Clemson University is a public body subject to the provision of South Carolina’s Freedom of Information Act (“FOIA”). Clemson has always adopted the practice of adhering to both the letter and the spirit of FOIA, and it is our intent to maintain strict compliance with the requirements of the Act. The University routinely receives FOIA requests for documents and records; and the purpose of this link is to offer general guidance to our employees on FOIA, its application to Clemson University and how to properly respond to a request.
South Carolina FOIA applies to all “public bodies.” Clemson University, as a state university, is clearly subject to FOIA. But FOIA also applies to private entities which are “supported in whole or in part by or expending public funds.” The South Carolina Supreme Court has held that private foundations affiliated with public universities, such as the Clemson University Foundation, are public bodies within the meaning of FOIA.
FOIA defines a public record as anything used, prepared, owned, retained or in the possession of a public body. As the definition states, a public record does not have to be created by Clemson for it to be covered by FOIA. Documents that are created by private parties become public records if they are sent to Clemson for our use or are in our possession.
FOIA specifies that a record is not limited to paper documents. It applies to records “regardless of physical form” and specifically includes emails, computer discs, tapes, videotapes or information stored on any form of electronic or other media. The Act explicitly states that emails that are stored or retrievable from a hard drive or back-up tape are public records. Employees should be aware that Clemson Computing and Information Technology (CCIT) routinely stores email messages, including those that have been deleted from individual workstations. This means that email and other materials that you may have deleted or emptied from your workstation “trash” are still recoverable and might be subject to disclosure in the event of a FOIA request.
It is not uncommon for documents or other records to contain information that is “public” while at the same time containing information that is exempt under one of the FOIA exceptions (see below). The Act requires that in such cases, we edit or redact the exempt portions and provide those portions that are public.
A draft document or "work in progress" is still a public record and there is no exception or authorization in the Act that allows us to refuse to disclose a record on the basis of it not being "final." (Note: There may be an exception for records related to unpublished research results or pending contract negotiations. See the section on "Exceptions to disclosure under FOIA" below.)
FOIA applies to existing records, regardless of the form or media in which they exist. An important point is that FOIA does not require Clemson to create a record. Requests to answer questions, research an issue, or provide “customized” reports or data are not covered by FOIA and we are not obligated to comply with such requests.
Most requests for information under South Carolina’s FOIA are in writing but the Act does not require a written request for documents. A telephone or oral request is sufficient. However, we strongly encourage you to ask a requestor to submit the request in writing. A written request gives Clemson a permanent record of the specific request and also ensures that we have a record of precisely what information is being sought. If the requestor refuses to provide a written request, we suggest that you prepare a memo to file of the oral request.
As a general rule, we are not required to honor an unscheduled, “walk in” request for records. However, FOIA requires us to have available and to produce upon demand (1) the last 6 months of minutes of any public meeting and (2) the last 14 days of law enforcement reports indicating the nature, substance and location of any crime or alleged crime reports. For all other unscheduled requests, it is appropriate to require the person making the request to make an appointment or submit a written request.
It is not necessary for a person to specifically mention FOIA in a request. It is not uncommon for persons to cite the Federal Freedom of Information Act, the FOIA law of another state, or some other law or regulation. None of these other laws apply to Clemson and we are not compelled to respond to such requests. However, if the information requested is subject to disclosure under the South Carolina FOIA, we are obligated to provide it whether the requestor cites a federal or other state’s FOIA or does not mention FOIA at all.
There are a number of categories of records which are specifically exempted from disclosure by FOIA. These exemptions are summarized below, but it is important to realize that FOIA creates the presumption that all public records are subject to public disclosure and only those records that clearly fit within one of the exceptions noted below are exempt.
Trade Secrets: Information from a third party (i.e., not information generated by Clemson) is exempt provided such information is identified by the disclosing party as a trade secret. This exception also includes feasibility and planning information developed by state agencies who market services in competition with public or private organizations.
Personal Information: Information which would constitute an "unreasonable invasion of personal privacy” is exempt. Such information would include medical information, Social Security numbers and personal bank accounts. Another SC law (Family Privacy Protection Act) makes it illegal for a state agency to release any personal information on a state employee if that information is going to be used for purposes of commercial solicitation. The Family Protection Act supercedes FOIA.
Law Enforcement Records: Certain law enforcement records are exempt from disclosure. These are records which would identify a police informant, prematurely release information related to a prospective law enforcement action, disclose investigatory techniques or endanger the life, health or property of any person.
Contracts and Property Sales: Any material related to a contemplated contract or the acquisition or disposition of real estate is exempt. This exception includes material related to “economic development.” It is important to realize that this exception only applies while a contract or real estate deal is pending. Once a contract is executed or real property is bought, sold, leased, etc., all materials related to that transaction become public and subject to disclosure, including any drafts.
Compensation of State Employees: FOIA requires Clemson to disclose the salaries of our employees according to a specific formula. For persons making more than $50,000 a year, we must disclose the exact salary amount. For employees making between $30,000 and $50,000 a year, we must disclose the approximate salary in increments of $4,000. For classified employees making less than $30,000 per year we must disclose the compensation range (i.e., the “pay band” for that position). Finally, for unclassified employees earning less than $30,000 we must release compensation in increments of $4,000.
Identity of Charitable Donors: We may protect the identity of donors to Clemson University (or the Foundation) who specify that they wish to remain anonymous. We can only exempt information that would personally identify the donor (e.g., name, address, phone number) but not the amount or nature of the gift.
Employment Searches: FOIA requires us to release, upon request, the materials relating to not fewer than the final three applicants for any job search. If there are more than three finalists, all of their materials are subject to disclosure. There must be at least three “finalists.” We are also required to release the total number of applicants upon request.
University Research Data: Research data created or collected by faculty or staff of Clemson University is exempt from FOIA unless and until it is published, patented or otherwise made public. This applies to all University research and not just extramurally-funded research.
Whistleblowers: FOIA provides that the identity of any individual (not just state employees) who makes a good faith complaint of a violation or potential violation of any law, rule or regulation may not be released.
Other laws: In addition to the specific exemptions under FOIA, there are other state and federal laws that provide for the confidentiality of certain information and these laws take precedence over FOIA. The Family Educational Rights and Privacy Act (“Buckley Amendment”) prohibits disclosure of any educational records of students, including grades, courses and other information. South Carolina law protects the confidentiality of medical, dental and counseling records. Likewise, certain law enforcement records involving minors is protected by state and federal laws. Finally, communications with legal counsel are protected by the attorney-client privilege. However, this privilege applies only to communications with the attorneys in the Office of General Counsel, and attorneys engaged by the University and approved by the South Carolina Attorney General.
FOIA does not require Clemson to maintain any records. The University does have internal record retention policies that all employees and divisions are required to follow. These policies may be found at clemson.edu/employment/professionals/records_retention.html. Please note that these policies include schedules for the routine storage and destruction of records. There is no penalty under FOIA for destroying or failing to maintain a record provided we are in compliance with our University record retention policy. Please note, however, that it is a crime to intentionally destroy a public record after a request for its disclosure has been received.
FOIA allows public bodies to charge their actual, reasonable expenses in retrieving and copying any records pursuant to a request. This does not include any time or resources expended by Clemson in determining if records are subject to FOIA. Reasonable expenses are the actual cost (salary) of the lowest paid individual with the knowledge and skill to retrieve and copy the records, and the actual cost for copying the records requested. We must charge all requestors the same rate. We can require a “reasonable” deposit in advance of searching and copying records. All fees should be paid by check only, made payable to Clemson University. We are not required to charge a fee and we recommend that for simple, routine requests of a few pages of readily available documents, it is probably not worth the expense of billing and collecting to charge a fee.
Responding to a request for information pursuant to FOIA in an appropriate and timely manner can be complicated at times. We suggest that any Clemson employee presented with such a request follow the steps outlined below.