Disabato v. S.C. Ass'n of Sch. Adm'rs, No. 27286.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJUSTICE HEARN:
Citation746 S.E.2d 329,404 S.C. 433
PartiesRocky DISABATO, d/b/a Rocky D., Appellant, v. SOUTH CAROLINA ASSOCIATION OF SCHOOL ADMINISTRATORS, Respondent. State ex rel. Alan Wilson, Attorney General, Intervenor. Appellate Case No. 2011–198146.
Docket NumberNo. 27286.
Decision Date17 July 2013

404 S.C. 433
746 S.E.2d 329

Rocky DISABATO, d/b/a Rocky D., Appellant,
v.
SOUTH CAROLINA ASSOCIATION OF SCHOOL ADMINISTRATORS, Respondent.
State ex rel. Alan Wilson, Attorney General, Intervenor.
Appellate Case No. 2011–198146.

No. 27286.

Supreme Court of South Carolina.

Heard Oct. 3, 2012.
Decided July 17, 2013.


[746 S.E.2d 331]


Kevin A. Hall, Karl S. Bowers, Jr., and M. Todd Carroll, of Womble, Carlyle, Sandridge, & Rice, LLP, of Columbia, for Appellant.

Kenneth L. Childs, John M. Reagle, and Keith R. Powell, of Childs & Halligan, PA, of Columbia, for Respondent.


Attorney General Alan McCrory Wilson, Solicitor General, Robert D. Cook and Deputy Solicitor General J. Emory Smith, Jr., Columbia, for Intervenor.

[746 S.E.2d 332]



Scott Thomas Price, of Columbia, for Amicus Curiae, South Carolina School Boards Association.


Jerald A. Jacobs, of Pillsbury Winthrop Shaw Pittman, LLP, of Washington, DC, for Amicus Curiae, American Society of Association Executives.


Jerry Jay Bender, of Baker, Ravenel & Bender, LLP, of Columbia, for Amicus Curiae, South Carolina Press Association and South Carolina Broadcasters Association.


Marsha A. Ward, of Atlanta, GA, for Amicus Curiae, The Student Press Law Center and Reporters Committee for Freedom of the Press in Support of Petitioner Rocky Disabato.


JUSTICE HEARN:

[404 S.C. 439]This case requires us to reconcile two competing principles of our democratic tradition. First, embodied in the South Carolina Freedom of Information Act, Title 30, Chapter 4 of the South Carolina Code (the FOIA), is the principle of an open, transparent system of government, vital to maintaining an informed electorate and preventing the secret exercise of governmental power with its potential corruption. Juxtaposed against this principle are the rights of citizens to freely speak and associate embodied in the First Amendment to the United States Constitution. We must decide whether the FOIA as applied to the South Carolina Association of School Administrators (SCASA), a non-profit corporation engaged in political advocacy, unconstitutionally infringes upon SCASA's First Amendment speech and association rights. We hold the FOIA does not violate those rights and reverse the circuit court's order granting SCASA's motion to dismiss.

FACTUAL/PROCEDURAL BACKGROUND

SCASA is a non-profit, South Carolina corporation whose purpose is to advocate on legislative and policy issues impacting education. In August of 2009, Rocky Disabato sent SCASA[404 S.C. 440]a request for information pursuant to the FOIA. 1 THE EXECUTIVE DIREctoR of scasa sent disabaTO A responSe in which she refused to produce any of the requested materials and asserted that SCASA is not a public entity subject to the FOIA.

Thereafter, Disabato filed a complaint in circuit court seeking a declaration that SCASA violated the FOIA by refusing to comply with his request as well as an injunction requiring SCASA to comply with the FOIA. SCASA filed a motion to dismiss the action pursuant to Rule 12(b)(6), SCRCP, on the grounds that, when the FOIA is applied to a public body that is a non-profit corporation engaged in political advocacy, the FOIA unconstitutionally violates the First Amendment rights of speech and association.2

In ruling on the motion to dismiss, the circuit court assumed that SCASA is supported by public funds, is a public body subject to the FOIA, and is a corporation engaged in political speech and issue advocacy. The court first held that the FOIA burdens SCASA's First Amendment speech and association rights, and then reviewed the constitutionality of the FOIA using a combination of the exacting and strict scrutiny standards of review. In its order dismissing

[746 S.E.2d 333]

Disabato's complaint, the court stated that “[t]he FOIA's broad definition of [404 S.C. 441]‘public body’ can only be sustained as constitutional if the FOIA's open meeting and records disclosure requirements are substantially related to a sufficiently important governmental purpose and no less restrictive means of achieving this purpose exists.” The court held the FOIA as applied to SCASA does not meet that standard because the disclosure and open meetings requirements are not substantially related to the purposes of the statute and because a less restrictive means of achieving the statute's purposes exists. Accordingly, the court held the FOIA violates SCASA's First Amendment speech and association rights and granted the motion to dismiss. This appeal followed.

ISSUES PRESENTED

I. Is SCASA a “public body” subject to the South Carolina Freedom of Information Act?

II. Does application of the FOIA to SCASA violate SCASA's First Amendment speech and association rights as incorporated through the Fourteenth Amendment?

STANDARD OF REVIEW

A claim may be dismissed when the defendant demonstrates that the plaintiff has failed to allege facts sufficient to establish a cause of action. Rule 12(b)(6), SCRCP. We review the grant of dismissal according to the same standard applied by the circuit court. See Williams v. Condon, 347 S.C. 227, 233, 553 S.E.2d 496, 500 (Ct.App.2001). A ruling on a motion to dismiss pursuant to Rule 12(b)(6) must be based solely on the factual allegations set forth in the complaint, and the court must consider all well-pled allegations as true. Gressette v. S.C. Elec. & Gas Co., 370 S.C. 377, 378–79, 635 S.E.2d 538, 538 (2006).

The Supreme Court has a limited scope of review in considering constitutional challenges to statutes. Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999). The Court presumes that all statutes are constitutional and will, if possible, construe a statute so as to render it constitutional. Davis v. Cnty. of Greenville, 322 S.C. 73, 77, 470 S.E.2d 94, 96 (1996).

[404 S.C. 442]LAW/ANALYSIS

Our General Assembly enacted the FOIA based on the premise “that it is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy.” S.C.Code Ann. § 30–4–15 (2007). In furtherance of that purpose, the FOIA subjects a “public body” to record disclosure and open meeting requirements.

Among those entities defined as a public body subject to the statute are “any organization, corporation, or agency supported in whole or in part by public funds or expending public funds....” S.C.Code Ann. § 30–4–20(a). We held in Weston v. Carolina Research & Development Foundation, 303 S.C. 398, 401 S.E.2d 161 (1991), that the statute's unambiguous language brings even a private corporation supported by public funds within the definition of a public body. Id. at 403, 401 S.E.2d at 164. We further clarified that holding, stating:

this decision does not mean that the FOIA would apply to business enterprises that receive payment from public bodies in return for supplying specific goods or services on an arm[']s length basis. In that situation, there is an exchange of money for identifiable goods or services and access to the public body's records would show how the money was spent. However, when a block of public funds is diverted en masse from a public body to a related organization, or when the related organization undertakes the management of the expenditure of public funds, the only way that the public can determine with specificity how those funds were spent is through access to the records and affairs of the organization receiving and spending the funds.

Id. at 404, 401 S.E.2d at 165.


The FOIA's record disclosure requirement provides that “any person has a right to

[746 S.E.2d 334]

inspect or copy any public record of a public body” subject to certain exceptions. S.C.Code Ann. § 30–4–30(a). A public body must provide any requested records within fifteen days of a request, and the body may collect fees to cover the costs of searching for and producing records. S.C.Code Ann § 30–4–30(b)—(c). Additionally, the [404 S.C. 443]FOIA's open meetings requirement provides that all meetings of public bodies must be open to the public, subject to limited exceptions. S.C.Code Ann. § 30–4–60. A public body must provide advance notice of all meetings and keep written minutes which must include statutorily specified information. S.C.Code Ann. §§ 30–4–80 & 30–4–90. Finally, the FOIA provides that any citizen of the State may seek a declaratory judgment and injunctive relief to enforce the provisions of the FOIA, and willful violations of the FOIA are a misdemeanor subject to punishment by a fine or imprisonment. S.C.Code Ann. §§ 30–4–100 & 110.

I. PUBLIC BODY

As an initial matter, Disabato asks us to declare that SCASA is a public body subject to the FOIA. However, SCASA's motion to dismiss did not challenge the sufficiency of Disabato's allegation that SCASA is a public body. Therefore, the issue is not before us. The allegations in Disabato's complaint, if true, may or may not be enough to establish that SCASA is a public body for purposes of the FOIA; however, a judicial declaration that SCASA is a public body must be based upon evidence, not on mere allegations. Therefore, the issue of whether SCASA is a public body can only be resolved after the parties have engaged in discovery, and at this procedural stage, we assume, but do not decide, that SCASA is a public body.

II. FIRST AMENDMENT CHALLENGE

The only issue before us is whether the application of the FOIA to SCASA is an unconstitutional infringement upon SCASA's First Amendment speech and association rights. Disabato contends that the FOIA does not impact SCASA's First Amendment rights in any way, and thus, we need not consider the FOIA's constitutionality under the First Amendment. Disabato also contends that even if the FOIA does impact SCASA's First Amendment rights, the FOIA does not unconstitutionally infringe upon those rights.

Accordingly, we must engage in a two-step analysis of...

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8 practice notes
  • Fabian v. Lindsay, No. 27460.
    • United States
    • United States State Supreme Court of South Carolina
    • October 29, 2014
    ...set forth in the complaint, and the court must consider all well-pled allegations as true.” Disabato v. S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 441, 746 S.E.2d 329, 333 (2013) ; see also Turner v. Daniels, 404 S.C. 430, 431 n. 1, 746 S.E.2d 40, 41 n. 1 (2013) (noting under the standard of ......
  • Hotel & Motel Holdings, LLC v. BJC Enters., LLC, Appellate Case No. 2011–198106.
    • United States
    • Court of Appeals of South Carolina
    • November 18, 2015
    ...allegations as true." Fabian v. Lindsay, 410 S.C. 475, 481, 765 S.E.2d 132, 136 (2014) (quoting Disabato v. S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 441, 746 S.E.2d 329, 333 (2013) ). "On appeal from the dismissal of a case pursuant to Rule 12(b)(6), an appellate court applies the same stan......
  • Fabian v. Ross M. Lindsay, III & Lindsay & Lindsay, LLC, Appellate Case No. 2012-213726
    • United States
    • United States State Supreme Court of South Carolina
    • October 29, 2014
    ...set forth in the complaint, and the court must consider all well-pled allegations as true." Disabato v. S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 441, 746 S.E.2d 329, 333 (2013); see also Turner v. Daniels, 404 S.C. 430, 431 n.1, 746 S.E.2d 40, 41 n.1 (2013) (noting under the standard of rev......
  • DomainsNewMedia.com, LLC v. Hilton Head Island-Bluffton Chamber Commerce, Appellate Case No. 2016-000460
    • United States
    • United States State Supreme Court of South Carolina
    • May 23, 2018
    ...its purpose of a transparent government, "FOIA subjects a ‘public body’ to record disclosure." Disabato , v. S.C. Ass'n of Sch. Adm'rs , 404 S.C. 433, 442, 746 S.E.2d 329, 333 (2013). As this Court has recognized, "[i]f public bodies were not subject to the FOIA, governmental bodies could s......
  • Request a trial to view additional results
8 cases
  • Fabian v. Lindsay, No. 27460.
    • United States
    • United States State Supreme Court of South Carolina
    • October 29, 2014
    ...set forth in the complaint, and the court must consider all well-pled allegations as true.” Disabato v. S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 441, 746 S.E.2d 329, 333 (2013) ; see also Turner v. Daniels, 404 S.C. 430, 431 n. 1, 746 S.E.2d 40, 41 n. 1 (2013) (noting under the standard of ......
  • Hotel & Motel Holdings, LLC v. BJC Enters., LLC, Appellate Case No. 2011–198106.
    • United States
    • Court of Appeals of South Carolina
    • November 18, 2015
    ...allegations as true." Fabian v. Lindsay, 410 S.C. 475, 481, 765 S.E.2d 132, 136 (2014) (quoting Disabato v. S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 441, 746 S.E.2d 329, 333 (2013) ). "On appeal from the dismissal of a case pursuant to Rule 12(b)(6), an appellate court applies the same stan......
  • Fabian v. Ross M. Lindsay, III & Lindsay & Lindsay, LLC, Appellate Case No. 2012-213726
    • United States
    • United States State Supreme Court of South Carolina
    • October 29, 2014
    ...set forth in the complaint, and the court must consider all well-pled allegations as true." Disabato v. S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 441, 746 S.E.2d 329, 333 (2013); see also Turner v. Daniels, 404 S.C. 430, 431 n.1, 746 S.E.2d 40, 41 n.1 (2013) (noting under the standard of rev......
  • DomainsNewMedia.com, LLC v. Hilton Head Island-Bluffton Chamber Commerce, Appellate Case No. 2016-000460
    • United States
    • United States State Supreme Court of South Carolina
    • May 23, 2018
    ...its purpose of a transparent government, "FOIA subjects a ‘public body’ to record disclosure." Disabato , v. S.C. Ass'n of Sch. Adm'rs , 404 S.C. 433, 442, 746 S.E.2d 329, 333 (2013). As this Court has recognized, "[i]f public bodies were not subject to the FOIA, governmental bodies could s......
  • Request a trial to view additional results

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