Indicates Matter Stricken

Indicates New Matter

 

Committee Report

March 29, 2023

H. 3866

Introduced by Rep. Rutherford

 

S. Printed 03/29/23--S.                                                                        [SEC 3/30/2023 11:19 AM]

Read the first time March 08, 2023

 

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The committee on SENATE Judiciary

To who was referred a Bill (H. 3866) to amend the South Carolina Code of Laws by adding Section 1-7-95 so as to clarify that, when the Attorney General proceeds in the public interest, the Attorney, etc., respectfully

Report:

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 deleting SECTION 3.

Renumber sections to conform.

Amend title to conform.

 

LUKE RANKIN for Committee.

 

statement of estimated fiscal impact

Explanation of Fiscal Impact

 

State Expenditure

This bill establishes that when the Office of the Attorney General brings or defends an action in the name of the State of South Carolina, the Attorney General acts in the public interest of the State and not as the legal representative or attorney of any department or agency of state government. Therefore, the Attorney General cannot be considered to have possession, custody, or control over state agency documents or electronically stored information. This bill does list an exception for actions brought under Section 39-5-140 on behalf of a department or agency of state government. Further, this bill establishes that at the conclusion of the investigation or litigation, the Attorney General may return, destroy, or maintain information within applicable document retention policies.

 

This bill will have no fiscal impact on the Attorney General's Office, as any additional costs can be managed within existing appropriations.

This fiscal impact has been updated to reflect that the House of Representatives adopted the House Judiciary Committee amendment.

 

State Expenditure

This bill establishes that when the Office of the Attorney General brings or defends an action in the name of the State of South Carolina, the Attorney General acts in the public interest of the State and not as the legal representative or attorney of any department or agency of state government. Therefore, the Attorney General cannot be considered to have possession, custody, or control over state agency documents or electronically stored information. This bill does list an exception for actions brought under Section 39-5-140 on behalf of a department or agency of state government. Further, this bill establishes that at the conclusion of the investigation or litigation, the Attorney General may return, destroy, or maintain information within applicable document retention policies.

 

This bill will have no fiscal impact on the Attorney General's Office, as any additional costs can be managed within existing appropriations.

 

 

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

 

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A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 1-7-95 SO AS TO CLARIFY THAT, WHEN THE ATTORNEY GENERAL PROCEEDS IN THE PUBLIC INTEREST, THE ATTORNEY GENERAL DOES NOT UNDERTAKE REPRESENTATION OF STATE AGENCIES AND CANNOT BE CONSIDERED TO HAVE POSSESSION, CUSTODY, OR CONTROL OVER STATE AGENCY DOCUMENTS OR ELECTRONICALLY STORED INFORMATION; AND BY ADDING SECTION 39-5-55 SO AS TO SPECIFY that THE ATTORNEY GENERAL IS ACTING IN THE PUBLIC INTEREST OF THE STATE IN UNFAIR TRADE PRACTICE PROCEEDINGs, AND TO PROVIDE AN EXCEPTION.

 

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

 

SECTION 1.  Article 1, Chapter 7, Title 1 of the S.C. Code is amended by adding:

 

    Section 1-7-95.  (A)  Notwithstanding any other provision of law, when the Attorney General brings or defends an action in the name of the State of South Carolina pursuant to any power granted by common law, the Constitution of this State, or any provision of law, the Attorney General acts in the public interest of the State of South Carolina and not as the legal representative or attorney of any department or agency of state government, including the executive, legislative, and judicial branches, or any of the boards connected therewith. Such departments, agencies, or boards are not parties to these actions, and the documents or electronically stored information of such departments, agencies, or boards are not in the possession, custody, or control of the Attorney General.

    (B)  This section does not affect the ability of the Attorney General to bring or defend an action in a proprietary capacity on behalf of and representing any such department, agency, or board.

 

SECTION 2.  Article 1, Chapter 5, Title 39 of the S.C. Code is amended by adding:

 

    Section 39-5-55. Proceedings instituted by the Attorney General under this article are proceedings in the public interest of the State of South Carolina for purposes of Section 1-7-95, except actions expressly brought under Section 39-5-140 in the name and on behalf of a department or agency of state government or any of the boards connected therewith.

 

SECTION 3.  Section 39-5-80 of the S.C. Code is amended to read:

 

    Section 39-5-80. To accomplish the objectives and to carry out the duties prescribed by this article, the Attorney General, in addition to other powers conferred upon him by this article, may issue subpoenas to any person, administer an oath or affirmation to any person, conduct hearings in aid of any investigation or inquiry, prescribe such forms and promulgate such rules and regulations as may be necessary, which rules and regulations shall have the force and effect of law;  provided, however, that none of the powers conferred by this article shall be used for the purpose of compelling any person to furnish testimony or evidence which might tend to incriminate him or subject him to a penalty or forfeiture;  and provided, further, that information obtained pursuant to the powers conferred by this article shall not be made public or disclosed by the Attorney General or his employees beyond the extent necessary for law-enforcement purposes in the public interest.  At the conclusion of the investigation or litigation, the Attorney General may return information obtained pursuant to the powers conferred by this article to the producing party, destroy the information, or maintain it in accordance with applicable document retention policies.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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