THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Edward D. Sloan, Jr., individually and on behalf of all 

others similarly situated, and South Carolina Public 

Interest Foundation, Appellants, 

v. 

South Carolina Department of Revenue and James F. 

Etter, its Director, Respondents. 

Appellate Case No. 2013-000577 

Appeal from Richland County 

G. Thomas Cooper, Jr., Circuit Court Judge 

Opinion No. 27437 

Heard May 20, 2014 – Filed August 20, 2014 

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED 

James G. Carpenter and Jennifer J. Miller, of Carpenter 

Law Firm, PC, of Greenville, for Appellants. 

Milton G. Kimpson, Adam N. Marinelli, and Harry T. 

Cooper, Jr., of Columbia, for Respondents. 

JUSTICE KITTREDGE: After the South Carolina Department of Revenue 

(DOR) failed to produce public documents requested by Appellant Edward D. 
 

Sloan, Jr., Sloan1 filed this Freedom of Information Act2 (FOIA) action against 

DOR and its director, James F. Etter, seeking declaratory relief, injunctive relief, 

and attorney's fees and costs. After suit was filed, DOR produced the requested 

information and asserted that Sloan's action was mooted and should be dismissed. 

The trial court agreed with DOR and dismissed the complaint, denying all relief. 

We affirm in part, reverse in part, and remand for an award of reasonable attorney's 

fees and costs to Sloan. 

I. 

On November 19, 2012, Sloan sent a FOIA request to DOR, seeking specific 

documents related to the procurement process through which DOR retained a 

computer security company in response to a cyber-attack on DOR databases. 

DOR responded to Sloan by letter on December 10, 2012: 

The South Carolina Department of Revenue has received your 

Freedom of Information request dated November 19, 2012. Your 

request is currently being researched and reviewed. As soon as the 

information has been compiled, you will be contacted again and the 

requested information will be sent to you. 

If we are unable to locate, obtain or release the requested file(s) you 

will be notified of the decision and the reasons for it. 

"The purpose of FOIA is to protect the public by providing a mechanism for the 

disclosure of information by public bodies." Sloan v. Friends of the Hunley, Inc. 

(Friends I), 369 S.C. 20, 26, 630 S.E.2d 474, 478 (2006) (citing Bellamy v. Brown, 

305 S.C. 291, 295, 408 S.E.2d 219, 221 (1991)). To that end, FOIA provides: 

Each public body, upon written request for records made under this 

chapter, shall within fifteen days (excepting Saturdays, Sundays, and 

legal public holidays) of the receipt of any such request notify the 

1

 Sloan brought this action on behalf of himself and all others similarly situated as 

well as the South Carolina Public Interest Foundation. We refer to these parties 

collectively as "Sloan." 

2

 S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp. 2013). 
person making such request of its determination and the reasons 

therefor. Such a determination shall constitute the final opinion of the 

public body as to the public availability of the requested public record 

and, if the request is granted, the record must be furnished or made 

available for inspection or copying. If written notification of the 

determination of the public body as to the availability of the requested 

public record is neither mailed nor personally delivered to the person 

requesting the document within the fifteen days allowed herein, the 

request must be considered approved. 

S.C. Code Ann. § 30-4-30(c) (2007) (emphasis added). Part of the December 10, 

2012 letter appears compliant with section 30-4-30(c), but the final one-sentence 

paragraph—the "if we are unable to . . . release the requested file(s) you will be 

notified of the decision" language—seeks to delay DOR's final determination as to 

the public availability of the requested documents. DOR's response is best 

characterized as "we will get to it when we get to it," which is manifestly at odds 

with the clarity mandated by section 30-4-30(c). 

When a public body does not render a final opinion within the fifteen-day 

determination period, FOIA provides for both declaratory and injunctive relief. Id. 

§ 30-4-100(a) (2007). FOIA also provides for attorney's fees and costs to the 

prevailing party. Id. § 30-4-100(b) (2007). 

Because DOR's response did not satisfy the requirements of FOIA, Sloan filed suit 

on December 21, 2012, seeking a declaratory judgment that DOR's actions violated 

FOIA, an injunction requiring DOR to cease violating FOIA by producing the 

requested documents, and attorney's fees and costs pursuant to section 30-4-100(b). 

Three weeks after Sloan filed suit, DOR provided Sloan with the documents he had 

requested. The trial court held a hearing at which Sloan conceded that his request 

for injunctive relief was mooted by DOR's production of documents, but Sloan 

maintained that his request for declaratory relief and attorney's fees and costs 

remained viable. Conversely, DOR contended Sloan was entitled to no relief. The 

trial court, in a Form 4 order, summarily ended the case, thereby agreeing with 

DOR and denying all relief Sloan sought. Sloan appealed, and this Court certified 

the appeal pursuant to Rule 204(b), SCACR. 
 

 

II. 

On appeal, Sloan contends that DOR did not comply with FOIA, that his claim for 

declaratory relief was not mooted by DOR's production of documents, and that he 

is entitled to reasonable attorney's fees and costs. 

DOR's response did not comply with the statutory dictates of FOIA. While DOR 

did respond to Sloan, its equivocal and evasive response was not a final opinion on 

the public availability of the requested documents and did not state whether the 

information requested by Sloan was publicly available for inspection, copying, or 

production.3 See S.C. Code Ann. § 30-4-30(c) (requiring a "final opinion of the 

public body as to the public availability of the requested public record" within 

fifteen days of the receipt of a FOIA request). 

Despite DOR's failure to comply with the requirements of FOIA, we hold the trial 

court properly found that Sloan's request for a declaratory judgment was mooted 

when DOR produced the requested information. Indeed, Sloan acknowledges that 

his claim for injunctive relief was mooted when he received the documents. Sloan 

contends, however, that the claim for declaratory relief remained viable. We 

disagree, for "the information Sloan sought has been disclosed, [and] there is no 

continuing violation of FOIA upon which the trial court could have issued a 

declaratory judgment." Friends I, 369 S.C. at 26, 630 S.E.2d at 478. This, 

however, does not end the case, for Sloan further sought to recover his attorney's 

fees and costs4

 as provided in section 30-4-100(b). 

3

 We are not unsympathetic with the burden placed on public bodies to make a 

final determination within fifteen days. This requirement is, however, a 

legislatively mandated time period with which public bodies must comply and 

courts must enforce. 

4

 DOR contends the issue of attorney's fees and costs is not preserved for appellate 

review because the Form 4 order did not explicitly reference the issue. We 

disagree, for Sloan sought attorney's fees and costs in his complaint and the issue 

was argued at the hearing. See State v. Oxner, 391 S.C. 132, 134, 705 S.E.2d 51, 

52 (2011) ("'[A]ll this Court has ever required is that the questions presented for its 

decision must first have been fairly and properly raised to the lower court and 

passed upon by that court.'" (quoting Hubbard v. Rowe, 192 S.C. 12, 19, 5 S.E.2d 

187, 189 (1939))). By denying all requested relief and "ending" the case, the Form 

4 order necessarily ruled on Sloan's request for attorney's fees and costs, as well as 

his request for injunctive and declaratory relief. Because we construe this 
Sloan is the prevailing party. See Sloan v. Friends of the Hunley, Inc. (Friends II), 

393 S.C. 152, 157, 711 S.E.2d 895, 897 (2011) ("When a public body frustrates a 

citizen's FOIA request to the extent that the citizen must seek relief in the courts 

and incur litigation costs, the public body should not be able to preclude prevailing 

party status to the citizen by producing the documents after litigation is filed." 

(citations omitted)). As the prevailing party under these circumstances, the trial 

court erred in not awarding Sloan his reasonable attorney's fees and costs.5 Sloan 

is entitled to recover his reasonable attorney's fees and costs in this action. See 

Litchfield Plantation Co. v. Georgetown Cnty. Water & Sewer Dist., 314 S.C. 30, 

34, 443 S.E.2d 574, 576 (1994) (Toal, J., concurring in part, dissenting in part) ("A 

governmental agency should not be allowed to stonewall an FOIA request without 

some penalty for its actions."). We reverse the trial court and remand to the trial 

court for an award of reasonable attorney's fees and costs to Sloan. 

III. 

We affirm the trial court's dismissal of Sloan's claims for declaratory and 

injunctive relief, and we reverse the denial of attorney's fees and costs and remand 

for a determination of Sloan's reasonable attorney's fees and costs in this action. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

TOAL, C.J., and BEATTY, J., concur. PLEICONES, J., concurring in part 

and dissenting in part in a separate opinion in which HEARN, J., concurs. 

 

 

summary dismissal as a denial of Sloan's request for attorney's fees and costs, the 

remand proposed by the dissent to revisit the issue anew is not warranted. 

5

 Sloan's request for attorney's fees and costs is not limited to the period of time 

concluding with the production of the requested documents. The temporal 

limitation in Friends II was a consequence of the law of the case doctrine from 

Friends I, as we were "constrained to reverse the award of fees beyond the time 

[the public body] produced the requested documents." Friends II, 393 S.C. at 158, 

711 S.E.2d at 898. No such constraint is present here. 
JUSTICE PLEICONES: I concur in part and dissent in part. I agree with the 

majority's holding that DOR's response to Sloan's document request failed to 

comply with the requirement of FOIA. 6 I further agree that Sloan's action for 

declaratory relief was rendered moot when DOR produced the requested 

information. 

I dissent from that portion of the majority's decision as mandates an award of 

attorney's fees and costs to Sloan upon remand. The award of fees and costs to the 

prevailing person or entity in a suit brought pursuant to section 30-4-100(a) is 

entrusted to the discretion of the trial court. S.C. Code Ann. § 30-4-100(b) (2007) 

("If a person or entity seeking such relief prevails, he or it may be awarded 

reasonable attorney fees and other costs of litigation.") (emphasis supplied). The 

trial court in this case declined to exercise its discretion in regard to an award of 

fees and costs. Therefore, I would remand this case to circuit court where the 

parties should be permitted to present the full panoply of considerations germane 

to an award of fees and costs. 

HEARN, J., concurs. 

 

6

 I share in the majority's concern over the burden placed on public bodies to make 

a final determination within fifteen days. See S.C. Code Ann. § 30-4-30(c) (2007). 

I note that our version of FOIA, unlike the Federal Act, does not allow an agency 

to extend its determination of a FOIA request where that request is especially 

burdensome or voluminous. See 5 U.S.C. 552 § (a)(6)(B)(i)-(iii).