Does Using Personal Devices Foil FOIA?
Published November 2023
Most of us use our cellphones and other portable devices for a wide variety of purposes each day, such as accessing news and information, checking our e-mail and social media, and even once in a while using them as actual telephones.
But use of these devices presents challenges under South Carolina’s Freedom of Information Act when public officials and employees use their personal devices for government business. A 2021 nationwide study found that nearly 25 percent of state and local government employees reported using their personal phones and tablets for work.
The South Carolina FOIA law generally provides that most government records—with certain exceptions—must be available to state residents upon request, including “all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body” (emphasis added). The law further provides that “No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” Under these provisions, both print and electronic government records are obtainable under the statute.
This interpretation is reinforced by a 2014 opinion of the state’s Attorney General: although not based on the FOIA law, the opinion determined that a “[town] council member, regardless of the form of city or county government, should have access to personnel records and financial documents, such as cell phone records which are paid for by the town and professional contract documents, in order to gather information” (emphasis added).
Messages and records transmitted and stored using government accounts on non-government devices generally will be accessible through the government server to which the personal devices connect, and thus should be easily accessible for FOIA purposes. But what about when non-government accounts are used? These electronic government records should still be public, but there are no provisions in the South Carolina FOIA law regarding ownership of device and/or the account in which the records are transmitted or stored, and there does not appear to be any court decisions or attorney general opinions on the issue.
At the federal level, in 2014 Congress amended the federal FOIA to require that any government records (including messages and e-mails) sent or received on personal devices and/or personal accounts must be provided to and retained as public records by the relevant agency. This led the D.C. Circuit Court of Appeals to hold that messages in a public official’s personal e-mail account could be government records subject to FOIA, since “If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose [of FOIA] is hardly served.”
Other jurisdictions have addressed the issue, with California, Colorado, the District of Columbia, Illinois, Kentucky, Oklahoma, Pennsylvania, Texas , Vermont, Washington and Wyoming all determining that their respective freedom of information laws require disclosure of government content on personal devices. In Kansas, on the other hand, messages sent by public officials using their personal accounts and devices in the aftermath of the likely illegal police raid of the Marion County Record are being withheld on the grounds that they are not public records.
South Carolina’s FOIA likely applies in the same way.
As a result, messages sent and received by public officials and employees on their private cell phones or devices, or on their personal accounts, should be subject to disclosure under South Carolina’s FOIA law, if the messages involve public business in which the officials’ or employees’ agencies are involved.
Updates on other issues:
- Another Judge Holds Jailhouse Recordings Releasable: For the third time in the past year and a half, a South Carolina judge has held that recordings of a pre-trial inmate’s phone calls from jail are subject to release under the state’s Freedom of Information Act. This time, the ruling involved tapes of phone calls of Ryan Lenard Manigo, who is being held in the Colleton County jail on charges involving the alleged murder of six of his relatives.
Manigo’s lawyers argued that the recordings should not be subject to disclosure under FOIA because they “reveal nothing about government activity,” and because their release would violate Manigo’s privacy and threaten his right to a fair trial. But Circuit Court Judge Robert Bonds disagreed, ruling that the recordings by the Colleton County Sheriff’s Office were public records.
The ruling comes in wake of similar rulings regarding jailhouse phone calls of now-convicted murderer Alex Murdaugh and recordings of jailhouse videocall conversations of felony DUI suspect Jamie Komoroski.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.