Are statements collected during a South Carolina State Election Commission audit automatically exempt from a public-records request?

Plain-English summary

The South Carolina State Election Commission asked whether statements and other information gathered during an election audit could be withheld under the Freedom of Information Act's exemption for information of a personal nature. The Attorney General concluded that there is no blanket exemption for all audit interviews.

Section 30-4-40(a)(2) requires a fact-specific balance. The decision-maker must weigh the individual's privacy interest against the public interest in learning about government activity. Courts construe FOIA exemptions narrowly, and the AG noted that South Carolina's Supreme Court has rejected treating every internal investigation report as automatically private.

Because the result depends on the content of each interview and the surrounding facts, the AG could not decide in advance which State Election Commission records are exempt. That determination belongs to a court with a factual record. The opinion also recognized the Commission's concern that confidentiality may help auditors obtain candid information and suggested that a specific statutory exemption would offer more certainty than the general privacy provision.

What this means for you

State Election Commission auditors

The opinion does not permit the Commission to promise that every interview or statement will remain confidential under FOIA. Each record must be evaluated for the privacy interest it contains and the public interest served by disclosure.

County election officials and interviewees

Participation in an election audit does not by itself make a statement exempt. Personal information may qualify for protection when disclosure would unreasonably invade privacy and would not advance FOIA's purpose, but the result depends on the particular facts.

Public-records officers

The opinion calls for a record-by-record or portion-by-portion analysis rather than withholding an entire category of election-audit material. The privacy exemption is discretionary and must be narrowly construed in light of FOIA's broad-disclosure policy.

Journalists and election observers

The public interest side of the balance asks whether disclosure would help protect the public from secret government activity. Information about how election officials performed public duties may carry a different weight than home addresses, personal telephone numbers, or other details unrelated to official conduct.

Common questions

Q: Are all State Election Commission audit interviews confidential? A: No. The opinion says the privacy exemption does not make every interview automatically exempt from disclosure.

Q: What test applies to an election-audit record?
A: A court balances the individual's privacy interest against the public interest in disclosure, including whether release would advance FOIA's purpose of protecting the public from secret government activity.

Q: Can the Election Commission make the final legal determination itself? A: The Commission must respond to records requests, but the AG said the ultimate fact-dependent balance is one for a court of competent jurisdiction. The opinion could not decide hypothetical records in advance.

Q: Does another statute expressly make Election Commission audit interviews confidential? A: The request stated that no specific confidentiality provision then covered these interviews. The opinion contrasted that gap with express protections for records gathered by other state audit and oversight offices.

Q: What did the AG suggest if the Commission needs predictable confidentiality? A: The opinion suggested seeking a specific exemption from the General Assembly, similar to provisions protecting certain records of other audit agencies.

Background and statutory framework

South Carolina FOIA gives a person the right to inspect or copy a public body's records unless an exemption or another law applies. Section 30-4-40(a)(2) allows a public body to withhold information of a personal nature when disclosure would unreasonably invade personal privacy, but it also says the provision must not be read to restrict public and press access generally.

The State Election Commission conducts reviews, audits, and postelection analysis of county election boards under section 7-3-20(D)(3). Section 7-3-20(D)(19) also requires methods for auditing statewide election results and publication of completed audit reports on the Commission's website.

The opinion distinguishes that authority from statutes that expressly protect records gathered by the Legislative Audit Council, Inspector General, or State Auditor. Without a comparable Election Commission provision, the general FOIA privacy balance controls.

Citations and references

Statutes:

• S.C. Code Ann. § 30-4-40(a)(2) (Supp. 2022)
• S.C. Code Ann. § 30-4-30(A)(l) (Supp. 2022)
• S.C. Code Ann. § 7-3-20 (D)(3)
• S.C. Code Ann. § 7-3-20(D)(19)
• S.C. Code Ann. § 2-15-62 (2005)
• § 1-6-100 (Supp. 2022)

Cases:

• South Carolina Tax Commission v. Gaston Copper Recycling Corporation, 316 S.C. 163, 447 S.E.2d 843 (1994)
• Fowler v. Beasley, 322 S.C. 463, 472 S.E.2d 630 (1996)
• Campbell v, Marion County Hosp. Dist., 354 S.C. 274, 580 S.E.2d 163 (Ct. App. 2003)
• Burton v. York County Sheriff's Department, 358 S.C. 339, 594 S.E.2d 888 (Ct. App. 2004)
• S.C. Lottery Comm’n v. Glassmeyer, 433 S.C. 244, 857 S.E.2d 889 (2021)
• City of Columbia v. American Civil Liberties Union of South Carolina, Inc., 323 S.C. 384, 475 S.E.2d 747 (1996)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-information-gathered-during-a-state-election-commission-audit-is-exempt-from-the-south-carolina-freedom-of-information-act-under-section-30-4-40-a-2-of-the-south-carolina-code/
• Original PDF: https://www.scag.gov/media/1icdetgv/03312436.pdf

Original opinion text

Alan Wilson
Attorney General

June 14, 2023
Howard M. Knapp

Executive Director
South Carolina Election Commission

Post Office Box 5987
Columbia, South Carolina 29201
Dear Mr. Knapp:

We received your letter requesting an opinion from this Office as to whether “[u]nder S.C. Code
§ 30-4-40(a)(2), can statements and information provided by persons involved in the elections

process to SEC auditors in the course of an audit authorized under Sec. 7-3-20(D)(3), when what is provided is not otherwise protected by another provision of law, be considered ‘information of a personal nature’ subject to the SEC’s discretionary exemption from disclosure under FOIA”? Law/Analysis

Section 30-4-40 of the South Carolina Code (2007 & Supp. 2022) is contained in the South Carolina Freedom of Information Act (“FOIA”). The Legislature expressed the purpose of FOIA in section 30-4-15 of the South Carolina Code (2007): 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 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. The South Carolina Supreme Court discussed the purpose of FOIA in South Carolina Tax Commission v. Gaston Copper Recycling Corporation, 316 S.C. 163, 169, 447 S.E.2d 843, 846 (1994), stating, “The purpose of the FOIA is to protect the public from secret government activity.” In another opinion, the South Carolina Supreme Court determined: “South Carolina’s FOIA was

designed to guarantee the public reasonable access to certain activities of the government.” Fowler v. Beasley, 322 S.C. 463, 468, 472 S.E.2d 630, 633 (1996).

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Howard M. Knapp
Page 2

June 14, 2023

Our courts also recognize FOIA “is remedial in nature and should be liberally construed to carry out the purpose mandated by the legislature.” Campbell v, Marion County Hosp. Dist., 354 S.C. 274, 281, 580 S.E.2d 163, 166 (Ct. App. 2003). Generally, FOIA requires public bodies to disclose their records unless such records fall within the enumerated exemptions provided in FOIA. S.C. Code Ann. § 30-4-30(A)(l) (Supp. 2022) (“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.”). Section 30-4-40 of the South Carolina Code lists the enumerated exceptions in which a public body may but is not required to disclose information under FOIA. However, our courts instruct that “consistent with FOIA’s goal of broad disclosure, the exemptions from its mandates are to be narrowly construed.” Burton v. York County Sheriffs Dep’t, 358 S.C. 339, 348, 594 S.E.2d 888, 893 (Ct. App. 2004).

Included in this list of exceptions under section 30-4-40 is the following: Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy. Information of a personal

nature shall include, but not be limited to, information as to gross receipts contained in applications for business licenses, information relating to public records which include the name, address, and telephone number or other such information of an individual or individuals who are handicapped or disabled when the information is requested for person-to-person commercial solicitation

of handicapped persons solely by virtue of their handicap, and any audio recording of the final statements of a dying victim in a call to 91 1 emergency services. Any audio of the victim’s statements must be redacted prior to the release of the recording unless the privacy interest is waived by the victim’s

next of kin. This provision must not be interpreted to restrict access by the public and press to information contained in public records. S.C. Code Ann. § 30-4-40(a)(2) (Supp. 2022). As our Court of Appeals explained in Burton v. York County Sheriffs Department 358 S.C. 339, 352, 594 S.E.2d 888, 895 (Ct. App. 2004), Section 30-4-40(a)(2) does not specifically list or define the types of records, reports, or other information that should be classified as personal or private information exempt from disclosure. We must, therefore, resort to general privacy principles, which examination involves a balancing of conflicting interests-the interest of the individual in privacy on the one hand against the interest of the public’s need to know on the other.

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 v. South Carolina Dep’t of Pub. Safety. 355 S.C. 321, 586 S.E.2d 108 (2003). However, ‘“one ofthe primary limitations placed on the right of privacy

Howard M. Knapp
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June 14, 2023

is that it does not prohibit the publication of matter which is of legitimate public or general interest.’” Society of Prof 1 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)). Indeed, the Court has held that, as a matter of law, “if a person, whether willingly or not, becomes an actor in an event of public or

general interest, ‘then the publication of his connection with such an occurrence is not an invasion of his right to privacy.’” Doe v. Berkeley Publishers, 329 S.C. 412, 414, 496 S.E.2d 636, 637 (1998) (quoting Meetze, 230 S.C. at 337, 95 S.E.2d at 609).

In balancing personal rights to privacy and public rights to information, our courts consider whether the evidence “demonstrates disclosure would further the FOIA’s purpose of protecting the public from secret government activity.” Glassmeyer v. City of Columbia, 414 S.C. 213, 223, 777 S.E.2d 835, 841 (Ct. App. 2015). If the court finds the information is personal in nature and releasing such information would not further FOIA’s purpose, then the exemption is likely to apply. Id.

(finding disclosure of home addresses, personal telephone numbers, and personal e-

mail addresses of city mayor applicants constitutes an unwarranted invasion of an individual’s privacy and therefore, exempt from disclosure under privacy exemption). According to our Supreme Court, “This is ... a determination necessarily based on evidence.” S.C. Lottery Comm’n v. Glassmeyer, 433 S.C. 244, 251, 857 S.E.2d 889, 893 (2021) (refusing to uphold the circuit

court’s judgment on the pleadings as to whether lottery winners’ personal information is covered under the privacy exemption because there was not an opportunity to develop a factual record upon

which to base the court’s decision). Furthermore, “[t]he determination of whether documents or portions thereof are exempt from the FOIA must be made on a case-by-case basis.”

City of

Columbia v. Am. C.L. Union of S.C., Inc., 323 S.C. 384, 387, 475 S.E.2d 747, 749 (1996).

With this information in mind, we now consider whether the information provided to the State Election Commission (“SEC”) through an audit would qualify under this exception to FOIA. Section 7-3-20 of the South Carolina Code (Supp. 2022) sets forth the responsibilities of the

executive director of the SEC. Included in these responsibilities is a requirement that the executive director

conduct reviews, audits, or other postelection analysis of the county boards of voter registration and elections, as established pursuant to Article 1, Chapter 5,

to ensure those boards' compliance with the requirements with applicable state or

federal

law

or

State

Election

Commission

policies,

procedures,

or

standardized processes with regard to the conduct of elections or the voter registration process by all persons involved in the elections process .... S.C. Code Ann. § 7-3-20 (D)(3). In your letter, you also informed us that the Legislature recently

amended section 7-3-20 adding a requirement that the executive director

Howard M. Knapp
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June 14, 2023

establish methods of auditing election results, which may include risk-limiting audits, hand-count audits, results verification through independent third-party vendors that specialize in election auditing, ballot reconciliation, or any other method deemed appropriate by the executive director. Election result audits must be conducted in all statewide elections after the election concludes, but prior to certification by the State Board of Canvassers, and may be performed following any other election held in the State at the discretion of the executive director. Once completed, audit reports must be published on the commission’s website. S.C. Code Ann. § 7-3-20(D)(19). You state that in order to comply with these requirements, the SEC established an auditing division. As a part of conducting such audits, the SEC staff will interview people involved with the election process. As such, you state the following concern: It is important that the SEC auditors will be able to obtain full and frank statements from those Interviewed during an audit. Therefore, those who are interviewed must be confident that the substance of their statements will remain

confidential. This is a principle recognized by South Carolina Law in many places where authority to conduct audits is granted to state agencies. You continue by citing other provisions of law requiring records gathered in the process of an audit to be kept confidential. S.C. Code Ann. § 2-15-62 (2005) (requiring confidentiality of records

obtained by members of the Legislative Audit Council); § 1-6-100 (Supp. 2022) (protecting the identity of persons reporting information to the Office of the Inspector General); § 1 1-7-35 (201 1) (making the audit working papers and memoranda of the State Auditor confidential). However, you note at the present time there is not a specific provision explicitly protecting the confidentiality of the information collected during an audit conducted by the SEC. Therefore, you question whether such information may be exempt from disclosure under the privacy exemption from FOIA.

While section 30-4-40(a)(2) lists some examples of information deemed personal or private and therefore exempt from FOIA, this section does not include an exhaustive list. Therefore, in accordance with guidance from our courts, it must be determined whether the privacy interests outweigh the public’s interests with respect to the information. As we noted above, this determination must be made on a case-by-case basis and in accordance with the facts. As we stated in numerous opinions, this Office “does not have the jurisdiction of a court to investigate and determine facts.” Op. S.C. Atty, Gen., 2015 WL 4497734 (July 2, 2015). Accordingly, only a court can balance the conflicting interests of the interviewee’s personal privacy and the public’s interest

in the information they provide. However, we note in City of Columbia v. American Civil Liberties Union of South Carolina, Inc., 323 S.C. 384, 387, 475 S.E.2d 747, 749 (1996), our Supreme Court

rejected the contention that internal investigation reports of law enforcement agencies are per se

Howard M. Knapp
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June 14, 2023

exempt from FOIA under the privacy exemption. The Court stressed, “The determination of whether documents or portions thereof are exempt from the FOIA must be made on a case-by-case basis.” Id, Accordingly, we do not believe a court would adopt the contention that all information contained in every interview is per se exempt.

As such, we believe a court would look at the

information contained in each interview to determine whether the public’s right to that information

is outweighed by the individual's privacy interests.
Conclusion

As explained above, whether information gathered by the SEC in the process of conducting an audit falls within the privacy exemption under FOIA must be determined on a casc-by-casc basis weighing the interviewee’s privacy interests against the need to protect the public from secret

activity. “Because this Office does not have the authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual questions.” Op. Atfy Gen,. 1999 WL 986738 (S.C.A.G. Sept. 3, 1999). Therefore, this balancing of interests must be performed by a court of competent jurisdiction who adjudicate and investigate the facts. Nonetheless, we understand that without the ability to keep information obtained through the audit process confidential, the SEC may face difficulty in obtaining information relevant to its audit. Therefore, as an alternative to relying on the privacy exemption, which may or may not afford protection for such information, the SEC may wish to seek a specific exemption from the Legislature similar to those provided to other agencies and as referenced in your letter. Sincerely,

Cydncy Milling

Assistant Attorney General

REVIEWED AND APPROVED BY:

/MAP .
-Robert D. Cook
Solicitor General

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