S 913 Session 121 (2015-2016) S 0913 General Bill, By L.Martin, Davis, Hembree, Fair and Malloy A BILL TO AMEND SECTION 30-4-50 OF THE SOUTH CAROLINA CODE OF LAWS, 1976, RELATING TO THE FREEDOM OF INFORMATION ACT, TO INCLUDE LAW ENFORCEMENT VEHICLE MOUNTED VIDEO AND AUDIO RECORDINGS IN THE LIST OF SPECIFIC CATEGORIES OF INFORMATION THAT IS TO BE MADE AVAILABLE TO THE PUBLIC, AND TO PROVIDE THAT LAW ENFORCEMENT MAY APPLY FOR INJUNCTIVE RELIEF FROM THE CIRCUIT COURT IF THERE IS CLEAR AND CONVINCING EVIDENCE OF SPECIFIC HARM FROM THE RELEASE OF THE RECORDING.
Indicates New Matter AMENDED May 26, 2016 S. 913 Introduced by Senators L. Martin, Davis, Hembree, Fair and Malloy S. Printed 5/26/16--H. [SEC 5/27/16 11:14 AM] Read the first time April 12, 2016.
TO AMEND SECTION 30-4-50 OF THE SOUTH CAROLINA CODE OF LAWS, 1976, RELATING TO THE FREEDOM OF INFORMATION ACT, TO INCLUDE LAW ENFORCEMENT VEHICLE MOUNTED VIDEO AND AUDIO RECORDINGS IN THE LIST OF SPECIFIC CATEGORIES OF INFORMATION THAT IS TO BE MADE AVAILABLE TO THE PUBLIC, AND TO PROVIDE THAT LAW ENFORCEMENT MAY APPLY FOR INJUNCTIVE RELIEF FROM THE CIRCUIT COURT IF THERE IS CLEAR AND CONVINCING EVIDENCE OF SPECIFIC HARM FROM THE RELEASE OF THE RECORDING. Amend Title To Conform Be it enacted by the General Assembly of the State of South Carolina: SECTION 1. Article 5, Chapter 23, Title 1 of the 1976 Code is amended by adding: "Section 1-23-665. (A) There is created within the Administrative Law Court the Office of Freedom of Information Act Review. The Chief Judge of the Administrative Law Court shall serve as the Director of the Office of Freedom of Information Act Review. The hearing officers and staff must be appointed, hired, contracted, and supervised by the chief judge of the court, shall exercise their adjudicatory functions, duties, and responsibilities under the auspices of the Administrative Law Court as directed by the chief judge, and shall perform other functions and duties prescribed by the chief judge of the court. All employees of the office shall serve at the discretion of the chief judge. The chief judge is solely responsible for the administration of the office, the assignment of cases, and the administrative duties and responsibilities of the hearing officers and staff. Notwithstanding another provision of law, the chief judge also has the authority to promulgate rules governing practice and procedures before the Office of Freedom of Information Act Review. These rules are subject to review as are the rules of procedure promulgated by the Supreme Court pursuant to Article V of the South Carolina Constitution, 1895. (B) Notwithstanding another provision of law, the hearing officers shall conduct hearings in accordance with Chapter 23, Title 1, the Administrative Procedures Act, and the rules of procedure for the Office of Freedom of Information Act Review, at suitable locations as determined by the chief judge. (C) The hearing officers are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. The sole grounds for discipline and sanctions for hearing officers are those contained in the Code of Judicial Conduct in Rule 502, Rule 7 of the South Carolina Appellate Court Rules. The Commission on Judicial Conduct, under the authority of the Supreme Court, shall handle complaints against hearing officers for possible violations of the Code of Judicial Conduct in the same manner as complaints against other judges. Notwithstanding another provision of law, an administrative law judge or hearing officer, and the judge's or hearing officer's spouse or guest, may accept an invitation to, and attend, a judicial-related or bar-related function, or an activity devoted to the improvement of the law, the legal system, or the administration of justice. (D) Appeals from decisions of the hearing officers must be filed with the Administrative Law Court pursuant to the court's appellate rules of procedure. Recordings of all hearings must be made part of the record on appeal, along with all evidence introduced at hearings, and copies will be provided to parties to those appeals at no charge. The chief judge may not hear appeals from these decisions. (E) A hearing officer shall issue an order containing findings of fact and conclusions of law. If a hearing officer determines that records are not subject to disclosure, the determination constitutes a finding of good faith on the part of the public body or public official, and acts as a complete bar against the award of attorney's fees or other costs to the prevailing party should the hearing officer's determination be reversed on appeal. If a hearing officer determines that a record is subject to disclosure, the order must set forth in writing what information must be disclosed and when that disclosure must occur. If the decision of the hearing officer is not timely appealed to the Administrative Law Court, a prevailing party may apply to the Administrative Law Court to enforce the determination. If the decision is appealed to the Administrative Law Court, and the administrative law judge upholds a decision ordering disclosure of information, the administrative law judge may enforce the hearing officer's determination as the court considers appropriate. If the administrative law judge rules that the determination must be enforced, the court may hold a person, the responsible officer, or the public official of a public body in civil contempt for failing to comply with the provisions of Section 30-4-30 or an order of the court relating to Section 30-4-30. The administrative law judge also may award attorney's fees pursuant to Section 30-4-110. (F) This section does not apply to data from a video or audio recording made by a law enforcement vehicle mounted recording device or dashboard camera." SECTION 2. Section 1-23-500 of the 1976 Code is amended to read: "Section 1-23-500. There is created the South Carolina Administrative Law Court, which is an agency and a court of record within the executive branch of the government of this State. The court shall consist of a total of six administrative law judges. The administrative law judges shall be part of the state employees retirement system. For purposes of Chapter 13 of Title 8, the Administrative Law Court is considered part of the unified judicial system." SECTION 3. Section 30-4-30 of the 1976 Code is amended to read:
"Section 30-4-30. (2) A public body is not required to create an electronic version of a public record when one does not exist to fulfill a records request.
(1) minutes of the meetings of the public body for the preceding six months;
(2) all reports identified in Section 30-4-50(A)(8) for at least the fourteen-day period before the current day;
(3) documents identifying persons confined in (4) all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period. (E) A public body that places the records in a form that is both convenient and practical for use on a publicly available Internet website is deemed to be in compliance with the provisions of subsection (D), provided that the public body also shall produce documents pursuant to this section upon request." SECTION 4. Section 30-4-100 of the 1976 Code is amended to read:
"Section 30-4-100.
SECTION 5. Section 30-4-110 of the 1976 Code is amended to read:
"Section 30-4-110. (A) The Office of Freedom of Information Act Review has exclusive jurisdiction over all cases, except cases involving data from a video or audio recording made by a law enforcement vehicle mounted recording device or dashboard camera where the circuit court has exclusive jurisdiction, arising from Section 30-4-30 or challenges to exemptions under Section 30-4-40 subject only to appellate review consistent with Section 1-23-380. A person aggrieved by a violation of Section 30-4-30 or challenges to exemptions under Section 30-4-40 may file a request for a hearing before the Office of Freedom of Information Act Review within one year after the occurrence of the alleged violation. (B) A citizen of this State may file a request for a hearing with the Office of Freedom of Information Act Review pursuant to Section 1-23-665 in the following instances: (1) to seek specific enforcement of a request made pursuant to Section 30-4-30 when the public body from which the records are requested fails to comply with the time limits provided in Section 30-4-30(C), (2) to challenge the reasonableness of a fee assessed pursuant to Section 30-4-30, and (3) to challenge a public body's determination that the requested information is not a public record under Section 30-4-20(c), or that the requested information is exempt from disclosure under Section 30-4-40. (C) A public body may file a request for hearing with the Office of Freedom of Information Act Review pursuant to Section 1-23-665 to seek relief from unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests, or where it has received a request but it is unable to make a good faith determination as to whether the information is exempt from disclosure. (D) If a request for disclosure may result in the release of records or information exempt from disclosure under Section 30-4-40(a)(1), (2), (4), (5), (9), (14), (15), or (19), a person or entity with a specific interest in the underlying records or information shall have the right to request a hearing with the Office of Freedom of Information Act Review or to intervene in an action previously filed. (E) If a person or entity seeking relief under this section prevails, the hearing officer may order: (1) equitable relief as he considers appropriate, (2) actual or compensatory damages, or (3) reasonable attorney's fees and other costs of litigation specific to the request, unless otherwise barred by a finding of good faith pursuant to Section 1-23-665(E). (F) If the person or entity prevails in part, he may be awarded reasonable attorney's fees or other costs of litigation specific to the request, or an appropriate portion thereof, unless otherwise barred. (G) If the hearing officer finds that the public body has arbitrarily and capriciously violated the provisions of this chapter by refusal or delay in disclosing or providing copies of a public record, it may, in addition to actual or compensatory damages or equitable relief, impose a civil fine of five hundred dollars. (H) A determination of the Office of Freedom of Information Act Review may be appealed to the Administrative Law Court or enforced by an administrative law judge pursuant to Section 1-23-665. The service of a notice of appeal to the Administrative Law Court acts to automatically stay matters decided in the order, judgment, decree or decision on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree or decision. This automatic stay continues in effect until the final judgement or decision of the Administrative Law Court or unless otherwise ordered by the administrative law judge. Further appeals to the Court of Appeals are subject to Section 1-23-610 and the South Carolina Appellate Court Rules." SECTION 6. Section 30-2-50 of the 1976 Code is amended to read: "Section 30-2-50. (A) A person or private entity shall not knowingly obtain or use personal information obtained from a state agency, a local government, or other political subdivision of the State for commercial solicitation directed to any person in this State. (B) Each state agency, local government, and political subdivision of the State shall provide a notice to all requestors of records pursuant to this chapter and to all persons who obtain records pursuant to this chapter that obtaining or using public records for commercial solicitation directed to any person in this State is prohibited. (C) All state agencies, local governments, and political subdivisions of the State shall take reasonable measures to ensure that no person or private entity obtains or distributes personal information obtained from a public record for commercial solicitation. (D) A person knowingly violating the provisions of subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined an amount not to exceed five hundred dollars or imprisoned for a term not to exceed one year, or both.
SECTION 7. This act takes effect on October 1, 2016.
|