Newberry Pub. Co., Inc. v. Newberry County Com'n on Alcohol and Drug Abuse, 23660
| Decision Date | 07 April 1992 |
| Docket Number | No. 23660,23660 |
| Citation | 308 S.C. 352,417 S.E.2d 870 |
| Parties | , 20 Media L. Rep. 1420 NEWBERRY PUBLISHING CO., INC., d/b/a The Newberry Observer, Appellant, v. NEWBERRY COUNTY COMMISSION ON ALCOHOL AND DRUG ABUSE, Defendant, and Intervenor South Carolina State Law Enforcement Division, Respondent. . Heard |
| Court | South Carolina Supreme Court |
Jay Bender, S. Markey Stubbs, and Jeffrey M. Nelson, all of Baker, Barwick, Ravenel & Bender, Columbia, for appellant.
Chief Deputy Atty. Gen. Edwin E. Evans, Deputy Atty. Gen., Charles W. Gambrell, Jr., and Asst. Atty. Gen., Samuel L. Wilkins, Columbia, for respondent.
Appellant Newberry Publishing Co., Inc., d/b/a The Newberry Observer (Observer), initiated this action pursuant to the South Carolina Freedom of Information Act (FOIA), 1 seeking the disclosure of a criminal investigative report prepared by respondent South Carolina Law Enforcement Division (SLED). The trial judge denied the Observer access to any portion of the report. We reverse.
The Observer commenced this action against Newberry County Commission on Alcohol and Drug Abuse (Commission) seeking access to a report prepared by SLED and in the possession of the Commission. Thereafter, the Observer obtained a temporary restraining order enjoining the Commission from relinquishing possession of the SLED report pending resolution of the lawsuit. Pursuant to an agreement between the Observer and the Commission, copies of the document were deposited with the Newberry County Clerk of Court as custodian.
Contemporaneously with the granting of the temporary restraining order, SLED was allowed to intervene to assert its interest in maintaining the confidentiality of the criminal investigative report. 2 After holding a hearing and conducting an in camera review of the report, the trial judge entered an order refusing to require SLED to disclose any portion of the criminal investigative report and dissolving the temporary restraining order. The Observer appeals.
The FOIA provides that "[a]ny person has a right to inspect or copy any public record of a public body, except as otherwise provided by § 30-4-40...." S.C. Code Ann. § 30-4-30 (1991). 3 Section 30- 4-40(a) lists various matters which are exempt from disclosure, including:
(3) Records of law enforcement and public safety agencies not otherwise available by 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. (emphasis added).
Section 30-4-40(b) provides that:
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.
The Observer contends that the trial judge erred in failing to segregate the nonexempt and exempt portions of the report and to provide the Observer with the nonexempt material, as is mandated by section 30-4-40(b). We agree.
SLED takes the position that it is not required to release any information contained in criminal investigative reports. 4 In fact, a captain from SLED testified that SLED's policy is to routinely deny any FOIA request which seeks information contained in a criminal investigative report. Pursuant to this policy, SLED refused to provide the Observer with any of the documents contained in the report, including documents which were already in the public domain and could be obtained from other sources. We find that SLED's policy of denying all FOIA requests for criminal investigative reports, without determining whether portions of the report are subject to disclosure, is in direct contravention of the clear language of the FOIA.
If the legislature had wanted to create a blanket exemption for all criminal investigative reports, regardless of content, it clearly could have done so. Instead, the legislature determined that such reports would be exempt from disclosure only if the disclosure of the information would harm the agency in one of four enumerated ways. 5 Even then, the report may not be entirely exempt from disclosure; the statute goes on to state that a public record containing both nonexempt and exempt material must be segregated so that the nonexempt material is made available to the public. As a result, we reject SLED's contention that this, or any, criminal investigative report is per se exempt from disclosure.
We conclude that the documents contained in the report which are otherwise available to the public as public records are not exempt from disclosure merely because they were incorporated in the SLED report. These documents include the Commission's bylaws and certificate of incorporation, the audit performed on the Commission, and any accompanying letters from the accountant. These documents are not subject to any exemption contained in the FOIA and must be disclosed to the Observer.
The remainder of the report contains statements given by confidential informants and a SLED report summarizing the allegations contained in the statements. After careful review of these documents we conclude that these documents fall within one or more of the exemptions relied upon by the trial judge. 6
We caution that this opinion should...
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