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 Foundati on, 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 Jennife r J. Miller, of Carpenter Law Firm, PC, of Gree nville, 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., Sloan 1 filed this Freedom of Information Act 2 (FOIA) action against DOR and its director, James F. Etter, seek ing declaratory relief, injunctive relief, and attorney's fees and costs. After suit was filed, DOR produced the requested
information and asserted that Sloan's acti on was mooted and should be dismissed. The trial court agreed with DOR and dismissed the comp laint, 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 FO IA 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 Decem ber 10, 2012:

The South Carolina Department of Revenue has received your Freedom of Information request dated November 19, 2012. Your request is currently being research ed 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 hims elf and all others similarly situated as
well as the South Carolina Public Interest Foundation. We refe r 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 determinati on 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 copyi ng. 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 de termination 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 fi nal opinion within the fifteen-day determination period, FOIA provides for bo th 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 th e 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 a nd costs pursuant to section 30-4-100(b).

Three weeks after Sloan filed suit, DOR pr ovided 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 declarat ory relief and attorney's fees and costs remained viable. Conversely, DOR conte nded Sloan was entitled to no relief. The trial court, in a Form 4 order, summar ily ended the case, thereby agreeing with DOR and denying all relief Sloan sought. Sl oan 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 st atutory dictates of FOIA. While DOR did respond to Sloan, its equivocal and evasive respons e 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 th e 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 informa tion. Indeed, Sloan acknowledges that his claim for injunctive relief was mooted when he received the documents. Sloan contends, however, that the claim for de claratory 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 fu rther sought to recover his attorney's
fees and costs 4 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 da ys. 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 ha s ever required is that th e questions presented for its decision must first have been fairly a nd 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 fo r attorney's fees a nd costs, as well as his request for injunctive and declarator y relief. Because we construe thisSloan 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 s hould 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 reasona ble attorney's fees and costs in this action. See Litchfield Plantation Co. v. Geor getown Cnty. Water & Sewer Dist. , 314 S.C. 30, 34, 443 S.E.2d 574, 576 (1994) (Toa l, J., concurring in part, dissenting in part) ("A governmental agency should not be allowe d to stonewall an FO IA request without some penalty for its actions." ). We reverse the trial c ourt and remand to the trial
court for an award of reasonable atto rney'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 a ttorney's fees and costs in this action.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TOAL, C.J., and BEATTY, J., concur. P LEICONES, J., conc urring in part and dissenting in part in a separate opinion in which HE ARN, J., concurs.

summary dism issal as a denial of Sloan's re quest 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 la w of the case doctrine from
Friends I , as we were "constraine d 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 major ity's decision as mandates an award of attorney's fees and costs to Sloan upon rema nd. The award of fees and costs to the prevailing person or entity in a suit broug ht pursuant to section 30-4-100(a) is
entrusted to the discretion of the trial cour t. 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 declin ed to exercise its discretion in regard to an award of fees and costs. Therefore, I would rema nd this case to circuit court where the parties should be permitted to present th e 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 th e Federal Act, does not allow an agency
to extend its determination of a FOIA re quest where that request is especially
burdensome or voluminous. See 5 U.S.C. 552 § (a)(6)(B)(i)-(iii).