AG’s Office: Beaufort Co. doesn’t have authority to require affidavits for public records
A month after Beaufort County proposed a public records policy that required some citizens to sign an affidavit before records are released, the S.C. Attorney General’s Office said local governments do not have authority to require an affidavit when someone files a records request under the Freedom of Information Act.
In a March 15 opinion, Assistant Attorney General Matthew Houck said a court would likely agree that the S.C. Freedom of Information Act does not authorize Beaufort County to require citizens to sign an affidavit before public records are released.
The opinion came after The Island Packet and Beaufort Gazette reported that Beaufort County was considering a new policy that could restrict the public’s right to access government records.
Since then, Beaufort County’s elected officials have postponed a vote on the policy twice — once at a full council meeting and another during an executive committee meeting. On March 1, the council voted to postpone the vote until the next executive committee, which is scheduled for April 5.
Beaufort County asked the AG’s Office to weigh in on the policy, citing an “objection” to the required affidavit. In its request for an opinion, the county claimed that requiring some citizens to sign an affidavit form was a “reasonable measure,” citing a line in the Family Privacy Act.
But, the AG’s Office said it found nothing to support that reasonable measures include requiring people to sign affidavit forms before records are released.
The newspapers previously reported that rules laid out in the county’s policy — which included the affidavit requirement, redaction of disciplinary issues and withholding of video and audio recordings — gave some legal experts pause. Bill Rogers, executive director of the S.C. Press Association, called the policy “overkill” and said Beaufort County “missed the point” of the S.C. Freedom of Information Act.
The county’s proposed policy requires citizens who request “extensive” tax records, housing records or records “pertaining to a large number of citizens in the county,” to swear the records will not be used for commercial solicitation. The affidavit in the policy requires a notary and signatures of two witnesses.
Taylor Smith, an attorney who litigates Freedom of Information Act cases, previously told the newspapers that the affidavit requirement represented “yet another hurdle to accessing information at minimum cost or delay, which the state open record laws require.”
It’s not the government’s job, he said, to police whether a person intends to sell the records under penalty of perjury. It’s up to the requester to know the law.
The seven-page opinion released by the AG’s Office appeared to bolster Smith’s argument.
Smith said Monday he was grateful the office didn’t say affidavit forms are required for public records requests. Beaufort County should remove the affidavit requirement from its public records policy, he said.
“This is not something they’re allowed to do,” he said. “If you’re making a South Carolina FOIA request policy, you cannot require this particular thing be done before you get your record.”
Contacted by a reporter Monday, Council Chair Joe Passiment said he had not seen the AG’s Opinion, but said he expected county staff to present it to council Monday evening. The proposed policy was not listed on Monday night’s agenda.
Council member Chris Hervochon, called Monday, said the county should remove the affidavit requirement from the proposed policy.
“I questioned it in public the last time we talked about it,” he said. “I don’t know, broadly, why we would be implementing policies that go against AG opinions.”
