Access to judicial records

SCPA Attorney Jay Bender
By SCPA Attorney Jay Bender

Years ago a young woman named Heather Elvis disappeared in Horry County.  Her body has never been found, but two persons have been found guilty in connection with her disappearance.

The story is one of a love triangle with Heather Elvis being involved in an affair with a married man.  When the man’s wife learned of the affair the husband and wife are believed to have engineered the disappearance of the girlfriend.

The couple was arrested and charged with murder, but the murder charges were later dropped.  The husband was charged with kidnapping, but the jury couldn’t reach a verdict.  The husband is now serving a 10-year sentence for obstruction of justice.

More recently the wife, Tammy Moorer, was convicted of kidnapping and sentenced to prison for 30 years.

Following the trial a reporter went to the Horry Clerk of Court’s office to obtain a copy of the jury roster.  The Clerk of Court directed the reporter to submit a request under the FOIA.

I called the Clerk, who is new in her position, to explain that all citizens had a constitutional right of access to judicial records, and that right of access was not limited by the exemptions contained in the FOIA.

The Clerk acknowledged that she had denied access to the jury list, citing her concern over juror privacy.  She also said there was a gag order in the husband’s case which she thought justified a denial of access to information, including evidence, in the wife’s file.

There is no court order sealing the wife’s file.  Denial of access was the unilateral, unauthorized action of a public official.

The Supreme Court of South Carolina has adopted a rule regarding the sealing of court files.  In stating the purpose of the rule the court said, “Because South Carolina has a long history of maintaining open court proceedings and records, this Rule is intended to establish guidelines for governing the filing under seal of settlements and other documents.”  Rule 41.1 South Carolina Rules of Civil Procedure.  The court also noted that the rule is intended to insure that the state constitutional guarantee of open courts and open court records is fulfilled.

I have spoken to the Director of Court Administration, a former newspaper managing editor, to press my view that the actions of the Horry Clerk of Court were without legal justification.  Hopefully there will be some training for new clerks.

In the short term, I’d suggest reporters download Rule 41.1 and carry a copy with them when going to examine court files.  Court rules may be found at www.sccourts.org.  If you’re told the file has been sealed, ask for a copy of the sealing order.  If you’re told merely that you can’t see the file, show your copy of the rule and ask on what basis you are being denied access.  If that doesn’t work, call the new PIO at Court Administration who has been hired in part to assist in the resolution of reporter and court conflicts.  If that doesn’t work, call me.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

Other recent columns