Reference is to Printer's Date 04/05/16-S.
Amend the bill, as and if amended, by deleting 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 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.
(a)(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 another state, or in a federal
correctional facility; however, this may not be construed to
prevent those individuals from exercising their constitutionally
protected rights, including, but not limited to, their right to
call for evidence in their favor in a criminal prosecution under
the South Carolina Rules of Criminal Procedure.
(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)(B)
The public body may establish and collect fees
not to exceed the actual cost of searching for or making
copies of records as provided for in this
section. The public body may establish and collect
reasonable fees not to exceed the actual cost of the search,
retrieval, and redaction of records. The public body shall
develop a fee schedule to be posted online. The fee for the
search, retrieval, or redaction of records shall not exceed the
prorated hourly salary of the lowest paid employee who, in the
reasonable discretion of the custodian of the records, has the
necessary skill and training to perform the request. Fees
charged by a public body must be uniform for copies of the same
record or document and may not exceed the prevailing
commercial rate for the producing of copies. Copy charges may
not apply to records that are transmitted in an electronic
format. If records are not in electronic format and the public
body agrees to produce them in electronic format, the public
body may charge for the staff time required to transfer the
documents to electronic format. 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
reasonably anticipated cost for reproduction of the records may
be required prior to the public body searching for or making
copies of records.
(c)(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 the
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 twenty-four months 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 This
determination shall must constitute the
final opinion of the public body as to the public availability
of the requested public record and, if,
however, the determination is not required to include a final
decision or express an opinion as to whether specific portions
of the documents or information may be subject to redaction
according to exemptions provided for by Section 30-4-40 or other
state or federal laws. 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 final determination was provided, 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 final determination was provided. 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, electronically transmitted, nor personally
delivered to the person requesting the document within the
fifteen days allowed herein, time set forth
by this section, the request must be considered approved
as to non-exempt records or information. Exemptions from
disclosure as set forth in Section 30-4-40 or by other state or
federal laws are not waived by the public body's failure to
respond as set forth in this subsection. The various response,
determination, and production deadlines provided by this
subsection are subject to extension by written mutual agreement
of the public body and the requesting party at issue, and this
agreement shall not be unreasonably withheld.
(d)(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 or other state or federal laws,
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 a jail, detention center, or prison
for the preceding three months; and
(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.
(a)(A)
Any Except for violations arising from
Section 30-4-30 or challenges to exemption under Section
30-4-40, 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 circuit court shall also have exclusive jurisdiction to
hear a challenge to (1) a determination that an organization is
not a public body as defined by Section 30-4-20(a), and (2) data
from a video or audio recording made by a law enforcement
vehicle mounted recording device or dashboard camera. 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)(B)
If a person or entity seeking such
relief under this section prevails, he or
it may be awarded reasonable attorney's fees and other
costs of litigation specific to the request. If
such the person or entity prevails in
part, the court may in its discretion award him or
it reasonable attorney's fees or an appropriate portion
thereof of those attorney's fees."
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 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) 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.
(E)
This chapter does not apply to a local
governmental entity of a subdivision of this state or local
government."
SECTION 7. This act
takes effect on October 1, 2016. /
Renumber sections to conform.
Amend title to conform.