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Jan 17, 2020

In test of revised FOIA, judge rules against last-minute agenda additions

My January column for the South Carolina Press Association:
https://scpress.org/in-test-of-revised-foia-judge-rules-against-last-minute-agenda-additions/


A recent common pleas court decision appears to be the first application of recent changes to South Carolina’s Freedom of Information Law, and requirements for public notice of agenda items at public meetings. And since an appeal is planned, it may establish an important precedent on this issue.
Changes to South Carolina’s Freedom of Information Act in 2015 added a requirement that public bodies subject to the law publicly release an agenda at least 24 hours in advance of any regularly scheduled meeting, and that any additions to the agenda similarly be announced publicly at least 24 hours before the meeting.


The changes came after the South Carolina Supreme Court ruled in 2014 that while FOIA required bodies to announce the time and place of meetings in advance, it did not require the advance release of an agenda of items that would be considered at those meetings. The 2015 amendments were meant to effectively nullify this ruling.

The revised law also allows an agenda item to be added once the meeting itself begins by a vote of two-thirds of the members of the body voting. This is limited, however. “If the item is one upon which final action can be taken at the meeting 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,” the statute says, “… it only may be added to the agenda by a two-thirds vote of the members present and voting and upon a finding by the body that an emergency or an exigent circumstance exists if the item is not added to the agenda.”

A test of this new provision came during the May 7, 2018, meeting of the North Augusta City Council, when the council unanimously voted to add the New Savannah Bluff Lock and Dam to a list of projects that could be funded by the then-proposed extension of the county’s Capital Projects Sales Tax, which was later approved. The dam project had not been among the projects listed in the proposed resolution included in the agenda that was released before the meeting. (Despite the city’s action, the Army Corps of Engineers announced in October 2019 that it would replace the dam with a set of river-width weirs. The state of South Carolina and the city of Augusta, Ga., have both sued to stop the Corps’ plan.)

After voting to add the dam to the list, the council voted to approve the resolution with the revised list of projects.

North Augusta resident H. Perry Holcomb sued, arguing that the addition without prior notice violated the new FOIA provision requiring an agenda in advance.

Justice Clifton B. Newman agreed in an Oct. 8 decision. Newman observed that while the revised FOIA now allows for the addition of items to the agenda for a public meeting that will be acted on at the meeting by a two-thirds vote, it requires a finding of “emergency or an exigent circumstance.” “Although the first prong, a two-thirds vote, appears to have been satisfied, no finding was made by the body that an emergency or an exigent circumstance existed,” Newman wrote. “Without satisfying both prongs, the amendment attempted by the Defendants at the May 7, 2018 City Council meeting violates FOIA, entitling Plaintiff to declaratory and injunctive relief and consequently attorney’s fees and costs.”

In reaching this conclusion, Justice Newman rejected the city’s argument that the “agenda” for the meeting was the initial, summary notice of the meeting, which mentioned the resolution but not the specific projects that would be funded. Newman noted that the city also posted an “agenda” online that included the list of projects and the details of other items to be considered at the meeting.
Justice Newman enjoined the council from acting similarly in the future, and later awarded Holcomb $10,518 in attorney fees and $699.92 in court costs.

The council voted unanimously on January 6 to appeal the decision. At that meeting, city attorney Kelly Zier alleged that the ruling would impede the council’s ability to operate. “As a result of that, quite frankly, it takes out of Council’s hands the ability to do business in public,” she said, according to the North Augusta Star. “It means that whatever is presented on the agenda by way of ordinance of resolution, Council can either approve it as provided, decline it as provided, but cannot make changes at a meeting to move forward with the business of the city. We think that is wrong and that is a misinterpretation of the law.”

Holcomb responded at the meeting. “This city council is free to amend anything it wants by FOIA,” the Star reported he said. “All you have to do is follow the laws therein.”

The appeal to the South Carolina Court of Appeals is likely to take at least several months.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication and is Of Counsel to Fenno Law in Charleston/Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 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.

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