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Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 2, 2002
H. 3999
S. Printed 4/2/02--H. [SEC 4/3/02 9:00 PM]
Read the first time April 24, 2001.
To whom was referred a Bill (H. 3999) to amend Section 1-23-310, as amended, Code of Laws of South Carolina, 1976, relating to definitions in the Administrative Procedures Act, so as to revise the definitions, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. Section 30-4-30(c) of the 1976 Code is amended to read:
"(c) Each public body, upon written request for records made under this chapter, shall within fifteen ten days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of any such request notify the person making such request of its determination and the specific reasons therefor if the request is denied. Such a The determination shall constitute constitutes the final opinion of the public body as to the public availability of the requested public record and, if the request is granted, the record must be furnished or made available for inspection or copying. If written notification of the determination of the public body as to the availability of the requested public record is neither mailed nor personally delivered to the person requesting the document public record within the fifteen ten days allowed herein, the request must be considered approved granted."
SECTION 2. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend totals and title to conform.
JAMES H. HARRISON for Committee.
EXPLANATION OF IMPACT
A sampling of state agencies and local governments indicates that most agencies would be able to handle the shorter response time required without the need to incur additional costs. However, a few agencies may need to hire additional temporary help or a full-time employee depending on the volume and type of information requested in the future.
Approved By:
Don Addy
Office of State Budget
TO AMEND SECTION 1-23-310, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS IN THE ADMINISTRATIVE PROCEDURES ACT, SO AS TO REVISE THE DEFINITIONS FOR "AGENCY" AND "CONTESTED CASE" TO INCLUDE A PERSON CHALLENGING THE DENIAL BY A PUBLIC BODY OF THE RELEASE OF A PUBLIC RECORD UNDER THE FREEDOM OF INFORMATION ACT; TO AMEND SECTION 1-23-600, AS AMENDED, RELATING TO THE JURISDICTION OF THE ADMINISTRATIVE LAW JUDGE DIVISION, SO AS TO ADD JURISDICTION TO HEAR PROCEEDINGS BROUGHT WHEN A PERSON CHALLENGES THE DENIAL OF A REQUEST TO RELEASE PUBLIC RECORDS; TO AMEND SECTION 30-4-30, AS AMENDED, RELATING TO THE FREEDOM OF INFORMATION ACT AND THE PUBLIC'S RIGHT TO INSPECT OR COPY PUBLIC RECORDS, SO AS TO PROVIDE A SHORTER TIME FRAME FOR REQUESTS TO BE ANSWERED, TO PROVIDE THAT THE FAILURE TO RESPOND BARS THE ASSERTION OF A CLAIM OF EXEMPTION FROM DISCLOSURE EXCEPT IN LIMITED CIRCUMSTANCES, TO PROVIDE THAT WHEN A REQUEST IS GRANTED THE DOCUMENTS MUST BE MADE AVAILABLE IMMEDIATELY, AND TO PROVIDE THAT A REQUESTER WHOSE REQUEST FOR RECORDS IS DENIED MAY FILE A CONTESTED CASE PROCEEDING BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION AND, IF THE JUDGE RULES THE REQUEST MUST BE GRANTED, BE AWARDED ATTORNEY'S FEES AND COSTS FOR THE PROCEEDING BEFORE THE DIVISION; AND TO AMEND SECTION 30-4-100, RELATING TO THE COURT'S JURISDICTION UNDER THE FREEDOM OF INFORMATION ACT, SO AS TO ADD JURISDICTION OF THE ADMINISTRATIVE LAW JUDGE DIVISION TO HEAR CERTAIN CASES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-23-310(2) and (3) of the 1976 Code, as last amended by Act 359 of 1998, is further amended to read:
"(2) 'Agency' means each state board, commission, department or officer, other than the legislature or the courts, but to include the administrative law judge division, authorized by law to determine contested cases. For purposes of requesting public records pursuant to the Freedom of Information Act, 'agency' means 'public body' as defined in Section 30-4-20;
(3) 'Contested case' means a proceeding including, but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing. For purposes of requesting public records pursuant to the Freedom of Information Act, 'contested case' includes the assertion of a public body that a public record is exempt from disclosure under the act;"
SECTION 2. Section 1-23-600(B) of the 1976 Code, as last amended by Act 452 of 1994, is further amended to read:
"(B) An administrative law judge of the division shall preside over all hearings of contested cases as defined in Section 1-23-310 involving the departments of the executive branch of government in which a single hearing officer is authorized or permitted by law or regulation to hear and decide such cases, except those arising under the Occupational Safety and Health Act, those matters which are otherwise provided for in Title 56, or those other cases or hearings which are prescribed for or mandated by federal law or regulation, unless otherwise by law specifically assigned to the jurisdiction of the Administrative Law Judge Division. An administrative law judge shall preside over a proceeding initiated under the Freedom of Information Act when a public body denies a request to release certain public records."
SECTION 3. Section 30-4-30(c) of the 1976 Code is amended to read:
"(c) Each public body, upon written request for records made under this chapter, shall must within fifteen three days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of any such request notify the person making such the request of its determination and the specific reasons therefore if the request is denied. Such a The determination shall constitute constitutes the final opinion of the public body as to the public availability of the requested public record and, if the request is granted, the record must be furnished or made available immediately for inspection or copying. If written notification of the determination of the public body as to the availability of the requested public record is neither mailed nor personally delivered to the person requesting the document public record within the fifteen three days allowed herein, the request must be considered approved granted, and the public body may not thereafter except upon a showing of excusable neglect or compelling governmental interest in secrecy assert that the public record or any portion of it is exempt from mandatory disclosure. If the public body is unable to locate the requested public record or make it available within the three days allowed, it must state in writing, mailed or delivered personally to the person requesting the public record, the reason for the delay. Unless the person requesting the public record upon receipt of a delay notice from the public body consents to enlarge the time for making the public record available for inspection and copying, the public body must make the public record available within fifteen days, including Saturdays, Sundays and legal public holidays, of the request. If the public body does not make the record available for inspection or copying within the time required by this section, or the time agreed to between the public body and the requester, the public body may not thereafter, except upon a showing of excusable neglect or compelling governmental interest in secrecy, assert that the public record or any portion of it is exempt from the mandatory disclosure requirements of this section. If the person requesting records chooses to challenge the public body's claim that its response was untimely due to excusable neglect or the claim that there is a compelling governmental interest in secrecy as provided, the requester may obtain a declaration from the Administrative Law Judge Division by filing a contested case proceeding before the Administrative Law Judge Division pursuant to the Administrative Procedures Act. If the public body fails to prove to the satisfaction of the Administrative Law Judge that its untimely response was the consequence of excusable neglect, or that there is a compelling governmental interest in secrecy, the public body may pay the requester's attorney fees and costs for the proceeding before the administrative law judge, and provide the requested records immediately upon receipt of the order from the administrative law judge."
SECTION 4. Section 30-4-100(a) of the 1976 Code is amended to read:
"(a) Any citizen of the State may apply to the Administrative Law Judge Division or circuit court as appropriate for either or both a declaratory judgment and injunctive relief to enforce the provisions of this chapter in appropriate cases as long as such the application is made no later than one year following the date on which the alleged violation occurs or one year after a public vote in public session, whichever comes later. 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."
SECTION 5. This act takes effect upon approval by the Governor.
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