Civil Rights – FOIA Request – Charitable Organization – State Involvement – Private Schools – Exceptional Children

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The South Carolina Educational Credit for Exceptional Needs Children Fund was set up by the General Assembly, and our Department of Revenue is minimally involved in operating the Fund. However, the money in the Fund comes from private sources and is distributed as scholarships for children with exceptional needs. The Fund is not a public body subject to the Freedom of Information Act.

We affirm summary judgment for the respondent-Fund.

Under DomainsNewMedia.com v. Hilton Head Island-Bluffton Chamber of Commerce, 423 S.C. 295, 814 S.E.2d 513 (2018), the Fund is not a public body for the purposes of the FOIA. The support that the Fund receives in the form of likely fleeting assistance from state officials and use of the state fundraising platform is de minimis rather than the diversion of “a block of public funds . . . en masse” or “the management of the expenditure of public funds.” Weston v. Carolina Research & Dev. Found., 303 S.C. 398, 401 S.E.2d 161 (1991).

Furthermore, the legislation creating the Fund includes a reporting and accountability mechanism not unlike the measures considered relevant by the DomainsNewMedia.com court. Finally, the Fund is at least technically independent of the state.

We categorically disagree with the circuit court’s conclusion that the meetings of a public body “can be closed meetings” if aspects of the discussion at those meetings—even all aspects—are exempt from the FOIA. That is not what FOIA says. See S.C. Code Ann. § 30-4-60 (“Every meeting of all public bodies shall be open to the public unless closed pursuant to Section 30-4-70 of this chapter.”). Instead, the General Assembly has provided that certain issues may be discussed in closed session. See § 30-4-70(a) (listing reasons that may justify executive sessions). And the FOIA lays out a procedure for going into executive session that requires a public vote to do so and prohibits a vote in executive session to take action.

In any event, we need not address that issue directly, because under our precedents, the Fund is not a public body for the purposes of the FOIA. The occasional and relatively minor activities undertaken by the Department of Revenue’s employees do not represent the en masse diversion of state resources required by DomainsNewMedia.com to hold otherwise.

Affirmed.

Davis v. South Carolina Educational Credit for Exceptional Needs Children Fund (Lawyers Weekly No. 011-061-23, 21 pp.) (John Geathers, J.) Appealed from Richland County Circuit Court (DeAndrea Benjamin, J.) Jefferson Davis, pro se; Geoffrey Kelly Chambers for respondent. South Carolina Court of Appeals