Legal Q&A: Liability of public bodies (July 2018)
Q: Can fulfilling an S.C. FOIA request result in liability for public bodies?
A: Yes, but it is highly unlikely. S.C. Code Ann. 30-4-30(a) provides: “(a) A public body may but is not required to exempt from disclosure the following information: …”. So we know there is no duty of confidentiality imposed by S.C. FOIA. There are some other statutory schemes that may impose liability on a public body for disclosure of some types of records (FERPA, HIPAA [for example]), but that liability is not created by S.C. FOIA. Also South Carolina recognizes the public duty rule which provides in the law that public officials are not liable to individuals for their negligence in discharging public duties, like responding to S.C. FOIA requests, unless a special duty of confidentiality is created by some other statutory scheme or by contract.
Taylor M. Smith IV is a media lawyer who represents the S.C. Press Association and its newspapers. As one of our FOI/Legal Hotline attorneys, he is available to answer your open government, legal and libel questions. Call (803) 750-9561.