The requirements for notice and agendas of meetings of public bodies have been amended under the Freedom of Information Act, 30-4-80.
The requirements for notice and agendas of meetings of public bodies have been amended under the Freedom of Information Act, 30-4-80. For the full text of the new law, please click here. This amendment became effective on June 8, 2015, and applies to any meeting held after that date.
Here are a few important items:
This legislation is in response, in part, to a recent case, Lambries v Saluda County Council. The Court of Appeals in Lambries held that FOIA prohibits public bodies from amending their agendas during their meetings, but the Supreme Court reversed, finding that a public body could amend an agenda during a meeting with a majority vote. The amended FOIA now makes it much more difficult to amend an agenda during a meeting. We believe that it is likely that a finding of emergency or exigent circumstances will be closely scrutinized, particularly given that the matter could be addressed in a properly noticed meeting within the following 24 hours.
Because special purpose districts and school districts typically adopt resolutions on a single reading, the ability to add items to an agenda within 24 hours prior to a meeting or at a meeting is quite limited.
Donohue v City of North Augusta - Specific Purpose for an Executive Session
The South Carolina Supreme Court recently held in Donohue v City of North Augusta that describing the purpose of an executive session as a "proposed contractual matter" is not specific enough to comply with the Freedom of Information Act.
South Carolina Code §30-4-70(b) defines specific purpose as, "a description of the matter to be discussed as identified in items (1) through (5) of subsection (a)." Items 1-5 include, among other things:
30-4-70(b) goes on to explain that if an executive session is held pursuant to either Sections 30-4-70(a)(1) or 30-4-70(a)(5), then "the identity of the individual or entity being discussed is not required."
If the specific purpose of an executive session is given in general terms, particularly when Sections 30-4-70(a)(2)-(4) are being invoked, then a court will likely find the FOIA to be violated, "FOIA is not satisfied merely because citizens have some idea of what a public body might discuss in private." (citing Quality Towing, Inc. v. City of Myrtle Beach). It is not clear from the decision whether the identity of parties to contracts or the specific location of property must be identified. Likewise, the extent to which details of pending or threatened litigation must be disclosed are not addressed by this opinion.
For additional information concerning the matters discussed above, contact any of the firm's Public Finance Attorneys.