S.C. police agencies should follow FOIA law
Published May 2022
A “possibly gang-related” shooting in a Greenville middle school. Records from the 2009 disappearance of a high school student in Myrtle Beach. And the notorious murder of Maggie and Paul Murdaugh at their family estate in Colleton County.
In the Greenville and Murdaugh cases, police agencies released only brief, one-page reports to the press and public that said little beyond vaguely describing the incident that occurred, as well as when and where it happened. In the Myrtle Beach case, police have refused to release even that. Releasing any more information, the police agencies said, would compromise their investigations and eventual prosecutions.
The release of a vague or minimalist incident report is unlikely to satisfy the requirements of the South Carolina Freedom of Information Act, which provides that “reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed” are public information and must be made available for 14 days after an alleged crime occurs. While the Act permits law enforcement agencies to delete from the report certain information that is legally exempt from disclosure, many South Carolina police agencies take this too far – releasing only perfunctory reports that record just a few basic facts of a police incident, and refusing to release any more information contained in “supplemental” reports.
Law enforcement agencies vary widely—often on a case-by-case basis—on how much information they include in the police incident reports that they release. Reporters know their communities and are often able to “fill in the blanks” of these sparse reports. Sometimes, they will even receive upon request the supplemental reports that were initially withheld. But disclosure of only scant details of police reports seems to be a common and persistent problem in many areas of the state.
The Post and Courier (represented by the Fenno Law Firm, where I am of counsel) sued last June over the initial disclosure of a mere two-line incident report in the Murdaugh murders. That report stated only that “On June 7, 2021 at approximately 2226 hours I, [REDACTED] responded to 4147 Moselle Rd in Colleton County in reference to two gunshot victims found by the caller. See supplement for details.” The rest of the page was redacted and no supplement was provided.
Journalists were soon able to learn more about the case, and the murders turned out to just be the tip of a seemingly ever-expanding web of deceit and corruption surrounding disgraced attorney Alex Murdaugh.
But the police should be releasing more than these scant generalities. While there certainly may be a need in some cases to withhold information as an investigation continues, law enforcement agencies in South Carolina should be doing their best to meet the purposes of the state’s FOIA law, which states that “it is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy,” and that the activities of their public officials should be made available “at a minimum cost or delay to the persons seeking access … .”
In short, as the Supreme Court of South Carolina stated in 2001, the FOIA “was enacted to prevent the government from acting in secret.”
This has been a long-term problem. A lawsuit similar to The Post and Courier’s was filed in 2015 by the Greenville News, the (Anderson) Independent Mail and The (Seneca) Journal over SLED’s refusal to release records it received from the Seneca Police Department regarding an officer’s killing of Zachary Hammond. That case was dismissed after SLED agreed to release some of the materials. Another lawsuit brought by the (Greenwood) Index-Journal led to a court order that SLED release some materials.
The Post and Courier lawsuit over the Murdaugh records had a similar result, with SLED and the Colleton County Sheriff releasing more information shortly after the lawsuit was filed. The judge then reviewed the information that was still withheld and ruled that these remaining redactions were justified. The parties then mutually agreed to dismiss the case.
In the 1990’s, SLED went so far as to claim that it was not required to release any information contained in criminal investigative reports. This was rejected by the South Carolina Supreme Court, with the court holding that the agency’s blanket refusal to disclose anything from the reports was “in direct contravention of the clear language of the FOIA.”
The media should not have to undertake the expense of litigation to force police agencies in our state to release more than basic information about investigations. While there certainly is the need for secrecy in some circumstances, police agencies must realize that the default—as expressed in the FOIA law—is that information on issues of public safety and concern should be disclosed to the press and public.
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.