SOUTH CAROLINA — Advocates of open government in South Carolina recently scored a victory when the Court of Appeals affirmed the Freedom of Information Act (FOIA) in a lawsuit related to the estate of music legend James Brown.

The FOIA lawsuit was filed by former co-trustee of the Brown estate, Adele Pope of Newberry, after Attorney General Alan Wilson refused to release several documents requested under the FOIA in 2011.

The FOIA gives citizens the right to access public documents so that they can learn about the actions of public bodies and public officials.

Among the documents Pope requested were: 1) a copy of AG policies on retaining outside lawyers to represent the State; and 2) the contingency-fee contract with the Columbia law firm Sweeney, Wingate and Barrow, under which Pope and co-trustee Robert Buchanan of Aiken were being sued.

The lawsuit against Pope and Buchanan, Richland 4900, was brought in 2010 by the AG in partnership with those who contested the will of James Brown.

Brown’s will left his music empire, including 850+ songs and rights to his image, to an education charity, the “I Feel Good” trust. The will also included a provision that anyone who contested the will would receive nothing.

Then-AG Henry McMaster worked a settlement deal with will contestants that gave them over half of what Brown left to charity. The deal was approved by Aiken Judge Doyet Early in 2009.

Pope and Buchanan appealed the settlement, and soon thereafter they were sued.

Pope’s 2011 filings assert Richland 4900 was an attempt to make the former trustees drop their appeal of the settlement, which the Supreme Court overturned in 2013 as a “dismembering” of Brown’s estate plan.

Because of Richland 4900, the AG argued, Pope was not entitled to documents under the FOIA because she could “potentially” view them during discovery in his lawsuit against her.

In 2016, Judge Early adopted the AG’s position and signed an order that dismissed Pope’s FOIA case.

The Court of Appeals overturned the order in June and ruled that being sued by a public body does not diminish a citizen’s FOIA rights.

In a recent interview, Pope’s attorney, Adam Silvernail of Columbia, said the FOIA and discovery are different processes.

During discovery, litigants learn about evidence to be presented at trial by the opposing side. The process can be lengthy and expensive, involving depositions, travel costs, attorney fees, and other expenses.

The FOIA, however, provides citizens with access to public documents “at a minimum cost or delay.” Currently, public officials are given 10 working days to respond to FOIA requests.

If a public body refuses to release public documents, citizens have the right to sue for compliance—but that can be a lengthy and expensive process, too.

Pope’s FOIA case has lasted eight years thus far, at a cost of hundreds of hours in legal fees for Pope’s and the AG’s attorneys.

Silvernail said Pope’s case has been unusual. There have been motions to stay the proceedings (put them on hold) and motions for outside parties to enter the case.

“Most FOIA lawsuits deal with a dispute as to whether the documents are public or fit into the exemptions. The AG never asserted that until 2013,” Silvernail said.

In the June ruling, the Court of Appeals makes clear that public bodies have the burden of proving a document fits into a specific exemption listed in the FOIA law.

Silvernail said, “All this litigation should not have been necessary. A federal court judge declared the contract a public document in 2013, and the contract says this is a public document and subject to FOIA.”

The contract was released by Federal Judge William Bertelsman in another Brown-related case.

The June ruling includes the legislative intent of FOIA: “(I)t is vital in a democratic society that public business be performed in an open and public manner.”

Silvernail hopes this ruling will deter public officials from withholding documents. “Our courts have consistently treated FOIA as an important issue, and this decision affirms that. It should serve as a lesson to public bodies and government officials.”

In a publication of the South Carolina Press Association, even AG Alan Wilson advises public officials, “When in doubt, disclose the public record.”

The Court of Appeals has remanded the FOIA case for further proceedings “consistent with this opinion.”

Sue Summer or The Newberry Observer