Legal Q&A: Law enforcement redaction (May 2019)
Q: In response to a S.C. FOIA request, can law enforcement redact information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy?
A: Yes, but only if the redacted information would be an invasion of personal privacy and that invasion would be unreasonable. The Fourth Amendment to the U.S. Constitution provides an individual right of privacy such that a person is guaranteed freedom from unreasonable searches and seizures. Courts have interpreted this constitutional guarantee to apply to places and things in which a person has a reasonable expectation of privacy (think: your house, your car, your purse, etc.) such that probable cause or a warrant is necessary for a search or arrest. Any person can waive their expectation of privacy by their actions. For purposes of S.C. FOIA requests and law enforcement records know this: it is highly likely a witness has waived any expectation of privacy she had in information volunteered to police investigators, like her name, address, and age, such that FOIA disclosure would not be an unreasonable invasion of her Fourth Amendment rights if that information were disclosed.
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.