CURETON, A.J.
Stephen Brock sued the Town of Mount Pleasant (the Town) under South Carolina's Freedom of Information Act (FOIA) and Public Records Retention Act (RRA), requesting declaratory judgments and injunctive relief relating to how the Town conducted its meetings and kept its records. The trial court granted the requested relief as to some issues and awarded Brock $42,000.00 in attorney's fees and costs. Brock appeals, arguing the trial court erred in failing to: (1) find the Town violated FOIA when it took action on matters without giving the public proper notice; (2) find the Town violated FOIA when its announcements of executive sessions violated FOIA's specific purpose provision; (3) find the Town violated RRA by deleting e-mails; and (4) award the full amount of requested attorney's fees and costs. We affirm in part, reverse in part, and remand.
In 2007, Mark Mason, an attorney in the Town, owned the "O.K. Tire Store property" (O.K. Tire Store), a large piece of property that included access to Shem Creek. The Town was very interested in obtaining the property and in the summer and fall of 2007, negotiations between the Town's town council (Town Council) and Mason increased. According to Mac Burdette,
Town Council's entire "meeting notice" for its November 13, 2007 meeting (November 13 meeting) stated:
Town Council's "meeting notice" for its November 16, 2007 meeting (November 16 meeting) only included one item, stating:
Once the mayor called the meeting to order, Burdette "asked that Council amend the agenda to include personnel matters pertaining to the Clerk of Council." Town Council passed "a motion to amend the agenda as stated by" Burdette and "a motion to amend the agenda to add personnel matters relating to the Boards and Commissions." Thereafter, the mayor "indicated a motion was needed to adjourn into executive session regarding legal advice pertaining to the OK Tire property litigation and to discuss other personnel matters as mentioned," and the Town's attorney "clarified that this was an executive session regarding all three matters mentioned." Town Council then adjourned into executive session and upon reconvening, the mayor indicated no actions or votes were taken during the executive session. Subsequently, Town
The "agenda" for the December 5, 2007 meeting (December 5 meeting) stated in pertinent part:
Shortly after the meeting began, Town Council passed motions "to amend the agenda by adding under Item H Executive Session, an item to receive legal advice pertaining to the OK Tire Store Litigation" and "to amend the agenda by deferring item H.3 under Executive Session, until the January Town Council meeting." During the meeting, after Town Council discussed items I through XII (G), Burdette asked Town Council to adjourn into executive session to discuss
In 2009, Brock filed an amended complaint against the Town arguing, among other things, the Town violated FOIA by: (1) failing to give notice of a proposed action at its December 5 meeting; (2) failing to announce the specific purpose for executive sessions held at its November 13 and November 16 meetings; and (3) participating in illegal communication via e-mail. Additionally, Brock argued the Town violated RRA by routinely destroying and deleting those emails. Thereafter, the parties proceeded to trial.
Mason testified he was never informed that any part of the O.K. Tire Store settlement agreement executed on December 6, 2007, was subject to further consideration or ratification by council. Mason maintained he would have given Town Council an additional twenty-four hours to make a decision had Town Council requested an extension. Yet, he admitted he delivered the settlement document to Town Council on December 5, 2007, and required Town Council to sign and return the document by 5:00 p.m. December 6, 2007, or he would have moved forward with the pending property litigation.
At their depositions in 2009, two councilmembers testified all e-mail communication exchanged between councilmembers regarding town business occurred on private e-mail accounts and they regularly deleted those e-mails. The councilmembers confirmed Town Council did not have a retention policy
The trial court issued a final order stating: "Regarding Mr. Brock's contentions Town Council violated S.C.Code Ann. § 30-40-80(a) (Notice of meetings of public bodies) on 5 December 2007, when Town Council added an item to the previously posted Town Council meeting agenda, the [trial c]ourt concludes the Town's actions did not violate FOIA." Therefore, the trial court dismissed "Count I of [Brock's] Amended Complaint which claimed the Town violated FOIA by amending Town Council meeting agendas." Further, the trial court found Brock failed to produce sufficient evidence showing the Town violated FOIA by failing to announce the specific purpose of executive sessions at the November 13, November 16, and December 5 meetings. The trial court declined to find the Town violated RRA by Town Council's past actions of deleting e-mails discussing town business, finding the law in that that area is constantly developing, and the Town has since assigned councilmembers laptops and email accounts, and adopted the Computer Policy.
However, the trial court found Brock presented sufficient evidence demonstrating the Town violated FOIA by acts not subject to this appeal and awarded Brock injunctive relief on those issues. The trial court also enjoined Town Council from "deleting, destroying, or otherwise eliminating any Town electronic communications concerning public business except to the extent such destruction is accomplished in accordance with a lawfully established records retention policy." The trial court awarded Brock $42,000.00 in attorney's fees and costs.
"Declaratory judgments in and of themselves are neither legal nor equitable." Campbell v. Marion Cnty. Hosp. Dint, 354 S.C. 274, 279, 580 S.E.2d 163, 165 (Ct.App.2003). "The standard of review for a declaratory judgment action is therefore determined by the nature of the underlying issue." Wiedemann v. Town of Hilton Head Island, 344 S.C. 233, 236, 542 S.E.2d 752, 753 (Ct.App.2001). "Actions for injunctive relief are equitable in nature." Grosshuesch v. Cramer, 367 S.C. 1, 4, 623 S.E.2d 833, 834 (2005). "In equitable actions, an appellate court may review the record and make findings of fact in accordance with its own view of the preponderance of the evidence." Denman v. City of Columbia, 387 S.C. 131, 140, 691 S.E.2d 465, 470 (2010). "An injunction is a drastic remedy issued by the court in its discretion to prevent irreparable
Relying in part on Lambries I,
FOIA was enacted based on the General Assembly's finding "that it is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in
Section 30-4-80(a) of the South Carolina Code (2007) distinguishes between the notice requirements for regular, special, and emergency meetings of public bodies. The statute provides the notice for regular meetings "must include the dates, times, and places of such meetings. Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty-four hours prior to such meetings." Id. For special meetings, the statute provides: "public bodies must post on such bulletin board public notice for any called, special, or rescheduled meetings. Such notice must be posted as early as is practicable but not later than twenty-four hours before the meeting. The notice must include the agenda, date, time, and place of the meeting." Id. Finally, the statute states, "This requirement does not apply to emergency meetings of public bodies." Id. Further, the term "agenda" is not defined in FOIA. See S.C.Code Ann. § 30-4-20 (2007); Lambries II, 409 S.C. at 12, 760 S.E.2d at 790 (stating "agenda (which is undefined in FOIA)" (quotation marks and citation omitted)).
In Lambries I, 398 S.C. at 505-06, 728 S.E.2d at 490-91, this court decided a published agenda for a regularly scheduled meeting could not be amended during the meeting without violating FOIA. Recently, however, our supreme court in Lambries II, 409 S.C. at 18, 760 S.E.2d at 794, reversed Lambries I and held: "In the absence of such a legislative directive here, we decline to judicially impose a restriction on the amendment of an agenda for a regularly scheduled meeting, especially when it is clear that no agenda is required at all." Further, the Lambries II court stated, "We find this is also the better public policy in light of the fact that a violation of FOIA can carry a criminal penalty, and we note this Court has previously declined to impose restrictions that are not expressly provided by the General Assembly in FOIA." Id.
Id.
FOIA "originally allowed formal action to be taken in executive session if the action was later ratified in public." Piedmont Pub. Serv. Dist. v. Cowart, 319 S.C. 124, 129, 459 S.E.2d 876, 878 (Ct.App.1995), aff'd, 324 S.C. 239, 478 S.E.2d 836 (1996). "However, the 1987 amendments to [FOIA] deleted the language allowing ratification of votes taken in executive session and specifically prohibited voting while in executive session." Id. "By affirmatively deleting the ratification language, the legislature made its intent clear. Ratification no longer validates a vote cast during an executive session." Id. at 129, 459 S.E.2d at 879.
As an initial matter, we find Brock's arguments regarding the trial court's rulings on: the applicability of Multimedia, Herald, and ratification provisions; exemptions to FOIA's provisions; and the alleged repeated FOIA violations are not preserved. While Brock's Rule 59(e) motion and reply to the Town's return outlined these issues, Brock chose not to
To the extent Brock's notice issue is preserved, section 30-4-80 does not support his position. That section requires public bodies to post agendas for special meetings twenty-four hours before the meetings; however, it does not specifically require the agenda to include what action the public bodies plan to take. See § 304-80 ("All public bodies must post on such bulletin board public notice for any called, special, or rescheduled meetings. Such notice must be posted as early as is practicable but not later than twenty-four hours before the meeting. The notice must include the agenda, date, time, and place of the meeting."). In fact, Brock points to no provision in the statutory language of FOIA which states the public body must include the exact action it plans to take on a meeting agenda. See Lambries II, 409 S.C. at 12, 760 S.E.2d at 790 (stating "agenda (which is undefined in FOIA)" (quotation marks and citation omitted)). Brock conceded Town Council regularly posted an agenda at least twenty-four hours before each regular and special meeting. As the trial court noted, Town Council could not have known what action it would take — to include on an agenda — prior to discussing the relative legal issues and personnel matters during executive session. From the posted and amended agendas, the public and press had notice Town Council desired to confer with its
Furthermore, as the Town correctly points out, FOIA does not mandate an agenda for executive sessions. See Herald, 291 S.C. at 11, 351 S.E.2d at 883 ("The Act does not require that an agenda for an executive session be posted or that the news media be notified of the agenda of an executive session."); id. ("Practically speaking, it is easily foreseeable that public bodies might not know what will be taken up in executive session until they are meeting in an open session."). To require Town Council to notify the public of the exact actions it plans to take after an executive session seems inapposite to provisions allowing for closed sessions. See Cooper v. Bales, 268 S.C. 270, 274-75, 233 S.E.2d 306, 308 (1977) (holding sections of FOIA must be harmoniously construed to preclude disclosure of minutes of executive sessions). Town Council gave the public notice of pending issues, allowed the public to present its comments on the topics, and never took action during executive session. Accordingly, we hold the trial court did not err as to this issue.
Citing Quality Towing,
(emphasis added).
In Quality Towing, 345 S.C. at 164, 547 S.E.2d at 866, the city council's meeting minutes stated:
The Quality Towing court held the meeting minutes reflected the city council failed to announce the specific purpose of the executive session. 345 S.C. at 164, 547 S.E.2d at 866.
We find this case is distinguishable from Quality Towing with regards to the November 16 and December 5 meetings. Here, unlike Quality Towing, Burdette, along with the Town's attorney's clarifications, sufficiently announced the purpose of these two executive sessions when they disclosed exactly what was going to be discussed. See § 30-4-70(b) (defining "specific purpose"). Brock maintains Town Council should have been more specific in its announcements. For example, Brock avers Town Council should have stated "settlement offer for O.K. Tire Store" instead of "legal advice pertaining to O.K. Tire Store" or "adjustment of the position requirements and compensation for the clerk of council" instead of "personnel matters related to the clerk of council." We find FOIA does not require such specificity. Accordingly, the trial court did not err in finding the Town did not violate FOIA by failing to state the specific purpose for adjourning into executive sessions at the November 16 and December 5 meetings.
Brock argues that while the trial court correctly granted injunctive relief to prevent future occurrences of the destruction of e-mails, it erred in failing to find Town Council's past destruction of e-mails constituted a violation of the RRA. We disagree.
RRA refers to FOIA for its definition of "public record." S.C.Code Ann. § 30-110(A) (2007). FOIA defines public record as "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body." S.C.Code Ann. § 30-4-20(c) (2007). RRA provides, "A person who unlawfully removes a public record from the office where it usually is kept or alters, defaces, mutilates, secretes, or destroys it is guilty of a misdemeanor." S.C.Code Ann. § 30-1-30 (2007).
The trial court did not issue a judgment with regard to Town Council's past actions of deleting e-mails, properly finding the law in this area is ever developing and the Town has since adopted the Computer Policy. We find the trial court did not abuse its discretion in declining to issue a declaratory judgment as to this issue.
Brock argues the trial court erred in failing to award the attorney's fees and costs necessary in bringing this action.
Section § 30-4-100 (b) of FOIA provides: "If a person or entity seeking such relief prevails, he or it may be awarded reasonable attorney fees and other costs of litigation. If such person or entity prevails in part, the court may in its discretion award him or it reasonable attorney fees or an appropriate portion thereof." "The award, however, must be reasonable and supported by adequate findings." Burton v. York Cnty. Sheriffs Dep't, 358 S.C. 339, 357-58, 594 S.E.2d 888, 898 (Ct.App.2004). "No good faith exception exists for an award of attorney's fees under FOIA." New York Times Co. v. Spartanburg Cnty. Sch. Dist. No. 7, 374 S.C. 307, 313, 649 S.E.2d 28, 31 (2007). "Further, on appeal, an award for attorney's fees will be affirmed so long as sufficient evidence in the record supports each factor." Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997).
Among the several factors to be weighed by the trial court in setting a reasonable attorney's fee in a FOIA action is the beneficial result accomplished. In view of our holding the Town also violated FOIA by failing to state the specific purpose for its executive session at the November 13 meeting, we remand the issue of attorney's fees for further consideration consistent with this opinion. See Sloan v. S.C. Dep't of Revenue, 409 S.C. 551, 555-56, 762 S.E.2d 687, 689 (2014) ("As
We affirm the trial court's finding that the Town did not violate section 30-4-80 of FOIA by acting on items added to special meetings agendas upon reconvening to open session. Additionally, we affirm the trial court's finding that the Town did not violate FOIA's specific purpose provision by failing to announce the specific purpose of its executive sessions at the November 16 and December 5 meetings, and its decision not to declare the Town violated RRA by deleting e-mails. However, we reverse the trial court's finding that the Town did not violate the specific purpose provision by failing to announce the specific purpose of its executive session at its November 13 meeting, and remand the attorney's fees issue for further consideration consistent with this opinion.
HUFF and SHORT, JJ., concur.