Bar Complaints Against Prosecutor Exempt From FOIA
The South Carolina Court of Appeals affirmed an order denying access to bar complaints against a prosecutor
In this action pursuant to the Freedom of Information Act (FOIA), South Carolina Lawyers Weekly (Appellant) asserts the circuit court erred in refusing to compel Scarlett Wilson, as Solicitor of the Ninth Judicial Circuit, to produce any disciplinary complaints against her. Appellant argues the circuit court erred by: (1) failing to find Wilson is a public officer and her office is a public body subject to FOIA; (2) relying on Rule 12 of the Rules of Lawyer Disciplinary Enforcement to determine the requested documents are not required to be disclosed; (3) finding the documents were exempt from FOIA pursuant to S.C. Code Ann. § 30-4-40(a) (2007 & Supp. 2017); and (4) failing to find Wilson waived her right to confidentiality. We affirm.
The story
On July 10, 2015, Phillip Bantz, a staff writer for South Carolina Lawyers Weekly sent a FOIA request to Solicitor Wilson’s official email address requesting “any records relating to any disciplinary complaints against you or action taken with respect to you as a member of the bar.”
The Ninth Circuit Solicitor’s Office (the Solicitor’s Office) responded, on official letterhead, and denied Bantz’s request. The office noted, “In the last year a number of grievances have been filed against Ms. Wilson by or at the behest of disgruntled criminal defense lawyers . . . . The South Carolina Office of Disciplinary Counsel thoroughly investigated these matters and recommended dismissal of all of these charges.”
In denying the FOIA request, the Solicitor’s Office noted that “[w]hile the Solicitor’s Office is a ‘public body’ and subject to FOIA, Ms. Wilson is not personally a ‘public body.'”
The court found no waiver
Initially, Appellant asserts Solicitor Wilson waived her right to confidentiality of the requested documents by referring to their existence in her FOIA response. We disagree.
The Bar rules govern
Based on the plain language of Rule 12(b), complaints filed with the Office of Disciplinary Counsel do not become public documents until formal charges are filed and 30 days have passed after the filing of an answer, or in the absence of an answer, 30 days after the time to file an answer has expired. Because Rule 12(b) indicates lawyer disciplinary complaints do not become public until after formal charges are filed, and no formal charges were filed against Solicitor Wilson, any complaints would not be public documents, and Solicitor Wilson would not be required to be disclose them pursuant to FOIA.
(Mike Frisch)