Published July 2024

The South Carolina Freedom of Information Act is pretty clear, stating that “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.”

But government officials seem to find inventive ways to dodge the disclosure requirements under the law. This means that those seeking information from the government must resort to the courts to reject these “creative” interpretations of the FOIA law and order disclosure of the information sought.

A recent example of a government official twisting the FOIA to restrict disclosure was—amazingly—by none other than a state circuit court judge.

The situation is detailed in a June 26 ruling from a three-judge panel of the South Carolina Court of Appeals, which reversed a circuit court judge’s ruling that her court’s failure to schedule a hearing in a state Freedom of Information Act lawsuit within ten days of the suit being filed meant that the case had to be dismissed. The ten-day deadline, the appeals court held, was meant to expedite FOIA lawsuits in service of parties seeking disclosure, not provide a means for dismissal of such lawsuits.

The lawsuit was initially filed on July 28, 2021 by The State senior editor Paul Osmundson,  alleging that the Lexington-Richland 5 school district’s approval in executive session of a settlement agreement with former Superintendent Christina Melton violated FOIA. The FOIA statute providesthat “the chief administrative judge of the circuit court must schedule an initial hearing [of a FOIA lawsuit] within ten days of the service on all parties.” The law allows for extensions up to six months, and longer “upon a showing of good cause.” Failure to schedule a hearing within these limits, the statute says, is “an irreparable injury for which no adequate remedy at law exists.”

Osmundson’s lawsuit was filed in the midst of the Covid-19 pandemic, when court schedules were chaotic and delays were common. So no hearing was held in the case for almost a year after the initial complaint was filed. During a hearing held online on July 18, 2022, the school district held that the case should be dismissed. Three months later, Circuit Judge Alison Lee dismissed the lawsuit because “a scheduling order to conclude the action [had to] be held within six months,” yet “no hearing was held within the allotted timeframe[.]”

The appeals court unanimously reversed, saying that a plaintiff in a state FOIA case should not suffer because the court did not schedule a hearing within the required timeframe. “We find the plain meaning of this statute requires the chief administrative judge of the circuit court to schedule an initial hearing within ten days,” Judge Paula H. Thomas wrote for the unanimous court. “Our Legislature has not mandated a requirement that a party filing a FOIA action be the party responsible for scheduling an initial hearing and we decline to impose such a requirement.”

The point of the ten-day deadline, the appellate court held, is to expedite processing of such cases for the benefit of FOIA requester, not to punish the requester due to a court’s failure to schedule a hearing. “Based on the plain language of the statute, we find the circuit court erred in dismissing the action,” the court wrote. Thus the appeals court reversed the trial court’s dismissal and sent the case back to that court to continue.

Status Quo for Free Speech at Supreme Court

The U.S. Supreme Court ended its term in late June and early July with some blockbuster decisions, including major rulings regarding administrative law, presidential immunity and bribery of public officials.

There were also several contentious First Amendment-related cases that were expected to result in important rulings regarding freedom of speech. But in the end, these cases were either dismissed or sent back to lower courts for further development, without blockbuster rulings on free speech issues.

But the court did reaffirm application of First Amendment free speech principles to the Internet, extending this to specifically include operators of social media sites. In a unanimous ruling remanding two cases that challenged laws in Florida and Texas that limited social media sites’ ability to restrict or remove content on their sites, the Court quoted another case for the idea that “‘[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles’ of the First Amendment ‘do not vary.’” The opinion by Justice Elena Kagan then succinctly stated this principle: “The government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey.”

While the majority decision sent the cases regarding the Florida and Texas laws back to the lower courts for more detailed analyses, the opinion makes it clear that the Supreme Court does not expect either law to survive First Amendment scrutiny.

In other, non-press cases, the Supreme Court held that courts should not impede speakers’ claims of retaliation by government officials, and that government officials may not use their powers to suppress groups whose messages they dislike.  The Court also dismissed on standing grounds a case over government officials seeking to persuade social media sites to remove content, effectively meaning that such efforts can continue.

As I wrote in June, there are still looming questions of the Supreme Court justices’ positions regarding several First Amendment issues, particularly regarding the “actual malice” standard for libel. But for now, the free speech principles of the First Amendment continue to hold as they have for the past several decades.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication, an affiliate of USC’s Joseph F. Rice School of Lawand in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.i