Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ 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 such other functions and duties as the chief judge
of the court prescribes. 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 ALC
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 shall not hear any appeals from these decisions.
(E) A hearing officer
must issue an order containing findings of fact and conclusions
of law. If a hearing officer determines that records are not
subject to disclosure, such a determination shall constitute a
finding of good faith on the part of the public body or public
official, and shall act 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
ALC, a prevailing party may apply to the ALC to enforce the
determination. If the decision is appealed to the ALC, 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 30-4-100(c)."
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 Title 8, Chapter 13, 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.
(a)(1) Any
A person has a right to inspect
or, copy, or receive an electronic
transmission of any public record of a public body, except
as otherwise provided by Section 30-4-40, in accordance with
reasonable rules concerning time and place of access. This
right does not extend to individuals serving a sentence of
imprisonment in a state or county correctional facility in this
State, in any other state, or in a federal correctional
facility; however, this must not be construed to prevent such
persons from exercising their constitutionally protected rights,
including, but not limited to, their right to call for evidence
in their favor in a criminal prosecution.
(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.
(b) The public body may
establish and collect fees not to exceed the actual cost
of searching for or making copies of records. Fees charged by a
public body must be uniform for copies of the same record or
document a fee not to exceed one hundred dollars per
hour to fulfill a records request. The public body also may
charge a copy fee not to exceed the prevailing commercial rate
for copies made to fulfill a request, but may impose no copy
charge for documents provided electronically. The public body
may impose a charge not to exceed the prevailing commercial rate
for media, if any, on which public records provided to fulfill a
records request are stored and given to the person making the
request. However, Members of the General
Assembly may receive copies of records or documents at no charge
from public bodies when their request relates to their
legislative duties. The records must be furnished at
the lowest possible cost to the person requesting the
records. Records must be provided in a form that is
both convenient and practical for use by the person requesting
copies of the records concerned, if it is equally convenient for
the public body to provide the records in this form. Documents
may be furnished when appropriate without charge or at a reduced
charge where the agency determines that waiver or reduction of
the fee is in the public interest because furnishing the
information can be considered as primarily benefiting the
general public. Fees may not be charged for examination and
review to determine if the documents are subject to disclosure.
Nothing in this chapter prevents the custodian of the
public records from charging a reasonable hourly rate for making
records available to the public nor requiring a reasonable
deposit of these costs before searching for or making copies of
the records A deposit not to exceed twenty-five
percent of the total cost for reproduction of the records may be
required prior to the public body searching for or making copies
of records.
(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 the request of its
determination and the reasons therefor. for
it; provided, however, that if the record is more than two years
old at the date the request is made, the public body has twenty
days (excepting Saturdays, Sundays, and legal public holidays)
of the receipt to make this notification. Such a
determination shall must constitute 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 no later than thirty calendar days from the date on
which the request was granted, unless the records are more than
twenty-four months old, in which case the public body has no
later than thirty-five calendar days from the date on which the
request was granted to fulfill the request. If a deposit as
provided in subsection (b) is required by the public body, the
record must be furnished or made available for inspection or
copying no later than thirty calendar days from the date on
which the deposit is received, unless the records are more than
twenty-four months old, in which case the public body has no
later than thirty-five calendar days from the date on which the
deposit was received to fulfill the request. 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
within the fifteen ten days
(excepting Saturdays, Sundays, and legal public holidays)
allowed herein, the request must be considered
approved.
(d) The following
records of a public body must be made available for public
inspection and copying during the hours of operations of the
public body, unless the record is exempt pursuant to Section
30-4-40, without the requestor being required to make a
written request to inspect or copy the records when the
requestor appears in person:
(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;
and
(3)
documents identifying persons confined in any jail,
detention center, or prison for the preceding three
months;
(4)
documents identifying the cause of injury of a
person, including, but not limited to, investigations or reports
of suicides in any jail, detention center, or prison for the
preceding three months; and
(5)
all documents produced by the public body or its
agent that were distributed to or reviewed by any member of the
public body during a public meeting for the preceding six-month
period.
(e) A
public body complies with the provisions of subsection (d) by
placing the records in a form that is both convenient and
practical for use on a publicly available Internet website,
provided that the public body also must produce documents
pursuant to this section if requested to do so."
SECTION 4. Section 30-4-100 of the 1976 Code is amended to read:
"Section 30-4-100.
(a) Any A
citizen of the State may apply to the circuit court for
either or both a declaratory judgment
and, injunctive relief, or both,
to enforce the provisions of this chapter in appropriate cases
as long as such if the application is
made no later than one year following
after the date on which the of
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.
(b) A citizen
of this State may file a request for 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); and
(2)
to challenge the reasonableness of a fee
assessed pursuant to Section 30-4-30.
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.
(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, or
otherwise improper requests.
(bd)
If a person or entity seeking such relief
under this section prevails, he or it
may be awarded reasonable attorney fees and other costs of
litigation. If such the person or
entity prevails in part, the court may in its discretion award
him or it, unless otherwise barred by a
finding of good faith pursuant to Section 1-23-665(E),
reasonable attorney fees or an appropriate portion
thereof of them."
SECTION 5. Section 30-4-110 of the 1976 Code is amended to read:
"Section 30-4-110.
Any person or group of persons who willfully
violates the provisions of this chapter shall be deemed is
guilty of a misdemeanor and, upon conviction shall be fined not
more than one hundred dollars or imprisoned for not more than
thirty days for the first offense, shall be fined not more than
two hundred dollars or imprisoned for not more than sixty days
for the second offense and shall be fined three hundred dollars
or imprisoned for not more than ninety days for the third or
subsequent offense. A person aggrieved by a
violation of this chapter may bring a civil action in a court of
competent jurisdiction within three years after the occurrence
of the alleged violation. If the court 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 any actual or
compensatory damages, award punitive damages of five hundred
dollars and reasonable attorney fees to the person seeking the
right to inspect or receive a copy of a public record."
SECTION 6. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.