Publication of Murdaugh Phone Call Recordings Raises Legal Issues
Published March 2022
South Carolina’s Freedom of Information Act provides that state agencies must provide public records, within certain parameters and exceptions, to the public upon request. It also defines “public record” as 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.”
So when the Murdaugh Murders Podcast made a FOIA request for recorded phone conversations of disgraced attorney Alex Murdaugh from Richland County’s Alvin S. Glenn Detention Center, the jail released recordings of Alex’s conversations with various family members and friends. The release led other news organizations to make similar requests and also led Murdaugh’s attorneys to file a federal lawsuit seeking an injunction against any additional release of the phone call recordings.
Murdaugh’s attorneys—Dick Harpootlian and Jim Griffin—argue that the recordings are exempt from disclosure under FOIA, citing a federal appeals court decision holding that a New York State convict could not use the federal FOIA to obtain recordings of his phone calls by the U.S. Drug Enforcement Administration during its investigation of his crimes that were not used in the prosecution. But there are several federal court decisions, cited by Richland County in its response to Murdaugh’s lawsuit, holding that jailhouse phone call recordings were specifically exempted from the federal anti-wiretapping law, and thus were not exempt for disclosure under federal FOIA. The Murdaugh phone calls, the county argues, are not exempt from disclosure under the state FOIA for the same reason.
In addition, a 2011 opinion by the South Carolina Attorney General’s Office concluded that “in the opinion of this office, and consistent with the mandate of liberal construction under the FOIA, it could be concluded that inmates’ personal telephone calls should be construed as being subject to disclosure, especially where some form of express or implied consent can be construed to have been in place.” The opinion added that there may be exceptions for phone calls with attorneys and calls that disclose private information. But inmates’ privacy is limited, particularly because the jail routinely records detainees’ calls, and notifies inmates of this both in writing and in a recording at the start of each call. It should be noted that Attorney General’s Opinions are not binding legal precedents, which can only be established by the legislature or the appellate courts.
The podcast’s actual FOIA request has not been made public, and it is unclear whether the released recordings cover all of Murdaugh’s calls. So it’s also unclear whether there are other recordings that have not yet been released.
It’s also unclear the process the Detention Center used to handle the FOIA request, including who within the agency reviewed and approved the request. Obviously, whoever reviewed it approved the FOIA request, leading to release of the recordings.
Meanwhile, the court system has repeatedly reassigned the federal lawsuit seeking the injunctions, which is now before a fifth judge.
The Murdaugh case has already raised many questions regarding the law and the legal system in South Carolina, including questions regarding access under the state’s FOIA. As the case continues, it is likely to raise more issues about access to government information as well as many other aspects of the legal and judicial system in the state.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 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.