What use is the Freedom of Information Act if government agencies are allowed to fail to preserve public records or even intentionally destroy them so they won’t have to disclose them?

In Ballard v. Newberry County, decided January 13, 2021, the SC Court of Appeals found that 1) The Public Records Act (a statute that is separate from but related to the Freedom of Information Act) does not authorize a civil cause of action to enforce its provisions, and 2) the Freedom of Information Act (FOIA) does not authorize a civil cause of action where a government agency has destroyed records and therefore cannot produce them….

The Court of Appeals suggests that the criminal offenses found in the Public Records Act, which are never enforced, are sufficient to ensure that government agencies comply with the Act’s requirements and not destroy the records. Furthermore, the Court says that to allow a civil cause of action would “invite countless copycat suits against public bodies both large and small.”

Really?

It’s true that the Public Records Act does not authorize a civil cause of action for violations. FOIA does, however, and FOIA’s enforcement provisions are meaningless if a government agency can fail to keep public records or even destroy them to avoid complying with the statute…

The Freedom of Information Act Does Not Prohibit the Destruction of Public Records

SC’s Freedom of Information Act requires government agencies to provide public records upon request unless they are exempted under FOIA.

Public records are defined as “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.”

There is also a list of information that is exempt from FOIA – “public records that have been destroyed” is not on that list, however. You would think that, in requiring government agencies to produce specific types of records upon request, there would be an implied duty to take care to preserve those records and not to destroy them, but the SC Court of Appeals disagrees.

Newberry County Destroys Records, No Remedy

The Court of Appeals does not draw a distinction between 1) information that is intentionally destroyed and 2) information that is not preserved because the agency did not implement a plan to preserve the records.

In the Newberry County case, the failure to produce the records was the result of the county’s failure to implement a system for preserving records, which made it impossible to comply with the request:

After the County resolved a legal dispute with a different magistrate, the County eliminated a stipend for certain magistrates and began the process of doing away with part-time magistrate positions. Ballard filed a FOIA request with the County in December 2014. Among other things, she sought communications to and from the county administrator pertaining to magistrate positions over a roughly five year period.

The County had problems collecting all of the potentially relevant documents. The administrator’s computer crashed in March 2014, months before Ballard’s FOIA request, and the County did not have a central email server, a system for “backing up” and archiving email messages, or a system for retaining text messages…

So, one county employee’s computer crashed, there was no central server, no system for archiving email messages, and no system for retaining text messages. Sound reasonable?

It will be exceedingly rare to discover “smoking gun” type evidence of a county’s willful destruction of public records to avoid disclosure, but, even if that had been the case, the SC Court of Appeals’ opinion would deny the right to civil enforcement under FOIA.

The Public Records Act Prohibits Destruction of Records, But…

FOIA does not expressly prohibit the destruction of evidence, but the Public Records Act does. It also requires public bodies to implement “standards, procedures, techniques, and schedules” to manage records that are subject to disclosure under FOIA:

The Public Records Act consists of sections 30-1-10 through -180 of the South Carolina Code. Among other things, it defines a “public body,” identifies the legal custodian of public records, and explains that the Department of Archives and History is responsible for establishing efficient and economical “standards, procedures, techniques, and schedules” for public bodies to manage the ocean of information they produce. S.C. Code Ann. §§ 30-1-10(B), -20, & -80 (2007).

The Public Records Act, as opposed to FOIA, does not authorize a civil action to enforce its provisions. It would make sense to read FOIA, in conjunction with the Public Records Act, as authorizing a civil cause of action when a public body cannot disclose public records because they are violating the Public Records Act – also a violation of a criminal statute.

The Court of Appeals doesn’t think so, though:

We agree with the circuit court that there is also no implied civil right to enforce these statutes. A bellwether case on implied causes of action is Whitworth v. Fast Fare Markets of South Carolina, Inc., which explains “the general rule [] that a statute which does not purport to establish a civil liability, but merely makes [a] provision to secure the safety or welfare of the public as an entity is not subject to a construction establishing a civil liability.” 289 S.C. 418, 420, 338 S.E.2d 155, 156 (1985) (quoting 73 Am. Jur. 2d, Statutes § 432 (1974)).

Why?

Well, it is a crime to violate certain provisions of the Public Records Act. Even though the Court of Appeals knows that the criminal provisions of the Public Records Act are not and probably never will be enforced and therefore there are no enforcement mechanisms, the Court of Appeals found that there are sufficient enforcement mechanisms:

The Public Records Act also contains enforcement mechanisms. It is a crime to unlawfully remove, deface, or destroy a public record. See S.C. Code Ann § 30-1-30 (2007). It is also a crime for a public official to refuse or willfully neglect to perform any of his or her statutory duties. See S.C. Code Ann. § 30-1-140 (2007). If someone refuses to surrender a public record to the record’s legal custodian or to the Department of Archives, that is a separate crime, and the act empowers certain individuals to bring a civil action for the record’s surrender.

Are the criminal provisions of the Public Records Act “sufficient” enforcement mechanisms if they are not enforced by law enforcement and solicitors’ offices?

Was anyone in Newberry County charged criminally for violation of the Public Records Act in this case? If not, it lays bare the lie of the Court of Appeals in stating that the criminal provisions, which are not enforced, are sufficient.

FOIA Authorizes a Civil Remedy for Failure to Disclose Public Records

FOIA does authorize civil actions to enforce its provisions, authorizing any citizen of SC to ask the court for declaratory relief, injunctive relief, or both, and authorizing attorney’s fees and costs if the lawsuit is successful.

(A) A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of this chapter in appropriate cases if the application is made no later than one year after the date of the alleged violation or one year after a public vote in public session, whichever comes later. Upon the filing of the request for declaratory judgment or injunctive relief related to provisions of this chapter, the chief administrative judge of the circuit court must schedule an initial hearing within ten days of the service on all parties. If the hearing court is unable to make a final ruling at the initial hearing, the court shall establish a scheduling order to conclude actions brought pursuant to this chapter within six months of initial filing. The court may extend this time period upon a showing of good cause. The court may order equitable relief as it considers appropriate, and a violation of this chapter must be considered to be an irreparable injury for which no adequate remedy at law exists.

The Court cannot force the county to produce public records that it has destroyed, whether it was due to incompetence or bad faith. The Court can make a finding that the plaintiff was entitled to the records, make a finding that those records were not preserved pursuant to the Public Records Act, find in favor of the plaintiff, and order the county to pay the full amount of reasonable attorney fees and costs.

The Court of Appeals Says We Should Trust the Government to Do the Right Thing

The Court of Appeals says, “We do not see an urgent need for future guidance here.”

One of the paradoxes of practicing law is that we often find ourselves asking the government (a judge) to rule against the government (the police, Newberry County, the Solicitor’s Office). It should never be a surprise when the government goes out of its way to protect the government at the expense of the people.

The Court of appeals found that FOIA’s enforcement provisions do not apply to the Public Records Act’s requirement to preserve public records, because:

• The Public Records Act’s criminal provisions are sufficient, even though they are not enforced by law enforcement, and
• To allow the plaintiff to enforce the Public Records Act’s requirement to preserve public records would “invite countless copycat suits filed against public bodies both large and small.”

The dismissive language the Court uses here is telling – “copycat suits,” as if we are talking about serial killers who are coming for the government? The Court does not want to allow SC citizens to enforce the Public Records Act, because it would open the floodgates to… what? Citizens enforcing the Public Records Act?

The result here sends a clear message to public bodies in SC that they do not need to comply with the Public Records Act and, worse, they can destroy public records instead of preserving them, without consequences.

Freedom of Information Act Attorney in Charleston, SC

Charleston, SC criminal defense lawyer Grant B. Smaldone’s law practice is focused on criminal defense cases in SC state and federal courts – FOIA requests and dealing with government agencies is a regular part of our criminal defense practice and independent criminal defense investigations.

If you need to make a FOIA request for public documents or if a SC public body is refusing to provide public records to you at a reasonable cost, call now at (843) 808-2100 or contact us via email for a consultation today.