Important FOIA Update

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:

1. Agendas are required for all regular and special meetings and must be posted on a bulletin board in a publicly accessible place in the government's administrative office or council chambers, and provided to requesting media and other persons at least 24 hours in advance of the meeting. This is a technical change, in that it requires a printed agenda even for regular meetings be posted and available at least 24 hours before the meeting.
2. The agenda for every regular and special meeting must also be posted on the public body's website, if it has one. This is a brand new requirement. Note that posting on the website is required in addition to posting on a bulletin board and notifying the media. Failure to post an agenda for a meeting on the website may well mean that any action taken at that meeting is invalid.
3. Once an agenda is posted, additional items may be added to the agenda (a) at least 24 hours in advance of the meeting, following the steps outlined in 1 and 2 above, or (b) added to the agenda at the meeting in question if approved by a 2/3 vote of the members of the governing body present and voting at that meeting.
4. In the event that an item proposed to be added to an agenda would constitute final action on the matter, or if the item is one in which there has not been and will not be an opportunity for public comment with prior public notice given (in accordance items 1 and 2 above) prior to final action, then that item may only be added to the agenda by (a) a 2/3 vote of the members present and voting and (b) a finding by the body that an emergency or an exigent circumstance exists if the item is not added to the agenda.

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:

1. the discussion of employment-related matters,
2. discussion of negotiations related to proposed contractual agreements and proposed sale or purchase of property and matters related to legal advice or attorney client privilege,
3. discussion regarding security personnel or devices,
4. criminal misconduct matters, and
5. proposed expansions or relocations of prospective business projects or industries.

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.