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Bill 913

Indicates Matter Stricken
Indicates New Matter

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

March 23, 2016

S. 913

S. Printed 3/23/16--S.

Read the first time January 13, 2016.

To whom was referred a Bill (S. 913) to amend Section 30-4-50 of the South Carolina Code of Laws, 1976, relating to the Freedom of Information Act, 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 30-4-50 of the 1976 Code is amended to read:

"Section 30-4-50.    (A)    Without limiting the meaning of other sections of this chapter, the following categories of information are specifically made public information subject to the restrictions and limitations of Sections 30-4-20, 30-4-40, and 30-4-70 of this chapter:

(1)    the names, sex, race, title, and dates of employment of all employees and officers of public bodies;

(2)    administrative staff manuals and instructions to staff that affect a member of the public;

(3)    final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(4)    those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the public body;

(5)    written planning policies and goals and final planning decisions;

(6)    information in or taken from any account, voucher, or contract dealing with the receipt or expenditure of public or other funds by public bodies;

(7)    the minutes of all proceedings of all public bodies and all votes at such proceedings, with the exception of all such minutes and votes taken at meetings closed to the public pursuant to Section 30-4-70;

(8)    reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed. Where a report contains information exempt as otherwise provided by law, the law enforcement agency may delete that information from the report.

(9)    notwithstanding any other provision of the law, data from a video or audio recording made by a law enforcement vehicle mounted recording device or dashboard camera that involves an officer involved incident resulting in death, injury, property damage, or the use of deadly force.

(a)    A law enforcement or public safety agency may apply to the Circuit Court for an order to prevent the disclosure of the video or audio recording data. Notice of the request and of the hearing must be provided to the person seeking the record. A hearing must be requested within fifteen days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request for disclosure and the hearing shall be held in camera.

(b)    The court may order the recording data not be disclosed upon a showing by clear and convincing evidence that the recording is exempt from disclosure as specified in Section 30-4-40(a)(3) and that the reason for the exemption outweighs the public interest in disclosure. A court may order the recording data be edited to redact specific portions of the data and then released, upon a showing by clear and convincing evidence that portions of the recording are not exempt from disclosure as specified in Section 30-4-40(a)(3).

(c)    A court order to withhold the release of recording data under this section must specify a definite time period for the withholding of the release of the recording data and must include the court's findings.

(d)    A copy of the order shall be made available to the person requesting the release of the recording data.

(10)    statistical and other empirical findings considered by the Legislative Audit Council in the development of an audit report.

(B)    No information contained in a police incident report or in an employee salary schedule revealed in response to a request pursuant to this chapter may be utilized for commercial solicitation. Also, the home addresses and home telephone numbers of employees and officers of public bodies revealed in response to a request pursuant to this chapter may not be utilized for commercial solicitation. However, this provision must not be interpreted to restrict access by the public and press to information contained in public records."

SECTION    2.    Section 30-4-40 of the 1976 code is amended to read:

"Section 30-4-40.    (a)    A public body may but is not required to exempt from disclosure the following information:

(1)    Trade secrets, which are defined as unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential and work products, in whole or in part collected or produced for sale or resale, and paid subscriber information. Trade secrets also include, for those public bodies who market services or products in competition with others, feasibility, planning, and marketing studies, marine terminal service and nontariff agreements, and evaluations and other materials which contain references to potential customers, competitive information, or evaluation.

(2)    Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy. Information of a personal nature shall include, but not be limited to, information as to gross receipts contained in applications for business licenses and, information relating to public records which include the name, address, and telephone number or other such information of an individual or individuals who are handicapped or disabled when the information is requested for person-to-person commercial solicitation of handicapped persons solely by virtue of their handicap, and any audio recording of the final statements of a dying victim in a call to 911 emergency services. Any audio of the victim's statements must be redacted prior to the release of the recording unless the privacy interest is waived by the victim's next of kin. This provision must not be interpreted to restrict access by the public and press to information contained in public records.

(3)    Records of law enforcement and public safety agencies not otherwise available by state and federal law that were compiled in the process of detecting and investigating crime if the disclosure of the information would harm the agency by:

(A)    disclosing identity of informants not otherwise known;

(B)    the premature release of information to be used in a prospective law enforcement action;

(C)    disclosing investigatory techniques not otherwise known outside the government;

(D)    by endangering the life, health, or property of any person; or

(E)    disclosing any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial Records, video or audio recordings, or other information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(A)    would interfere with prospective law enforcement proceeding;

(B)    would deprive a person of a right to a fair trial or an impartial adjudication;

(C)    would constitute an unreasonable invasion of personal privacy;

(D)    would disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation, by an agency conducting a lawful security intelligence investigation, or information furnished by a confidential source;

(E)    would disclose current techniques and procedures for law enforcement investigations or prosecutions, or would disclose current guidelines for law enforcement investigations or prosecutions if such disclosure would risk circumvention of the law;

(F)    would endanger the life or physical safety of any individual;

(G)    would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial.

(4)    Matters specifically exempted from disclosure by statute or law.

(5)    Documents of and documents incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property; however:

(a)    these documents are not exempt from disclosure once a contract is entered into or the property is sold or purchased except as otherwise provided in this section;

(b)    a contract for the sale or purchase of real estate shall remain exempt from disclosure until the deed is executed, but this exemption applies only to those contracts of sale or purchase where the execution of the deed occurs within twelve months from the date of sale or purchase;

(c)    confidential proprietary information provided to a public body for economic development or contract negotiations purposes is not required to be disclosed.

(6)    All compensation paid by public bodies except as follows:

(A)    For those persons receiving compensation of fifty thousand dollars or more annually, for all part-time employees, for any other persons who are paid honoraria or other compensation for special appearances, performances, or the like, and for employees at the level of agency or department head, the exact compensation of each person or employee;

(B)    For classified and unclassified employees, including contract instructional employees, not subject to item (A) above who receive compensation between, but not including, thirty thousand dollars and fifty thousand dollars annually, the compensation level within a range of four thousand dollars, such ranges to commence at thirty thousand dollars and increase in increments of four thousand dollars;

(C)    For classified employees not subject to item (A) above who receive compensation of thirty thousand dollars or less annually, the salary schedule showing the compensation range for that classification including longevity steps, where applicable;

(D)    For unclassified employees, including contract instructional employees, not subject to item (A) above who receive compensation of thirty thousand dollars or less annually, the compensation level within a range of four thousand dollars, such ranges to commence at two thousand dollars and increase in increments of four thousand dollars.

(E)    For purposes of this subsection (6), "agency head" or "department head" means any person who has authority and responsibility for any department of any institution, board, commission, council, division, bureau, center, school, hospital, or other facility that is a unit of a public body.

(7)    Correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.

(8)    Memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs; however, nothing herein may be construed as limiting or restricting public access to source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information under the provisions of this chapter and not specifically exempted by any other provisions of this chapter.

(9)    Memoranda, correspondence, documents, and working papers relative to efforts or activities of a public body and of a person or entity employed by or authorized to act for or on behalf of a public body to attract business or industry to invest within South Carolina; however, an incentive agreement made with an industry or business: (1) requiring the expenditure of public funds or the transfer of anything of value, (2) reducing the rate or altering the method of taxation of the business or industry, or (3) otherwise impacting the offeror fiscally, is not exempt from disclosure after:

(a)    the offer to attract an industry or business to invest or locate in the offeror's jurisdiction is accepted by the industry or business to whom the offer was made; and

(b)    the public announcement of the project or finalization of any incentive agreement, whichever occurs later.

(10)    Any standards used or to be used by the South Carolina Department of Revenue for the selection of returns for examination, or data used or to be used for determining such standards, if the commission determines that such disclosure would seriously impair assessment, collection, or enforcement under the tax laws of this State.

(11)    Information relative to the identity of the maker of a gift to a public body if the maker specifies that his making of the gift must be anonymous and that his identity must not be revealed as a condition of making the gift. For the purposes of this item, "gift to a public body" includes, but is not limited to, gifts to any of the state-supported colleges or universities and museums. With respect to the gifts, only information which identifies the maker may be exempt from disclosure. If the maker of any gift or any member of his immediate family has any business transaction with the recipient of the gift within three years before or after the gift is made, the identity of the maker is not exempt from disclosure.

(12)    Records exempt pursuant to Section 9-16-80(B) and 9-16-320(D).

(13)    All materials, regardless of form, gathered by a public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying. In addition to making available for public inspection and copying the materials described in this item, the public body must disclose, upon request, the number of applicants considered for a position. For the purpose of this item "materials relating to not fewer than the final three applicants" do not include an applicant's income tax returns, medical records, social security number, or information otherwise exempt from disclosure by this section.

(14)(A)    Data, records, or information of a proprietary nature, produced or collected by or for faculty or staff of state institutions of higher education in the conduct of or as a result of study or research on commercial, scientific, technical, or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where the data, records, or information has not been publicly released, published, copyrighted, or patented.

(B)    Any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of a state institution of higher education or any public or private entity supporting or participating in the activities of a state institution of higher education in the conduct of or as a result of study or research on medical, scientific, technical, scholarly, or artistic issues, whether sponsored by the institution alone or in conjunction with a governmental body or private entity until the information is published, patented, otherwise publicly disseminated, or released to an agency whereupon the request must be made to the agency. This item applies to, but is not limited to, information provided by participants in research, research notes and data, discoveries, research projects, proposals, methodologies, protocols, and creative works.

(C)    The exemptions in this item do not extend to the institution's financial or administrative records.

(15)    The identity, or information tending to reveal the identity, of any individual who in good faith makes a complaint or otherwise discloses information, which alleges a violation or potential violation of law or regulation, to a state regulatory agency.

(16)    Records exempt pursuant to Sections 59-153-80(B) and 59-153-320(D).

(17)    Structural bridge plans or designs unless: (a) the release is necessary for procurement purposes; or (b) the plans or designs are the subject of a negligence action, an action set forth in Section 15-3-530, or an action brought pursuant to Chapter 78 of Title 15, and the request is made pursuant to a judicial order.

(18)    Photographs, videos, and other visual images, and audio recordings of and related to the performance of an autopsy, except that the photographs, videos, images, or recordings may be viewed and used by the persons identified in Section 17-5-535 for the purposes contemplated or provided for in that section.

(19)    Private investment and other proprietary financial data provided to the Venture Capital Authority by a designated investor group or an investor as those terms are defined by Section 11-45-30.

(b)    If any public record contains material which is not exempt under subsection (a) of this section, the public body shall separate the exempt and nonexempt material and make the nonexempt material available in accordance with the requirements of this chapter.

(c)    Information identified in accordance with the provisions of Section 30-4-45 is exempt from disclosure except as provided therein and pursuant to regulations promulgated in accordance with this chapter. Sections 30-4-30, 30-4-50, and 30-4-100 notwithstanding, no custodian of information subject to the provisions of Section 30-4-45 shall release the information except as provided therein and pursuant to regulations promulgated in accordance with this chapter.

(d)    A public body may not disclose a "privileged communication", "protected information", or a "protected identity", as defined in Section 23-50-15 pursuant to a request under the South Carolina Freedom of Information Act. These matters may only be disclosed pursuant to the procedures set forth in Section 23-50-45.

SECTION    3.    This act takes effect upon approval by the Governor.        /

Renumber sections to conform.

Amend title to conform.

CHAUNCEY K. GREGORY for Committee.

Fiscal Impact Summary

This bill would have no expenditure impact on the general fund, federal funds, or other funds.

State Expenditure

This bill adds law enforcement vehicle mounted video and audio recordings to the list of specific categories of information that is to be made available to the public. It also allows hearings within the Circuit Court for injunctive relief from disclosure of such recordings, provided that the hearings are requested within fifteen days of receipt of disclosure requests.

Judicial Department. The Judicial Department reports that this bill will have no expenditure impact on the general fund, federal funds, or other funds. However, should implementation of the bill result in additional hearings, a backlog in the Circuit Court could ensue.

Department of Public Safety. The department indicates that this bill will have no expenditure impact on the general fund, federal funds, or other funds.

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

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.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 30-4-50 of the 1976 Code is amended to read:

"Section 30-4-50.    (A)    Without limiting the meaning of other sections of this chapter, the following categories of information are specifically made public information subject to the restrictions and limitations of Sections 30-4-20, 30-4-40, and 30-4-70 of this chapter:

(1)    the names, sex, race, title, and dates of employment of all employees and officers of public bodies;

(2)    administrative staff manuals and instructions to staff that affect a member of the public;

(3)    final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(4)    those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the public body;

(5)    written planning policies and goals and final planning decisions;

(6)    information in or taken from any account, voucher, or contract dealing with the receipt or expenditure of public or other funds by public bodies;

(7)    the minutes of all proceedings of all public bodies and all votes at such proceedings, with the exception of all such minutes and votes taken at meetings closed to the public pursuant to Section 30-4-70;

(8)    reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed. Where a report contains information exempt as otherwise provided by law, the law enforcement agency may delete that information from the report.

(9)    notwithstanding any other provision of the law, a video or audio recording made by a law enforcement vehicle mounted recording device or dashboard camera.

(a)    A law enforcement or public safety agency may apply to the Circuit Court to request injunctive relief to prevent the disclosure of the video or audio recording. A hearing must be requested within fifteen days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request for disclosure and the hearing shall be held in camera.

(b)    The court may order the recording not be disclosed upon a showing by clear and convincing evidence that the disclosure would harm the agency by a provision specified in Section 30-4-40(3).

(c)    A court order to withhold the release of a recording under this section must specify a definite time period for the withholding of the release of the recording and must include the court's findings as to the specific harm proven.

(d)    A copy of the order shall be made available to the person requesting the release of the recording.

(10)    statistical and other empirical findings considered by the Legislative Audit Council in the development of an audit report.

(B)    No information contained in a police incident report or in an employee salary schedule revealed in response to a request pursuant to this chapter may be utilized for commercial solicitation. Also, the home addresses and home telephone numbers of employees and officers of public bodies revealed in response to a request pursuant to this chapter may not be utilized for commercial solicitation. However, this provision must not be interpreted to restrict access by the public and press to information contained in public records."

SECTION    2.    This act takes effect upon approval by the Governor.

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