Evening Post Publ'g Co. v. Berkeley County Sch. Dist.

• Decision Date: 21 March 2011
• Docket Number: No. 26949.,26949.
• Citation: 708 S.E.2d 745,392 S.C. 76,267 Ed. Law Rep. 381
• Court: South Carolina Supreme Court
• Parties: EVENING POST PUBLISHING COMPANY, d/b/a The Post and Courier, Appellant,v.BERKELEY COUNTY SCHOOL DISTRICT, Respondent.

392 S.C. 76

708 S.E.2d 745

267 Ed. Law Rep. 381

EVENING POST PUBLISHING COMPANY, d/b/a The Post and Courier, Appellant,

v.BERKELEY COUNTY SCHOOL DISTRICT, Respondent.

No. 26949.

Supreme Court of South Carolina.

Heard Feb. 16, 2011.Decided March 21, 2011.

John J. Kerr and Charles J. Baker, Buist, Moore, Smythe & McGee, both of Charleston, for Appellant.Kenneth L. Childs, Kathryn Long Mahoney, and John M. Reagle, Childs & Halligan, P.A., all of Columbia, for Respondent.Jay Bender, Baker, Ravenel & Bender, of Columbia for Amicus Curiae Osteen Publishing, New York Times, Landmark, et al.Justice HEARN.

The issue before the Court is whether the circuit court erred in granting summary judgment to Berkeley County School District (School District) based on the attorney-client privilege exception to the Freedom of Information Act (FOIA) and in denying Evening Post Publishing Company's (Evening Post) motion to compel the production of documents. We find the circuit court erred in both respects and reverse.

FACTUAL BACKGROUND

School District is governed by a nine-member Board of Education (Board) elected by residents of Berkeley County. In 1997, Dr. J. Chester Floyd was hired by the Board as Superintendent for School District. Pursuant to a Professional Employment Agreement executed in 2005 between Floyd and School District, Floyd was hired through June 2010. A provision of this contract required the Board to evaluate Floyd at least once a year. This evaluation was the basis for determining, among other things, whether Floyd received a 5% increase in his compensation.

In 2006, the composition of the Board changed after an election resulting in the defeat of three longtime incumbents. After this election, the Board became more critical of the Superintendent, with most decisions being rendered 5 to 4. It was in the midst of this contentious environment that the present action was filed by Evening Post to obtain information about the Board.

During Floyd's evaluation for the 2006–2007 school year, the law firm of Childs and Halligan, PA, became involved at the request of Frank Wright, Chairman of the Board. Childs and Halligan prepared a summary of each individual Board member's answers to both a written questionnaire and a telephone interview concerning Floyd's performance. The Board met in executive session to discuss Floyd's performance under the agreement, and after the session, Wright publicly announced the Board found Floyd's performance to be satisfactory, entitling Floyd to the 5% pay increase.

Evening Post, after discovering information regarding the written questionnaire and telephone interview, wrote to Floyd on two separate occasions requesting access to certain documents pursuant to FOIA. Floyd denied both requests, stating the evaluations were exempt from disclosure under FOIA pursuant to the attorney-client privilege. Shortly thereafter, Evening Post requested access to these items a third time, but directed its request to the Board. Wright responded to this third request, denying it on the same grounds as Floyd, but adding that the personal privacy exemption under FOIA also applied to the evaluations.

Evening Post filed a lawsuit pursuant to the Uniform Declaratory Judgment Act, alleging that the evaluations were public records, the School District's denial of access to the public records violated FOIA, and School District should be enjoined from violating FOIA. Evening Post asked, in the alternative, that the circuit court review the evaluations in camera to determine if they were public records and whether the exemptions claimed by School District were applicable. School District filed a timely answer, asserting as an affirmative defense that the records sought were exempt from disclosure under FOIA, specifically Section 30–4–40(a)(7) of the South Carolina Code (2007) and attaching the affidavits of Wright and Kathryn Long Mahoney, a Childs and Halligan attorney. In conjunction with its answer, School District filed a motion for judgment on the pleadings.

During the pendency of School District's motion, Evening Post submitted interrogatories and document production requests to School District. While School District responded to the interrogatories, School District objected to the production request for a blank copy of the questionnaire referenced in Wright's affidavit on the ground of attorney-client privilege. Evening Post filed a motion to compel pursuant to Rule 37, SCRCP, in order to gain access to the questionnaire. Both Evening Post's Rule 37 motion and School District's Rule 12(c) motion were scheduled to be heard the same day.

Prior to the hearing, School District submitted a set of sealed documents to the circuit court for an in camera review, which the circuit court accepted. The documents submitted were: (1) Correspondence from Daryl T. Hawkins (Floyd's lawyer) to Wright; (2) a memorandum from Childs and Halligan to Board Members; (3) a blank copy of the written questionnaire attached to the above memorandum; and (4) a compilation prepared by Childs and Halligan of information from questionnaires and telephone interviews. School District did not submit the completed questionnaires to the circuit court. Because the circuit court considered matters outside the pleadings in conjunction with School District's Rule 12(c) motion, the circuit court treated the matter as a motion for summary judgment under Rule 56, SCRCP. After taking the matter under advisement, the circuit court granted summary judgment to School District and denied Evening Post's motion to compel. Evening Post appealed to the court of appeals and the case was certified to this Court pursuant to Rule 204, SCACR.

ISSUES

Evening Post raises two issues on appeal:

1. Did the circuit court err in granting summary judgment to School District on the FOIA claim?

2. Did the circuit court err in denying Evening Post's motion to compel production of the blank questionnaire?

LAW/ANALYSIS

I. Summary Judgment Motion

Evening Post contends summary judgment was erroneously granted because the attorneys were only hired as a means to insulate the Board from FOIA compliance, and the circuit court should have allowed Evening Post an adequate opportunity to conduct discovery. School District argues in response that it met its burden to prove the exemption applies. We hold the circuit court erred in granting summary judgment in favor of School District.

When reviewing the trial court's decision to grant summary judgment, an appellate court applies the same standard applied by the circuit court. Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party is entitled to prevail as a matter of law. Rule 56(c), SCRCP; see also Hancock v. Mid–South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009) (“[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment.”). “In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party.” David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). Because summary judgment is a drastic remedy, it must not be granted until the opposing party has had a “full and fair opportunity to complete discovery.” Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003). Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Lanham, 349 S.C. at 362, 563 S.E.2d at 333.

FOIA is remedial in nature and should be liberally construed to carry out its purpose. Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 161, 547 S.E.2d 862, 864–65 (2001). As the General Assembly stated,

[I]t 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. Toward this end, provisions of this chapter must be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.

S.C.Code Ann. § 30–4–15 (2007).

FOIA's basic premise is to give “any person has a right to inspect or copy any public record of a public body.” Id. § 30–4–30(a). This right is not without some exceptions, enumerated under section 30–4–40, the following being the one at issue in this case: “Correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.” Id. § 30–4–40(a)(7). The determination of whether documents or portions thereof are exempt from FOIA must be made on a case-by-case basis, and the exempt and non-exempt material shall be separated and the nonexempt material disclosed. City of Columbia v. ACLU, 323 S.C. 384, 387, 475 S.E.2d 747, 749 (1996); see also Beattie v. Aiken County Dep't of Social Servs., 319 S.C. 449, 453, 462 S.E.2d 276, 279 (1995); Newberry Publ'g Co., Inc. v. Newberry County Comm'n on Alcohol & Drug Abuse, 308 S.C. 352, 354, 417 S.E.2d 870, 872 (1992). However, the exemptions should be narrowly construed to not provide a blanket prohibition of disclosure in order to “guarantee the public reasonable access to certain activities of the government.” See Fowler v. Beasley, 322 S.C. 463, 468, 472 S.E.2d 630, 633 (1996); see also S.C.Code Ann. § 30–4–15 (2007). The burden of proving that an exemption exists lies with the government. Evening Post Publ'g Co. v....