Are police body camera videos and cleared misconduct records public under South Carolina's FOIA?
Official title
Opinion addressing issues related to disclosure of public records specific to the South Carolina Criminal Justice Academy.
Requester
Requested by Director Lewis J. Swindler Jr., South Carolina Criminal Justice Academy.
Plain-English summary
The director of the South Carolina Criminal Justice Academy asked the Attorney General how three statutes fit together after the Academy received a public-records request for all documents given to the Law Enforcement Training Council (LETC) to make final agency decisions. The three questions: do video and audio recordings count as "documents," does body-worn camera footage become a public record once it is submitted to LETC for review, and if an officer is cleared of certification misconduct, must the Academy turn over the documents LETC reviewed before they are expunged?
On the first question, the office said yes in general. FOIA's definition of "public record" is broad, expressly covering tapes and recordings, so video or audio can be public records. The office suggested the Academy talk with the requester to pin down the scope, and noted responsive recordings should be produced unless they are closed by law or fall under a disclosure exemption.
On the second question, the answer is no. A separate statute (§ 23-1-240(G)(1)) flatly says data recorded by a body-worn camera is not a public record subject to FOIA. The office read that as a clear legislative choice that applies no matter which public body holds the footage, so sending it to LETC does not convert it into a disclosable record. Body-cam data can still be released to certain listed people, or at the discretion of a law enforcement agency, SLED, the Attorney General, or a solicitor, but it is not subject to a FOIA request.
On the third question, also no. The office stood by its earlier December 2018 opinion to the same Academy: § 23-23-150(L) exempts misconduct allegations and a law enforcement agency's excessive-force findings reported to the Academy from FOIA disclosure, declaring them "not a public document and not subject to disclosure" except to law enforcement or prosecutors or by court order. When LETC finds an officer not guilty or not at fault, the Academy is not required to disclose those allegations under FOIA, and that holds whether or not the records have already been expunged under § 23-23-150(M). The office added that a court would likely read the exemption narrowly, reaching only the specific misconduct allegations and excessive-force findings the statute describes.
What this means for you
The Criminal Justice Academy and LETC: The opinion confirms you are not required under FOIA to disclose body-worn camera footage submitted for review, nor misconduct allegations and excessive-force findings when an officer is cleared. It also advises clarifying the scope of broad records requests with the requester.
Records custodians at public bodies: The opinion is a clean statement that recordings generally are public records, but body-worn camera data is carved out of FOIA by statute regardless of who holds it. Custody by a reviewing body does not strip that statutory protection.
Journalists and members of the public requesting records: The opinion indicates that body-cam footage is not obtainable through a FOIA request (though it may be released at an agency's discretion or to listed recipients), and that misconduct allegations against an officer cleared by LETC are exempt. Other records, including non-exempt recordings, remain accessible.
Law enforcement officers: The opinion supports the confidentiality of misconduct allegations and excessive-force findings reported to the Academy when the officer is found not guilty or not at fault, independent of the thirty-day expungement requirement.
Common questions
Can I get police body camera video through a FOIA request in South Carolina?
Not as a matter of FOIA. The opinion concludes body-worn camera data is statutorily not a public record subject to FOIA (§ 23-1-240(G)(1)). It can be released at an agency's discretion or to certain listed recipients, but a FOIA request does not compel it.
Does sending body-cam footage to a review council make it public?
No. The opinion reads the exemption to apply regardless of which public body possesses the footage, so submitting it to LETC for review does not turn it into a disclosable public record.
Are recordings ever public records?
Yes. FOIA's definition of public record is broad enough to include video and audio recordings, so non-exempt recordings should be produced. Body-worn camera data is the specific exception.
If an officer is cleared of misconduct, can I see the allegation records?
Not under FOIA, per the opinion. Section 23-23-150(L) exempts misconduct allegations and excessive-force findings reported to the Academy, and the Academy is not required to disclose them whether or not they have been expunged.
Background and statutory framework
FOIA gives a right to inspect or copy any public record of a public body except as otherwise provided (§ 30-4-30(A)(1)), and defines "public record" broadly to include tapes, recordings, and other documentary materials regardless of form (§ 30-4-20(C)), subject to the exemptions in § 30-4-40. The office had previously opined that audio recordings can be public records.
Two statutes narrow that for the Academy's situation. Section 23-1-240(G)(1) provides that data recorded by a body-worn camera is not a public record subject to FOIA, while allowing discretionary release by listed agencies and officials. Section 23-23-150 (enacted as part of 2018 Act No. 215) sets up the framework for adjudicating law enforcement misconduct allegations; subsection (L) declares misconduct allegations and excessive-force findings reported to the Academy "not a public document and not subject to disclosure" except to law enforcement or prosecutors or by court order, and subsection (M) requires expungement within thirty days when an officer is found not guilty or not at fault. Applying the rule that the text best evidences legislative intent (State v. Henkel), the office concluded the body-cam and misconduct materials are exempt from FOIA disclosure, while a court would likely construe the misconduct exemption narrowly.
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-issues-related-to-disclosure-of-public-records-specific-to-the-south-carolina-criminal-justice-academy/
- Original PDF: https://www.scag.gov/media/4ihlxu4l/03596167.pdf
Original opinion text
Alan Wilson
Attorney General
May 31,2024
Director Lewis J. Swindler, Jr.
South Carolina Criminal Justice Academy
5400 Broad River Road
Columbia, SC 29212
Dear Director Swindler:
Attorney General Alan Wilson has referred your letter to the Opinions section.
The
request letter reads as follows:
I am writing to request an opinion regarding an interpretation of the interplay
between SC Code Section 30-4-3 0(D)(4), SC Code Section 23-23-1 50(M), and
SC Code Section 23-1 -240(G)(1).
South Carolina Code Section 30-4-30(D)(4): “The following records of a public
body must be made available for public inspection and copying during the hours
of operations of the public body, unless the record is exempt pursuant to Section
30-4-40 or other state or federal laws, without the requestor being required to
make a written request to inspect or copy the records when the requestor appears
in person: all documents produced by the public body or its agent that were
distributed to or reviewed by a member of the public body during a public
meeting for the preceding six-month period.”
South Carolina Code Section 23-23-1 50(M) states:
“If an officer with an
allegation of misconduct is found not guilty or not at-fault, the records of the
misconduct allegation must be expunged by the council within thirty days.”
South Carolina Code Section 23-1 -240(G)(1) states: “Data recorded by a bodyworn camera is not a public record subject to disclosure under the Freedom of
Information Act.”
The South Carolina Criminal Justice Academy (“CJA”) has received a request
pursuant to SC Code Section 3 0-4-3 0(D)(4) for all documents provided to the
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Director Lewis J. Swindler, Jr.
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May 31,2024
South Carolina Law Enforcement Training Council (“LETC”) for the members to
render final agency decisions.
Three questions arise from this request. First, whether a video recording or audio
recording meet the definition of “documents?” Second, whether body worn
camera video becomes a public record because it is submitted to LETC for its
review? Third, if an officer is found not to have committed certification
misconduct, is CJA required to produce the documents submitted to LETC to be
reviewed prior to expungement?
Law/Analysis
In response to your first question, this Office suggests conferring with the requestor
regarding the scope of the public records sought. The Freedom of Information Act (“FOIA”)
states, “A person has a right to inspect, copy, or receive an electronic transmission of any public
record of a public body, except as otherwise provided by Section 30-4-40, or other state and
federal laws, in accordance with reasonable rules concerning time and place of access.” S.C.
Code § 30-4-30(A)(l) (emphasis added).
“Public record” is a statutorily defined term which
“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(C) (emphasis added).
This Office has
opined that the term is certainly broad enough to include video or audio recordings. See Op. S.C.
Att’y Gen., 2017 WL 1368244 (April 5, 2017) (“It is this Office's opinion that a court would
likely find an audio tape recording of a school district meeting by an employee of the district to
be a public record of a public body subject to disclosure under the South Carolina Freedom of
Information Act.”).
To the extent that a video recording or audio recording is responsive to a
request for public records, they can and should be produced unless they are closed by law or
allowed to be exempted from disclosure. See S.C. Code § 30-4-40 (Matters exempt from
disclosure).
Your second question asks, “whether body worn camera video becomes a public record
because it is submitted to LETC for its review?” It is this Office’s opinion that “data recorded by
a body-worn camera is not a public record subject to disclosure under the Freedom of
Information Act.” S.C. Code § 23-1 -240(G)(1).
The General Assembly clearly expressed its
intent that data recorded by a body-worn camera is not disclosable under the FOIA without
regard to which public body may have possession of it. See State v. Henkel, 413 S.C. 9, 14, 774
S.E.2d 458, 461 (2015) (“The primary rule of statutory construction is to ascertain and give
effect to the intent of the legislature.”).
If such data is not a public record, S.C. Code § 30-4-
30(A)(1) does not require a public body to produce it. While this data is not subject to disclosure
under the FOIA, it may be released to certain persons listed in S.C. Code § 23-1 -240(G)(5), or
Director Lewis J. Swindler, Jr.
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May 31, 2024
“A law enforcement agency, the State Law Enforcement Division, the Attorney General, or a
circuit solicitor may release data recorded by a body-worn camera in its discretion.” S.C. Code §
23-1 -240(G)(3) (emphasis added).
Your third question asks, “if an officer is found not to have committed certification
misconduct, is CJA required to produce the documents submitted to LETC to be reviewed prior
to expungement.” It is this Office’s opinion that the FOIA does not require the disclosure of an
allegation of misconduct where the LETC finds an officer not guilty or not at-fault. This Office
issued an opinion to you dated December 6, 2018, which concluded that this information is not
subject to disclosure under the FOIA.
[T]he General Assembly recently passed 2018 Act No. 215 which established a
framework for the adjudication of allegations of misconduct of a law enforcement
officer and for conducting a contested case hearing, if one is requested. S.C. Code
Ann. § 23-23-150. Section 23-23-1 50(L) clearly exempts the allegations of
misconduct and information which must be reported to the Academy regarding
the use of excessive force from disclosure as follows:
In addition to the allegations of misconduct specified in this
section, any finding by a law enforcement agency as to the use of
excessive force by a law enforcement officer must be reported to
the academy by the appropriate
law enforcement agency or
department within thirty days of the finding, the information of
which must be maintained by the academy for investigative and
personnel hiring purposes.
This information is not a public
document and not subject to disclosure other than to a law
enforcement or prosecution agency, or attorneys representing a law
enforcement or prosecution agency, except by court order. This
exemption does not preclude the disclosure of any information
contained in these records from another source or by another
provision of law.
S.C. Code Ann. § 23-23-1 50(L) (emphasis added). It is this Office’s opinion that
a court would find the language “not a public document and not subject to
disclosure” clearly and unambiguously demonstrates legislative intent to exempt
such documents from disclosure under the S.C. FOIA. While it is this Office's
opinion that Section 23-23-1 50(L) provides an exemption from the S.C. FOIA's
disclosure requirements, a court would likely construe this exemption narrowly to
apply only to the specific information described therein. Burton, supra. Thus, a
court would likely find that only the allegations of misconduct and findings of a
Director Lewis J. Swindler, Jr.
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May 31,2024
law enforcement agency as to the use of excessive force by an officer which are
reported to and maintained by the Academy are exempted from disclosure.
Op. S.C. Atfy Gen., 2018 WL 6587190, at 7-8 (December 6, 2018).
Your letter quotes S.C.
Code § 23-23-1 50(M) to say those records “must be expunged by the council within thirty days.”
Regardless of whether expungement occurs prior to the CJA receiving a public records request, it
remains this Office’s opinion that CJA is not required to disclose allegations of misconduct and
findings of a law enforcement agency as to the use of excessive force under the FOIA. See Op.
S.C. Att'y Gen., 2017 WL 5203263 (October 31, 2017) (“This Office recognizes a long-standing
rule that it will not overrule a prior opinion unless it is clearly erroneous or there has been a
change in applicable law.”).
Sincerely,
.
Matthew Houck
Assistant Attorney General
REVIEWED AND APPROVED BY:
llobert D. Cook
Solicitor General