Are a South Carolina legislative delegation’s records and its members’ working papers open under FOIA?

Plain-English summary

An Anderson County legislative delegation asked whether its official documents were subject to South Carolina's Freedom of Information Act while individual legislators' documents were exempt. The Attorney General said a delegation was a public body under FOIA, so records it possessed had to be assessed as public records and disclosed on proper request unless an exemption applied. If a record mixed exempt and nonexempt information, the nonexempt material had to be separated and made available.

For individual General Assembly members and their immediate staffs, the opinion identified a narrower exception for memoranda, correspondence and working papers in their possession. It stressed that the exception was permissive: such material could be withheld but did not have to be. The quoted provision preserved access to otherwise public source documents, factual data, minutes and reports.

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: Was a legislative delegation a public body under FOIA?
A: Yes. The opinion relied on an earlier AG conclusion that legislative delegations were public bodies under the Act.

Q: Did every document held by the delegation have to be released?
A: The opinion said each document first had to meet the public-record definition. Public records not otherwise exempt had to be disclosed on a proper request.

Q: Could a delegation withhold an entire record containing some exempt material?
A: The opinion said it had to separate exempt from nonexempt information and make the nonexempt material available.

Q: Were legislators required to withhold their working papers?
A: No. The opinion described the individual-member exception as permissive, not mandatory, and noted limits for otherwise public source documents and factual material.

Background and statutory framework

The opinion began with FOIA's legislative purpose of openness and its definitions of public body and public record. It then applied the disclosure rule, the separation requirement and the specific exception for individual lawmakers' papers. The request concerned a possible broad records request; the opinion supplied the legal framework rather than reviewing particular documents.

Citations and references

• Section 30-4-30(a), the right to inspect or copy public records quoted by the opinion.
• Section 30-4-20(c), the public-record definition quoted by the opinion.
• § 30-4-40(b), the separation rule discussed by the opinion.
• Section 30-4-40(a)(8), the exception for individual legislators' papers quoted by the opinion.

Official title

Concerning whether the following statement is a correct interpretation of the Freedom of Information Act: while materials regarding official delegation business are subject to disclosure, documents of individual legislative members are exempt from disclosure.

Requester

The Honorable Ronald P. Townsend, Chairman, Anderson County Legislative Delegation

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-7-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98oct7townsend.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATIORNEY GENERAL

October 7, 1998

The Honorable Ronald P. Townsend
Chairman, Anderson County Legislative Delegation
Post Office Box 8002
Anderson, South Carolina 29622
RE:

Informal Opinion

Dear Representative Townsend:
Attorney General Condon has forwarded your opinion request to me for reply. You have informed this Office that the Anderson County Legislative Delegation recently received a telephone call with a request for copies of all documents relating to, created by, or otherwise concerning the delegation and its members. You state that you anticipate a written request on this matter in the future . You have reviewed the Freedom of Information Act (hereinafter the "FOIA") and believe that while materials regarding official delegation business are subject to disclosure, documents of individual legislative members are exempt from disclosure. You have asked whether this is a correct interpretation of the FOIA. At the outset, it is noted that in Section 30-4-15 of the South Carolina Code of Laws, the General Assembly has made the following findings with respect to freedom of information: 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 of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public pol icy. 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

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FA CS IM ILE: 803- 25 3-6283

Representative Townsend
Page 2
October 7, 1998
fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings. In view of the expressed legislative purpose, this Office has often noted that the FOIA "is a statute remedial in nature and must be liberally construed to carry out the purpose mandated by the General Assembly." Ops. tilly. Gen. dated November 14, 1989 and March 27, 1984.

I

Section 30-4-30(a) provides that "[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 ... " The term "public record" is defined in Section 30-4-20(c) to include: all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in possession of, or retained by a public body. ... 1 This Office has previously concluded that Legislative Delegations are "public bodies" for purposes of the FOIA and, thus, the provisions of the Act apply to such entities. Op. Any. Gen. dated September 6, 1984. We have also concluded that the possession of public records by a Legislative Delegation triggers the applicability of the FOIA and causes the various statutes and guidelines to come into play and records to be disclosed insofar as is possible. Op. tilly. Gen. dated October 6, 1993. Therefore, in regards to the disclosure of documents in possession of the Legislative Delegation, it must first be determined whether such documents meet the definition of "public record." If these documents are "public records" and not otherwise exempt from disclosure, then these documents would have to be disclosed upon proper request. Finally, if a public record in possession of the Legislative Delegation contains both exempt and nonexempt information, the Legislative Delegation must separate the exempt and nonexempt material and make the nonexempt material available in accordance with the requirements of the FOIA. S.C. Code Ann. § 30-4-40(b). Turning now to your question regarding the disclosure of documents of individual legislators, this subject is specifically addressed in the FOIA. Section 30-4-40(a)(8) provides that a public body may but is not required to exempt from disclosure the following information:

1

This section also excludes certain other records from the definition of "public record."

Representative Townsend
Page 3
October 7, 1998
(8)
Memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs; however, nothing herein may be construed as limiting or restricting public access to source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information under the provisions of this chapter and not specifically exempted by any other provisions of this chapter.

I

As you can see, if the documents in question are memoranda, correspondence, or working papers in the possession of individual members of the General.Assembly or their immediate staff, these documents need not be disclosed under the FOIA. I note that this particular statute is permissive rather than mandatory in that the records may be withheld from disclosure, but are not required to be. 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. With kindest regards, I remain

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