orders of the Commission, a fee of four hundred and thirty-four thousand, two hundred and fifty dollars ($434,250.00) would be required to make the requested final orders available for inspection. In addition, the Commission asserted that the Agreement and Final Releases and Form 16's are not public and would not be released because they contain infom1ation related to workers' compensation accidents, injuries, and settlements. Based on the above information, you request an opinion with respect to the following questions:

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I.

Is the fee of $434,250 sought by the Commission for
responding to the above-referenced FOIA request reasonable.
and is it consistent with the underlying premise of FOfA to
make it possible for citizens to learn and report fully the

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Omce Box 11549 •

COWMUOA, SC 292 11 -1549

• TELEPHONE 803-734-3970 •

FACSOMU£ 803-253-6283

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The Honorable Dwight A. Loftis
Page 2
October 27, 2006
activities of public officials at a minium cost, delay, and
inconvenience to the requesting party?

2.

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If the Agreement and Final Releases and Form 16's sought by
SCCJC contain material which is exempt, is the Commission
required to separate the exempt and nonexempt material and
make the nonexempt material available in accordance with
the requirements of the FOIA?

Law/Analysis
The FOIA was adopted in its present form by Act No. 593, 1978 Acts and Joint Resolutions.
A number of amendments have been made to FOIA over the years. The Act's preamble best
expresses both the Legislature's intent in enacting the statute, as well as the public policy underlying
it. The preamble to FOIA, set forth in S.C. Code Ann., Section 30-4-15, provides as follows:
[t]he 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
of the 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 fully report the activities of their public officials at a
minimum cost or delay to the persons seeking access to public documents or
meetings.
(emphasis added).

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On numerous occasions, in construing FOIA, we have emphasized the Legislature's
expression of openness in government, as articulated in§ 30-4-15. In Op. S.C. Atty. Gen., Op. No.
88-31 (April 11, 1988), for example, we summarized the rules of statutory construction which this
Office adheres to in interpreting FOIA, as follows:
[a]s with any statute, the primary objective in construing the provisions of the
Freedom oflnformation Act is to give effect to the legislature's intent. Bankers Trust
ofS.C. 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. S.C. Dept.
of Mental Health v. Hanna, 270 S.C. 210, 241S.E.2d563 (1978). Any exception to
the Act's applicability must be narrowly construed. News & Observer Publishing
Co. v. Interim Bd. of Ed. for Wake Co., 29 N.C.App 37, 223 S.E.2d 580 (1976). See
also Evening Post Publishing Co. v. City of North Charleston, 363 S.C. 452, 611

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The Honorable Dwight A. Loftis
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October 27, 2006
S.E.2d 496 (2005) [FOIA exemptions are to be narrowly construed to fulfill the
purpose of FOIA to guarantee the public reasonable access to certain activities of
government]; Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 547
S.E.2d 862 (2001) ["FOIA is remedial in nature and should be liberally construed to
carry out the purpose mandated by the legislature."].
Section 30-4-30 of the South Carolina Code (1991 & Supp. 2005), contained in FOIA,
provides in relevant part that

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(a)
Any person has aright 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.
(b)
The public body may establish and collect fees not to exceed the
actual cost of searching for or making copies of records. Fees charged by a public
body must be uniform for copies of the same record or document. However,
members of the General Assembly may receive copies of records or documents at no
charge from public bodies when their request relates to their legislative duties. The
records must be furnished at the lowest possible cost to the person requesting the
records. Records must be provided in a form that is both convenient and practical for
use by the person requesting copies of the records concerned, if it is equally
convenient for the public body to provide records in this form. Documents may be
furnished when appropriate without charge or at a reduced charge where the agency
determines that waiver or reduction of the fee is in the public interest because
furnishing the information can be considered as primarily benefiting the general
public. Fees may not be charged for examination and review to determine if the
documents are subject to disclosure. Nothing in this chapter prevents the custodian
of the public records from charging a reasonable hourly rate for making records
available to the public nor requiring a reasonable deposit by these costs before
searching for or making copies of the records available to the public nor requiring a
reasonable deposit of these costs before searching for or making copies of the
records.
We have commented upon § 30-4-30 and the requirements thereof on several occasions. For
example, in Op. S.C. Atty. Gen., Op. No. 92-40 (July 23, 1992), we stressed that the reasonableness
of the fees charged for production and reproduction of public records is ultimately a factual question
to be made by a court. However, we cautioned therein that these fees may not constitute a means
for denying access to records. There, we stated:
[a]pplying the terms of§ 30-4-30 to the cited terms of the resolution, we note that the
public body may make reasonable rules concerning time and place of access to public
records. What is considered reasonable is a question of fact and depends on the
circumstances under which access is permitted. In addition, fees may be established

The Honorable Dwight A. Loftis
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October 27, 2006
and collected for searching for or making copies ofrecords; such fees may not exceed
actual costs. Also, the custodian may charge a reasonable hourly rate for making
records available to the public. This Office cannot determine such factual questions
as whether $.25 per page exceeds the cost of making a copy or whether $15.00 per
hour for custodian's time is reasonable. Finally, a requester may be required to post
a reasonable deposit prior to the public body's searching for or copying records;
whether the required deposit of an amount equal to the estimated costs is reasonable
is again a factual question.
By an opinion of this Office dated November 4, 1976 ... , we opined that
public bodies may set up reasonable requirements for viewing and copying public
records. That opinion cautioned, however, that an internal system or policy for
handling such requests "must be carefully considered to make sure that it does not,
by design or implication, inhibit or reduce the public's ability to examine public
records." The same cautionary statement would be applicable to the situation
outlined above.

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If your constituents feel that the FOIA is being violated ... in that fees are in
excess of actual costs, the hourly rate is not reasonable, the deposit is unreasonable,
and the like, they may wish to consider pursuing the remedies available under FO IA.

And, in Op. S.C. Atty. Gen., October 4, 2004, we noted the following with regard to § 30-430:
[a]s indicated, the fees charged pursuant to the FOIA must not exceed the actual cost
of searching for and making copies. Such copies must be furnished at the lowest
possible cost. The charging of exorbitant fees inconsistent with such mandate would
be improper.
Further, in Op. S.C. Atty. Gen., February 6, 2001, we concluded that
... the fee charged with the Department of Public Safety for copies ofrecords must
not exceed the actual cost of searching for and making copies and also must be
furnished at the lowest possible cost ....
Prior opinions of this Office have consistently advocated practices that
encourage the fullest possible access to public records. See Ops. Atty. Gen Jan. 24,
1990; April 1 l, 1988. In accordance, with this principle, we would question whether
the increase, though less than the actual cost, is also the "lowest possible cost"
required by Section 30-4-30. An increase that triples the previous rate concerns us,
but many questions of fact must be resolved before any definitive conclusion could
be reached. This Office is not authorized to make factual determinations in a legal
opinion. See Op. Atty. Gen. Feb. I 7, 1999 .... Thus, a court, as the ultimate finder

The Honorable Dwight A. Loftis
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October 27, 2006
of fact, must determine whether the increased rate is both equal to or less than the
actual cost and is, in fact, the lowest cost possible to provide copies of records ....
[O]nly a court could find that the Division [of Motor Vehicles] exceeded its
authority.
(emphasis added).

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These opinions are consistent with authorities elsewhere and with general authorities. As is
noted in 3 7A Arn.Jur.2d, Freedom of Information Acts, § 444, a fee charged by an agency for
providing records "can only be one which compensates for the actual cost of furnishing the records
or services provided, and the agency is not mandated to set the fee at a profit-making level."
Moreover, it is also recognized that "the fee for copying public records must be reasonable and
cannot be used as a tool to discourage access." 66 Am.Jur.2d, Records and Recording Laws§ 20.
The agency bears the burden of justifying the charging of fees to the public. See, Graham v. Davis
County Solid Waste Mgment and Energy Recovery Special Service Dist.., 979 P .2d 363 (Utah 1999).
A fee which appears exorbitant based upon the "mere size" of the fee must be rebutted by the
agency. Natl. Treas. Employees Union v. Griffin, 811F.2d644 (D.C. Cir. 1987) [fee of$8,000].
The presumption is in favor of disclosure of documents. Fuller v. Homer, 113 P .3d 659 (Alaska,
2005); Rathmann v. Bd. of Directors ofDavenport Comm. Sch. Dist., 580 N.W.2d 773 (Iowa 1998).
Excessive charges for access to records "constitute a subversion of the intent of the [Freedom of
Information] Act." Op. Ky. Atty. Gen., Op. No. 03-0RD-050 (March 19, 2003). Thus, it is clear
that an agency may not impose an excessive or exorbitant fee for producing public records and,
pursuant to§ 30-4-30 and Op. S.,C. Atty. Gen., February 6, 2001, must charge only the actual cost
to the agency in such production, as well as the lowest possible cost.
Next, we address your question as to whether the Commission must separate material that
is not exempt from the FOIA from material that is exempt and provide such material to SCCJC.
Section 30-4-30(a), as cited above, contains the general provision requiring public records of public
bodies to be open to public inspection. Section 30-4-40 of the South Carolina Code ( 1991 & Supp.
2005) exempts a public body from providing such information as contained in its enumerated list.
Subsection (b) of this provision, however, states: "If any public record contains material which is
not exempt under subsection (a) of this section, the public body shall separate the exempt and
nonexempt material and make the nonexempt material available in accordance with the requirements
of this chapter." S.C. Code Ann.§ 30-4-40(b) (Supp. 2005). In considering this portion of section
30-4-40 in a previous opinion, we explained: "when a request under the Act is received by an
agency, each document requested must be reviewed in its entirety to determine whether any or all
of the document is subject to disclosure." Op. S.C. Atty. Gen., October 15, 1986. Furthern10re, in
another opinion we concluded the exemptions under FOIA must be applied narrowly and an agency
which desires to use an exemption has "the burden of showing document-by-document and
line-by-line the applicability of that exemption." Op. S.C. Atty. Gen., February 25, 1998.

The Honorable Dwight A. Loftis
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October 27, 2006

Conclusion
As we have previously recognized, only a court may determine the reasonableness of a fee
or charge imposed by an agency for the costs of producing records. However, it must be emphasized
that an agency's charge of excessive fees for producing records requested under FOIA is as much
a violation of the Act as outright denial ofrecords deemed disclosable pursuant thereto. Based upon
the express requirement set forth in § 30-4-30 of FOIA, a public body, such as the Workers'
Compensation Commission, must produce the records requested at actual cost to the agency and at
the lowest possible cost. In accordance with this standard, the agency or public body cannot
indirectly deny access to records not subject to exemptions provided pursuant to § 30-4-40 by
imposing excessive or exorbitant costs of production upon the requester. As we have previously
opined, an agency which desires to rely upon a particular exemption to disclosure under FOIA, has
the "burden of showing document-by-document and line-by-line the applicability of that exemption."

In other words, a court will require the public body to justify fees which, based upon the
"mere size" of the fee, appear excessive. Considering the huge size of the fee in question here, such
fee appears on the surface to be excessive and exorbitant. While only a court could make such a
determination, based upon the actual costs to the agency to produce the records requested, and
whether the amount charged is indeed the "lowest possible cost," the agency will have to set forth
in detail to the court why such a large fee is warranted. Although the court may require a narrowing
of the scope of the request, it is difficult to imagine that a fee bordering on almost a half a million
dollars is the lowest possible cost for producing even the large quantity of documents requested.
Moreover, the agency will have to justify document-by-document and line-by-line any exempted
material and is required to separate the disclosable material from that entitled to exemption.
Our suggestion, beyond what we have stated herein, (which is simply to restate the law, rather
than make factual conclusions) is thus thatthe S.C.C.J.C. utilize the remedies provided under FOIA.
If an agency has not followed the requirements of§ 30-4-30, and has indeed denied access to records
through the imposition of excessive fees, or is withholding non-exempt material from disclosure, an
action in circuit court for violation of FOIA, may result in enjoining such practice and imposing
attorneys fees upon the agency. See, Op. S.C. Atty. Gen. August 11, 2006. ["Any violation of the
Act ... authorizing a court to issue an injunction and to assess attorneys fees against the body."]

Robert D. Cook
Assistant Deputy Attorney General