Pope v. Wilson

• Decision Date: 19 June 2019
• Docket Number: Appellate Case No. 2016-001708,Opinion No. Op. 5657
• Citation: 427 S.C. 377,831 S.E.2d 442
• Court: South Carolina Court of Appeals
• Parties: Adele J. POPE, Appellant, v. Alan WILSON, in his capacity as Attorney General of South Carolina, Respondent.

427 S.C. 377

831 S.E.2d 442

Adele J. POPE, Appellant,

v.Alan WILSON, in his capacity as Attorney General of South Carolina, Respondent.

Appellate Case No. 2016-001708

Opinion No. Op. 5657

Court of Appeals of South Carolina.

Heard February 12, 2019

Filed June 19, 2019

Rehearing Denied August 27, 2019

Adam Tremaine Silvernail, of Law Office of Adam T. Silvernail, of Columbia, for Appellant.

Solicitor General Robert D. Cook and Deputy Solicitor General J. Emory Smith, Jr., both of Columbia, for Respondent.

GEATHERS, J.:

In this action seeking relief under the Freedom of Information Act (FOIA), Appellant Adele J. Pope seeks review of the circuit court's order dismissing her complaint on the ground that the records she sought were potentially discoverable in a pending breach of fiduciary duty action.¹ We reverse and remand.²

FACTS/PROCEDURAL HISTORY

In November 2007, the Aiken County circuit court appointed Pope and Robert L. Buchanan, Jr. to serve as personal representatives for The Estate of James Brown and trustees of The James Brown 2000 Irrevocable Trust to replace the original fiduciaries named in the trust and in Brown's will. See Wilson v. Dallas , 403 S.C. 411, 416–19, 743 S.E.2d 746, 749–51 (2013).³ The circuit court later removed Pope and Buchanan from these positions. Id. at 422, 743 S.E.2d at 752.

On May 19, 2010, then-Attorney General Henry McMaster and Russell Bauknight, the newly appointed personal representative and trustee, filed a breach of fiduciary duty action against Pope and Buchanan in the Richland County Probate Court. Most of the additional listed plaintiffs were also plaintiffs in Wilson .⁴ The complaint alleged, inter alia, that Pope and Buchanan failed to engage necessary advisors; failed to use due diligence in pursuing business opportunities and in determining the estate's value, thereby "making the estate vulnerable to millions of dollars in unnecessary and incorrect tax liability;" failed to keep accurate accounting records; engaged in self-dealing by "paying themselves hundreds of thousands of dollars in fees, which left the estate and trust with a solvency crisis;" took improper positions that were adversarial to the settlement "entered into by the beneficiaries of the Estate and Trust and approved by the [c]ircuit [c]ourt;" and failed "to account to the Attorney General as required by law."

The breach of fiduciary duty action was later transferred to the circuit court. See supra n.1. Among the documents sought by Pope during discovery were

1. The published policies and/or rules and regulations of the Office of the Attorney General of South Carolina ("AG") with respect to the engagement of private attorneys, including contingency-fee attorneys, by the AG in effect in May 2010.

2. The published policies and/or rules and regulations of the Office of the AG with respect to the engagement of private attorneys, including contingency-fee attorneys, by the AG currently in effect (July 19, 2011).

3. The contract of the then-AG (Henry D. McMaster) and/or the State of South Carolina engaging Kenneth B. Wingate and Everett Kendall, II to commence Civil Action No. 2010-GC-4000073 in the Probate Court for Richland County on May 19, 2010[,] on behalf of the AG.

4. Any contract and/or other document authorizing Russell L. Bauknight to commence Civil Action No. 2010-GC-40-0073 on behalf of the AG and/or the State of South Carolina.

Pope also sent a FOIA request for these items to the Attorney General and filed a motion to compel the production of items 3 and 4. In a letter dated August 5, 2011, the Attorney General proposed to place the FOIA request on hold pending the resolution of the fiduciary litigation. The Attorney General and Bauknight later sought a protective order concerning item 3, the Attorney General's agreement engaging Wingate and Kendall (the Wingate Agreement).

Subsequently, Pope filed this action against the Attorney General in Newberry County on August 10, 2011, seeking items 1 through 4. By this time, Respondent Alan Wilson had been elected to the office of Attorney General (the AG). The AG later filed a motion to dismiss Pope's complaint and to strike the attached affidavits, and Pope filed a motion for summary judgment. In an order dated November 22, 2011, the circuit court denied the motion to dismiss, required the AG to answer Pope's complaint, required the consolidation of this action with the fiduciary litigation pending in Richland County, and declined to address the remaining motions. On January 11, 2012, the circuit court denied Pope's motion to alter or amend its order and issued a Form 4 order transferring venue to Richland County.

The AG later filed a motion for judgment on the pleadings pursuant to Rule 12(c), SCRCP,⁵ asserting that the items sought by Pope were exempt from FOIA because they were subject to discovery in the fiduciary litigation. Subsequently, the AG sought to amend his answer to assert that he had no documents responsive to Pope's FOIA request other than certain attached exhibits and an unsigned copy of the Wingate Agreement, which was subject to the AG's motion for a protective order that was "under judicial review."

The exhibits attached to the proposed amended answer included a copy of the AG's policy concerning the engagement of private counsel, the AG's correspondence with Russell Bauknight, and an unexecuted copy of the standard "Litigation Retention Agreement For Special Counsel Appointed by the South Carolina Attorney General." The proposed amended answer also stated (1) the AG had no objection to disclosing the Wingate Agreement if the circuit court ruled it could be released and (2) he did not have any documents pertaining to item 4 of Pope's request.

In an order dated June 14, 2016, the circuit court granted the AG's motion for judgment on the pleadings and dismissed this action. In its order, the circuit court concluded that FOIA was "not a tool that may be used to bypass civil discovery in a pending case." The circuit court also concluded that the requested documents were exempt under FOIA because the South Carolina Rules of Civil Procedure constitute "law" for purposes of the exemption in section 30-4-40(a)(4) of the South Carolina Code (2007), which allows a public body to exempt from disclosure "[m]atters specifically exempted from disclosure by statute or law." Pope filed a motion to alter or amend the circuit court's order, but the circuit court denied the motion. This appeal followed.⁶

STANDARD OF REVIEW

"Any party may move for a judgment on the pleadings under Rule 12(c), SCRCP. When considering such motion, the court must regard all properly pleaded factual allegations as admitted." Falk v. Sadler , 341 S.C. 281, 286, 533 S.E.2d 350, 353 (Ct. App. 2000). "On review of the motion, the court may not consider matters outside the pleadings." Id.

In evaluating a Rule 12(c) motion, the court must consider that "a complaint is sufficient if it states any cause of action or it appears that the plaintiff is entitled to any relief whatsoever. Our courts have held that pleadings in a case should be construed liberally so that substantial justice is done between the parties." Id. at 287, 533 S.E.2d at 353 (quoting Russell v. City of Columbia , 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991) ). Moreover, "a judgment on the pleadings is considered to be a drastic procedure by our courts." Id. (quoting Russell , 305 S.C. at 89, 406 S.E.2d at 339 ).

LAW/ANALYSIS

I. FOIA Exemption

Pope argues the circuit court erred in concluding her FOIA request was subordinate to discovery rules. She asserts that her status as a defendant in the fiduciary litigation does not affect her rights under FOIA.

Within FOIA, our legislature has found 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. 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) (emphasis added). Accordingly, our supreme court has stated, "FOIA is remedial in nature and should be liberally construed to carry out its purpose." Evening Post Publ'g. Co. v. Berkeley Cty. Sch. Dist. , 392 S.C. 76, 82, 708 S.E.2d 745, 748 (2011).

In keeping with this construction, "the exemptions in section 30-4-40 are to be narrowly construed so as to fulfill the purpose of FOIA ... ‘to guarantee the public reasonable access to certain activities of the government.’ To further advance this purpose, the government has the burden of proving that an exemption applies." Evening Post Publ'g. Co. v. City of N. Charleston , 363 S.C. 452, 457, 611 S.E.2d 496, 499 (2005) (citations omitted) (quoting Fowler v. Beasley , 322 S.C. 463, 468, 472 S.E.2d 630, 633 (1996) ); see also Berkeley Cty. Sch. Dist. , 392 S.C. at 83, 708 S.E.2d at 748 ("[T]he 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.’ " (emphasis added) (quoting Fowler , 322 S.C. at 468, 472 S.E.2d at 633 )). Moreover, "[t]he determination of whether documents or portions thereof are exempt from FOIA must be made on a case-by-case basis." Berkeley Cty. Sch. Dist. , 392 S.C. at 82, 708 S.E.2d at 748.

In State v. Robinson , our supreme court considered whether FOIA allowed a criminal defendant to obtain certain law enforcement records that were not discoverable under Rule 5(a)(2), SCRCrimP.⁷ 305 S.C. 469, 476–77, 409 S.E.2d 404, 409 (1991). The court concluded that FOIA "exempts discovery of material that is not otherwise discoverable under Rule 5(a)(2)," stating that...