The 2018 lawsuit brought against the city of North Augusta, its mayor and City Council over an alleged violation of the Freedom of Information Act is now “forever ended.”
The South Carolina Supreme Court on April 16 issued its order denying certiorari in the case brought by North Augusta resident H. Perry Holcomb in November 2018. The state Court of Appeals a year ago overturned the lower court's order, which had favored Holcomb, to instead side with the city of North Augusta.
With the Supreme Court declining to hear it and the remittitur now filed, “the case is forever ended,” North Augusta city attorney Kelly Zier said.
The case stemmed from a May 7, 2018, City Council meeting.
The council at the time was considering which projects to fund via the penny sales tax, the fourth round of which was that year coming to Aiken County voters for renewal.
A tentative project list was made available ahead of the discussion as part of a document titled “Agenda 050718 Complete.” It was this document that Holcomb in his lawsuit claimed represented the City Council agenda — something that the Freedom of Information Act does not permit to be changed without 24 hours’ public notice.
During the meeting of May 7, 2018, that project list was amended to include $500,000 for the New Savannah Lock and Dam, itself the subject of litigation. Holcomb, in his complaint, argued that this constituted a change to the agenda and so violated the FOIA.
But the city, throughout the course of litigation, maintained that the actual agenda was a separate document, also posted to the city website and more simply titled, “Agenda 050718," and that the agenda referenced by Holcomb was supplementary information the city is not required to provide in advance.
Circuit Court Judge Clifton B. Newman sided with Holcomb in his October 2019 order that homed in on the city’s also naming the supplementary information as an agenda.
The city of North Augusta “amended the list of projects without making a finding of emergency or exigent circumstances,” Judge Newman wrote. “In this manner, Defendants violated FOIA and failed to fulfill their obligations to the public and the Plaintiff.”
The city had requested either a new trial of the case or an alteration of findings but was denied. The city then initiated its appeal.
That appeal was decided last April when a three-judge panel reversed Newman’s order and determined that Holcomb’s interpretation of the term “agenda” was incorrect and, further, that “if we were to adopt the respondent’s [Holcomb’s] position, we would be effectively holding that the City was required to pin all thirty-six pages of the longer document – with all of the supplemental information – to its bulletin board.”
"A prudent public body would no doubt err on the side of not providing background information before meetings so it could avoid any threat of litigation, but that would thwart rather than forward FOIA’s purpose,” the appellate court decided.
The court took the same view as the South Carolina Municipal Association, which attached itself to the case during appeal. Both the appellate court and the municipal association opined that interpreting the case as Circuit Court Judge Newman did, and as Holcomb argued, would actually be detrimental to FOIA.
Upholding the lower court’s decision “would force municipalities to choose between reducing public disclosure prior to a meeting or risking legislative paralysis at the meeting,” the municipal association wrote in its amicus brief filed in November 2022. “Neither municipal governments nor the citizens they serve would benefit from this approach.”
Early in the litigation, before even Judge Newman issued his order in favor of Holcomb, the city of North Augusta revised how it publishes documents for public meetings.
Starting with the first regular City Council meeting of 2019, the city has clearly differentiated between an agenda and other documents by labeling them as an “agenda,” “memo,” “backup materials” or “attachments.”
That practice continues.
