NEWBERRY — After a Circuit Court judge found that Newberry County violated both the letter and spirit of the Freedom of Information Act by not setting forth the “specific purpose” of an executive session in its minutes, County Administrator Wayne Adams said he has asked legal council to make sure they are in compliance.
“I have prepared motions for executive session for the July 19 County Council meeting, and I have asked legal council to review to make sure they are in compliance with the judge’s order,” Adams said.
In September 2016, attorney Desa Ballard sought a declaratory judgment that Newberry County violated FOIA and the Public Records Act by failing to preserve documents as required by state law, failing to provide those documents as required by FOIA, and failing to provide other documents subject to FOIA in a timely manner. She also alleged that the county failed to properly announce the “specific purpose” of executive meetings as required by law.
Ballard sought an award of attorney fees pursuant to South Carolina Code.
According to court documents, on Dec. 2, 2014 as a part of Ballard’s representation of a client, she served an FOIA request on Newberry County seeking a number of documents. She narrowed her request to include email and text messages to and from Adams as they were related to the magistrate’s court.
Ballard was later informed that Adams’ computer had crashed in March 2014, and that the emails from the computer had not been archived. Only emails from March 2014 forward could be provided.
Dylan Snyder, Newberry County’s Information Technology director in 2014, testified that he examined Adams’ computer immediately after the crash and that after running diagnostic tests on the computer, found it to be “completely toasted.” This meant that the hard drive was so useless that no data could have been recovered without outsourcing from a recovery procedure that was both expensive and not guaranteed to be successful, according to court documents.
As to the FOIA request for Adams’ text messages, none were provided. Adams testified that he may have conducted county business via text message, albeit “very seldom.” Newberry County does not archive or save text messages in any way.
Court documents state that it appears from exhibits and testimony that, as of the date of the trial, Newberry County had no system in place for backing up or archiving county emails, no connected email servers, no cloud storage and no end user back-ups.
Jay Tothacer, the county attorney, testified that the only e-mail archiving done by Newberry County is what individual users do on their computers.
Judge Thomas Russo, in his ruling, determined that Newberry County violated the FOIA act and that Ballard was entitled to relief.
While Ballard in her complaint requested Newberry County employ, at its expense, any necessary technology consultants to retrieve the records at issue, it appeared from the evidence that the records were inadvertently destroyed, according to court documents.
Based on that, Russo wrote that relief did not appear to be available.
Russo further determined that Ballard had no standing to bring a private cause of action against Newberry County under the Public Records Act, and therefore declined to make any further findings of fact or conclusions of law on the issue.
“We did provide more than 2,000 documents based on the FOIA request that was made. We made every effort to recover the lost items. We even went to other computers to find them. The computer crash came well before this FOIA request,” Adams said.
As an interim system, Adam’s attached a separate backup device to his computer system. He also said the county has been in discussion with its IT provider and recently moved from a system of one IT professional to having an IT system provider.
In August, Newberry County will put into place a cloud-based system of managing and archiving all of its emails through Microsoft Office 365. This will cover 125 users.
“That will have a one time set up of $10,650 and then $20,880 annual maintenance cost. This is already budgeted and contracted. We have been moving toward that since before the case went to trial,” Adams said.
In regards to Newberry County failing to properly announce the “specific purpose” of executive meetings as required by law, according to court documents, Ballard said Newberry County merely recited SC Code Section 30-4-70 verbatim, in whole or in part, and in such a general way that the specific topic of the actual executive session was hidden and the public had no way of knowing what was being discussed.
For example, in reference to an Aug. 20, 2014, the County Council meeting agenda contains redacted matters relating to executive session. The minutes then announce the executive session as “the receipt of legal advice where the legal advice relates to a pending, threatened, or potential claim or other matters covered by the attorney-client privilege” which is identical to the SC Code.
The court found that Newberry County violated FOIA because FOIA mandates that the “specific purpose” of the session must be announced. Therefore, FOIA is not satisfied merely because residents have some idea of what a public body might discuss in private.
The court ordered that Newberry County must, within 30 days of the order, submit to Ballard the redacted information contained in the Aug. 20, 2014, County Council meeting agenda, along with any documentation that reflects the discussions during that executive session.
Newberry County is required in the future to properly announce the specific purpose of the executive session and not merely recite the statutory language. Newberry County, within 30 days of the order, also pay Ballard her awarded attorney’s fees and costs in the amount of $13,708.63.
“One of the two significant points in the opinion is the county’s obligation to retain copies of the correspondence and emails related to county business,” Ballard said. “We felt like the existing FOIA covered that clearly. This opinion seemed to agree with us. Since then, FOIA has been amended to specifically include among the things that have to be preserved, electronic communications.
“We are pleased that the judge as well as the General Assembly agreed with us about the county’s obligation to maintain electronic communications” Ballard said. “More important part of the decision deals with the executive session minutes. Again we thought the law was clear before the judge’s decision, but it is extra clear now. It applies to all 46 counties, so this does not just affect Newberry. My understanding is that Newberry has not changed their procedure for putting on the agenda what the topic of the executive session is going to be. It is entirely possible that all the executive sessions for the last three years are subject to disclosure.”
