A routine request for a public document turned into a legal fight after an anonymous party attempted to block the release of an internal investigation into citizen complaints against a former Beaufort County sheriff’s deputy.
The Island Packet and The Beaufort Gazette asked the Beaufort County Sheriff’s Office in May for a copy of an internal investigation it conducted into the activities of Staff Sgt. DeJuan Holmes. The investigation was ordered by Sheriff P.J. Tanner after two Hilton Head citizens filed complaints against the deputy on April 27, alleging that he used his police vehicle and equipment to facilitate “an adulterous relationship” and abused his position by running a license plate check on an individual without cause.
The S.C. Freedom of Information Act allows the public and media access to documents produced by law enforcement agencies, towns and other taxpayer-supported offices. The openness allows the public to assess the performance of the agencies it funds. Occasionally, the agency from which the information is sought will try to fight the release of information. This case is rare because the opposition to the release of information came from an unnamed third party and not one of the agencies involved: the Sheriff’s Office or Beaufort County.
The plaintiff’s attorney, Kimberly Smith, filed a motion on May 27 to block release of the report, arguing that the internal investigation report was of a personal nature and served no public interest. Further, in a letter dated June 3 to Carl Muller, a Greenville-based attorney representing the newspapers, Smith writes that the allegations “remain unfounded and are based on slanderous and malicious acts and accusations of a scorned husband.”
The documents, which Beaufort County Special Circuit Court Judge Marvin Dukes eventually ruled public, identify the people making the complaints against Holmes as Chris O’Nan and Karen Anderson of Hilton Head. A third complaint was signed by attorney Lauren Martel, who was representing O’Nan at the time but told the investigator she had no direct knowledge of the allegations.
Although he released the documents, Dukes ordered redactions of the name of the person allegedly involved with Holmes and also the identity of that person’s workplace. Among the allegations is a claim Holmes and the person whose name was redacted would meet inside the person’s workplace late at night. Because Holmes resigned when advised of the allegations, the Sheriff’s Office closed its inquiry without further investigating the allegations.
Dukes wrote that he “redacted written portions of the inquiry which do not deal directly with the (Holmes) investigation, fail to meet the public purpose, and which would reasonably invade the personal privacy of persons merely named in the inquiry.”
Former South Carolina Press Association attorney and media law expert Jay Bender disagrees with Dukes’ decision, noting “the law in South Carolina is clear that only the public body can exert the exemptions to (FOIA) law.”
In this case, those public bodies would be Beaufort County and the Sheriff’s Office — neither of which opposed releasing the unredacted investigation documents. Beaufort County administrator Gary Kubic said, “We received the freedom of information request, reviewed it with our legal representatives and had no objections with satisfying the request.”
The Sheriff’s Office also raised no objections. “We were obligated to comply with the FOIA statute, and we did,” Sheriff P.J. Tanner said.
To have a “third party come in and try to enact one of the exemptions to the FOIA has been determined by the courts to be inappropriate, especially if that third party is unidentified,” Bender said.
Bill Rogers, executive director of the S.C. Press Association, also was critical of Dukes’ decision.
“The judge’s ruling seems overly broad,” he said. “I don’t think there is any justification for redacting the report. I think the public has every right to know what’s going on inside their police department.”
And for those listed in a public record, he added, “There is no privacy.”
Muller filed a formal motion for reconsideration on June 15 asking Dukes to revisit his decision to redact portions of the document, noting the government’s lack of objection to the release of the documents and arguing, among other things, that the plaintiff lacks standing to block the release and that the use of government property “removes the alleged activity from the realm of a personal nature.” A hearing is set for Monday.
“I’m pleased that the newspaper is appealing what I consider an incorrect ruling,” Bender said.