THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

DomainsNewMedia.com, LLC, Respondent, 

v. 

Hilton Head Island-Bluffton Chamber of Commerce, 

Appellant. 

Appellate Case No. 2016-000460 

Appeal from Beaufort County 

Michael G. Nettles, Circuit Court Judge 

Opinion No. 27803 

Heard October 19, 2017 – Filed May 23, 2018 

 REVERSED 

Robert E. Stepp, Tina M. Cundari, and Bess J. DuRant, 

all of Sowell Gray Step & Laffitte, LLC, of Columbia, 

for Appellant. 

Andrew S. Radeker and Taylor M. Smith, IV, both of 

Harrison & Radeker, P.A., of Columbia, for Respondent. 

William W. Wilkins and Kirsten E. Small, both of 

Nexsen Pruet, LLC, of Greenville, for Amicus Curiae 

Myrtle Beach Area Chamber of Commerce. 

Jay Bender, of Columbia, for Amicus Curiae South 

Carolina Press Association. 
 

 

JUSTICE KITTREDGE: This appeal presents the question of whether Appellant 

Hilton Head Island-Bluffton Chamber of Commerce (Chamber) is subject to the 

Freedom of Information Act (FOIA)1

 due to its receipt and expenditure of certain 

funds designated for promoting tourism, which we will refer to collectively as 

accommodation tax funds. The Chamber's receipt and expenditure of these funds 

is pursuant to, and governed by, the Accommodations Tax (A-Tax) statute and 

Proviso 39.2 of the Appropriation Act for Budget Year 2012–2013. 

Respondent DomainsNewMedia.com, LLC (Domains) filed a declaratory 

judgment action, seeking a declaration and corresponding injunctive relief on the 

basis that the Chamber's receipt of these funds renders the Chamber a "public 

body" pursuant to FOIA, thus subjecting the Chamber to all of FOIA's 

requirements. The Chamber countered that FOIA did not apply, for the receipt, 

expenditure, and reporting requirements concerning these funds are governed by 

the more specific A-Tax statute and Proviso 39.2.

The trial court held that the Chamber was a public body and, thus, was subject to 

FOIA's provisions. We reverse. We hold, as a matter of discerning legislative 

intent, that the General Assembly did not intend the Chamber to be considered a 

public body for purposes of FOIA as a result of its receipt and expenditure of these 

specific funds. 

I. 

FOIA was enacted to promote transparency in government. While declaring 

FOIA's purpose, the General Assembly stated "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 the formulation of public policy." Lambries v. 

Saluda Cty. Council, 409 S.C. 1, 9, 760 S.E.2d 785, 789 (2014) (quoting S.C. Code 

Ann. § 30-4-15 (2007)). Thus, FOIA "must be construed so as to make it possible 

for citizens, or their representatives, to learn and report fully the activities of their 

public officials at a minimum cost or delay." S.C. Code Ann. § 30-4-15. 

Subsequent to the passage of FOIA, the General Assembly enacted the A-Tax 

statute, which involves the administration of a state sales tax imposed on sleeping 

accommodations provided to overnight guests. S.C. Code Ann. § 12-36-920(A) 

1

 S.C. Code Ann. §§ 30-4-10 to -165 (2007 & Supp. 2017). 
 

 

(2014 & Supp. 2017); S.C. Code Ann. §§ 6-4-5 to -35 (2004 & Supp. 2017). A 

portion of this tax is remitted to the local governments where it was collected and, 

in turn, they must expend the A-Tax funds in accordance with the statutory 

provisions governing allocation. See S.C. Code Ann. § 12-36-2630(3); S.C. Code 

Ann. §§ 6-4-10 to -35. Specifically, the A-Tax statute dictates that the local 

governments must select at least one organization—referred to as the designated 

marketing organization (DMO)—to manage the expenditure of the funds; however, 

the local governments must ensure the funds are "used only for advertising and 

promotion of tourism." S.C. Code Ann. § 6-4-10(3). 

In this case, the Chamber was selected to be a DMO—to direct the expenditure of 

tourism funds—for several local governments and it received funds from the 

Department of Parks, Recreation, and Tourism (a PRT Grant). These public funds 

are at the center of this appeal and raise the question of whether the legislature 

intended the Chamber to be subject to FOIA on the singular basis that it expends 

these funds. 

The Chamber is a nonprofit organization that was created in 1957. The Chamber's

stated purpose is to promote the common interests of its members, stimulate the 

expanding regional economy, and enhance the quality of life for all. The Chamber

offers private membership and conducts seminars, as well as other events, for the 

benefit of its members. These members pay dues and contribute to the Chamber's

various projects. 

In addition to these purely private activities, since 1983, the Chamber has served 

the Town of Hilton Head Island as its DMO.2

 To be eligible for selection, the 

Chamber was required to demonstrate to the local governments "that it has an 

existing, ongoing tourism promotion program or that it can develop an effective 

tourism promotion program." S.C. Code Ann. § 6-4-10(3). Moreover, the 

Chamber received a PRT Grant during the 2012–2013 fiscal year. The Chamber 

was required to submit a proposal to measure the success of its tourism marketing 

plan before it could be selected for the PRT Grant.3

2

 The Chamber began serving as the DMO for the Town of Bluffton and Beaufort 

County in approximately 2001 and 2008, respectively. 

3

 Only one specific proviso providing a PRT Grant is at issue—Proviso 39.2 

contained in the Appropriation Act for Budget Year 2012–2013 (Proviso 39.2). 
 

 

Domains is a website company, based out of Beaufort County, which has 

questioned the Chamber's expenditure of the accommodation tax funds. In 

November 2012, Domains sent a FOIA request to the Chamber for information 

regarding its staff membership, policies, minutes, and accounts. Oddly, most of 

the information requested by Domains extends beyond the expenditure of these 

tourism funds. For example, Domains requested the non-exempt minutes of all 

meetings and votes by the Chamber. The Chamber refused to provide the 

requested information on the basis that it was not a public body for FOIA purposes, 

as the expenditure of these discrete funds is governed by the A-Tax statute and 

Proviso 39.2 and the corresponding records are available to the public through the 

local governments or the State.4

Thereafter, Domains filed suit seeking declaratory and injunctive relief to establish 

that the Chamber was a public body under FOIA and to require production of the 

requested information concerning all the Chamber's activities. After the parties 

conducted discovery, cross-motions for summary judgment were filed. The trial 

court granted Domains' summary judgment motion and held that the Chamber was

a public body under FOIA's definition. Relying on Weston v. Carolina Research & 

Development Foundation, 303 S.C. 398, 401 S.E.2d 161 (1991), the trial court 

concluded there was a diversion of public funds to a related organization with no 

public access to information regarding the expenditure of the funds. The Chamber

appealed, and the appeal was certified to this Court pursuant to Rule 204(b), 

SCACR. 

II. 

A. 

Domains argues that the Chamber's expenditure of public funds—through its role 

as DMO—causes it to fall within the plain language of FOIA and, moreover, it is 

considered a public body under the interpretation provided in Weston. The

Chamber argues that public accountability for the expenditure of these funds has 

been provided through the A-Tax statute, as well as Proviso 39.2, such that the 

General Assembly did not intend for it to become a public body under FOIA, and 

furthermore, its provision of services as a marketing organization does not render it 

a public body for FOIA purposes under Weston. 

4

 It is important to note that FOIA applies to the governmental entities that 

administer these funds. 
"The standard of review in a declaratory action is determined by the underlying 

issues." Nationwide Mut. Ins. Co. v. Rhoden, 398 S.C. 393, 398, 728 S.E.2d 477, 

479 (2012) (citing Felts v. Richland County., 303 S.C. 354, 356, 400 S.E.2d 781, 

782 (1991)). "The interpretation of a statute is a question of law." Sparks v. 

Palmetto Hardwood, Inc., 406 S.C. 124, 128, 750 S.E.2d 61, 63 (2013) (citing 

CFRE, L.L.C. v. Greenville Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 

(2011)). "This Court may interpret statutes, and therefore resolve this case, 

'without any deference to the court below.'" Brock v. Town of Mount Pleasant, 415 

S.C. 625, 628, 785 S.E.2d 198, 200 (2016) (quoting CFRE, 395 S.C. at 74, 716 

S.E.2d at 881).

B. 

We are presented with the following question—did the legislature intend that the 

Chamber be a public body for FOIA purposes due to its receipt and expenditure of 

accommodation tax funds? While the Chamber technically expends public funds,

we are firmly persuaded that the General Assembly did not intend the Chamber to 

be considered a public body for FOIA purposes based upon its receipt and 

expenditure of accommodation tax funds.

We begin with an analysis of FOIA. To further its purpose of a transparent 

government, "FOIA subjects a 'public body' to record disclosure." Disabato, v. 

S.C. Ass'n of Sch. Adm'rs, 404 S.C. 433, 442, 746 S.E.2d 329, 333 (2013). As this 

Court has recognized, "[i]f public bodies were not subject to the FOIA, 

governmental bodies could subvert the FOIA by funneling State funds to nonprofit 

corporations so that those corporations could act, outside the public's view, as 

proxies for the State." Id. at 455, 746 S.E.2d at 340. "Among those entities 

defined as a public body subject to the statute are 'any organization, corporation, or 

agency supported in whole or in part by public funds or expending public funds . . . 

.'" Id. at 442, 746 S.E.2d at 333 (emphasis added) (quoting S.C. Code Ann. § 30-4-

20(a)). FOIA's record disclosure requirement provides that a "person has a right to 

inspect, copy, or receive an electronic transmission of any public record of a public 

body" subject to certain exceptions. S.C. Code Ann. § 30-4-30(a) (emphasis 

added). A "public record" is defined to include "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" with certain exclusions. S.C. Code Ann. § 30-4-20(c) 

(emphasis added). 
 

Moreover, FOIA imposes additional disclosure requirements on public bodies, 

such as all meetings must be open to the public, subject to limited exceptions. S.C. 

Code Ann. § 30-4-60. Also, a public body must provide advance notice of all 

meetings and keep written minutes, which include statutorily specified 

information. S.C. Code Ann. §§ 30-4-80, -90. In addition, FOIA provides that a 

citizen of the State may seek a declaratory judgment and injunctive relief to 

enforce the provisions of FOIA. S.C. Code Ann. § 30-4-100. 

Thus, the General Assembly has evidenced its intent to ensure transparency is 

provided to the public with regard to the general expenditure of public funds.

C. 

We now turn our attention to the A-Tax statute and Proviso 39.2. With regard to 

the specific expenditure of the accommodation tax funds involved in this case, the 

General Assembly enacted section 6-4-10(3), which sets forth the following: 

To manage and direct the expenditure of these tourism promotion

funds, the municipality or county shall select one or more 

organizations, such as a chamber of commerce, visitor and convention 

bureau, or regional tourism commission, which has an existing,

ongoing tourist promotion program. . . . Immediately upon an 

allocation to the special fund, a municipality or county shall distribute 

the tourism promotion funds to the organizations selected or created to 

receive them. Before the beginning of each fiscal year, an 

organization receiving funds from the accommodations tax from a

municipality or county shall submit for approval a budget of planned 

expenditures. At the end of each fiscal year, an organization receiving 

funds shall render an accounting of the expenditure to the 

municipality or county which distributed them. . . . 

S.C. Code Ann. § 6-4-10(3) (emphasis added).5

 The reporting and accountability 

provisions directly governing the expenditure of these funds control the disposition 

of this appeal. 

5

 In addition, Proviso 39.2 requires the DMO to submit a proposal and final report 

regarding the expenditures: 

Organizations applying for a grant must include in the grant 

application, information on how the organization proposes to measure 
 

Under the A-Tax statute, to evidence compliance in expending these funds, a local 

government must fulfill several requirements. Importantly, the A-Tax statute 

provides three layers of review for these expenditures—a local advisory 

committee, a statewide oversight committee, and an expenditure review 

committee. First, it requires a local government receiving over $50,000 in revenue 

from A-Tax funds to appoint an advisory committee "to make recommendations on 

the expenditure of revenue generated from the accommodations tax." Id. § 6-4-

25(A).6

 Second, the local government must submit certain information to the 

South Carolina Accommodations Tax Oversight Committee, to include a "list of 

how funds from the accommodations tax are spent," which is due "before October 

first and must include funds received and dispersed during the previous fiscal 

year." Id. § 6-4-25(D). Finally, these reports are provided to the Tourism 

Expenditure Review Committee (TERC) for review to ensure that the local 

government complies with the basic requirements for expenditures set forth in the 

statute. Id. § 6-4-35; Id. § 6-4-25(D). TERC may consider "further supporting 

information" from the local government or find "an expenditure to be in 

noncompliance," resulting in certification to the State Treasurer who will withhold 

the noncompliant amount from the local government. Id. § 6-4-35(B)(1)(a). In 

the success of the marketing and public relations program, including 

the estimated return on investment to the state. . . . An organization 

receiving a grant must use the public and private funds only for the 

purpose of destination specific marketing and public relations 

designed to target international and/or domestic travelers outside the 

state to destinations within the state. . . . Grant recipients shall 

provide an annual report by November first, to the Chairmen of the 

Senate Finance Committee and the House Ways and Means 

Committee and the director of the Department of Parks, Recreation 

and Tourism on the expenditure of the grants funds and on the 

proposed outcome measures. 

Act No. 288, 2012 S.C. Acts 402–03 (Proviso 39.2). 

6

 The local governments in this case are subject to this provision, which requires 

the advisory committee to "submit written recommendations to a municipality or 

county at least once annually" and these "recommendations must be considered by 

the municipality or county in conjunction with the requirements of this chapter." 

S.C. Code Ann. § 6-4-25(C). The Chamber, as DMO, may provide the proposed 

budget to this committee for its review and recommendation before obtaining 

approval from the local government.
addition, TERC "has jurisdiction to investigate and research facts on written 

complaints submitted to it with regard to the appropriate tourism-related 

expenditures and resolve these complaints." Id. § 6-4-35(B)(2). Any citizen may 

file such a complaint. 

Thus, these provisions provide that the local governments must select a qualified 

DMO to receive the funds designated for promoting tourism, but the local 

governments remain accountable for the expenditure of these funds as they must 

review and, if appropriate, approve the budget proposed by the DMO, receive an 

accounting of expenditures from the DMO, and submit evidence of their 

compliance to proper committees. Likewise, the expenditure of the funds received 

through the PRT Grant are provided in an annual report to the Senate Finance 

Committee, the House Ways and Means Committee, and the Department of Parks, 

Recreation, and Tourism.

D. 

FOIA is a general statute; the A-Tax statute is a specific statute. "Where there is 

one statute addressing an issue in general terms and another statute dealing with 

the identical issue in a more specific and definite manner, the more specific statute 

will be considered an exception to, or a qualifier of, the general statute and given 

such effect." Capco of Summerville, Inc. v. J.H. Gayle Const. Co., 368 S.C. 137, 

142, 628 S.E.2d 38, 41 (2006) (citation omitted). 

According to FOIA, any organization that is "supported in whole or in part by 

public funds or expending public funds" is a public body. S.C. Code Ann. 30-4-

20(a) (emphasis added). Accommodation tax funds are, of course, public funds. 

Therefore, if we look only to FOIA as Domains suggests and go no further, it 

would appear that the Chamber is subject to FOIA as a public body. The 

subsequently enacted A-Tax statute and Proviso 39.2, however, provide a specific 

and comprehensive approach for the receipt, expenditure, and oversight of these 

funds. The presence of the specific A-Tax statute and Proviso 39.2 play the lead 

role in our disposition of this case. 

Moreover, even in the absence of a specific statute, this Court has recognized that 

the applicability of FOIA to a non-governmental entity is more involved than 

classification as a public body due to the receipt of public funds. See Weston v. 

Carolina Research & Dev. Found., 303 S.C. 398, 401 S.E.2d 161 (1991). 
 

Both parties cite Weston in support of their respective positions. 303 S.C. 398, 401 

S.E.2d 161. We find Weston supports the Chamber's position.7 In Weston, this 

Court evaluated whether a nonprofit foundation—operated exclusively for the 

benefit of the University of South Carolina—was a public body pursuant to FOIA 

on the bases of four transactions in which public funds were transferred to the 

foundation. Id. We rejected the suggestion that the mere receipt or expenditure of 

public funds automatically and categorically transformed an otherwise private 

entity into a public body triggering the full panoply of FOIA requirements. We 

made clear that the mere receipt or expenditure of public funds did not mean "that 

the FOIA would apply to business enterprises that receive payment from public 

bodies in return for supplying specific goods or services on an arms length basis." 

Id. at 404, 401 S.E.2d at 165. We ultimately concluded in Weston that the 

nonprofit foundation in that case was a public body under FOIA, as the Court 

observed that the public needed access to the records of the organization "when a 

block of public funds is diverted en masse from a public body to a related 

organization, or when the related organization undertakes the management of the 

expenditure of public funds" as otherwise the public is unable to determine how the 

funds were spent. Id. Significantly, in that case, there was not a statute or proviso 

governing the procedure and oversight for the expenditure of the specific funds at 

7 This is the main point of divergence with the dissenting opinion. While we take 

no issue with the important, indeed vital, goals served by FOIA, as we 

acknowledged above, the dissent would classify the Chamber as a public body for 

FOIA purposes simply as a result of its receipt of public funds. This is so, 

according to the dissent, because we must apply the plain language of one phrase 

in the FOIA statute. The dissent would apply all of FOIA to any organization that 

receives any public funds. While we acknowledge that in many instances the 

receipt of public funds will subject the organization to FOIA, the dissent's

categorical rule is contrary to this Court's discernment of legislative intent in 

Weston. The dissent goes further and accuses us of "employ[ing] an elaborate 

analysis to avoid the plain language of the FOIA." Not so. We are remaining 

faithful to this Court's decisional framework in Weston, to which the legislature for 

more than a quarter century has not responded, much less superseded. If the 

dissent's "look only to FOIA" approach were dispositive, Weston could not stand as 

the Court held that FOIA does not always and automatically apply when public 

funds are received by an organization. As is our general stance, we elect to honor 

our precedents and respect the authority of the legislature to respond to (including 

superseding) our construction of statutes. If the General Assembly now disagrees 

with Weston, or our decision today, it lies within the province of the legislature to 

respond and overrule our precedents. 
issue or mandating the public reporting and accountability as exists with respect to 

A-Tax funds and the PRT Grant. 

Here, as noted, there is a specific statute (or proviso) that directs the local

governments to select a DMO to manage the expenditure of certain tourism funds 

and requires the governments to maintain oversight and responsibility of the funds 

by approving the proposed budget and receiving an accounting from the DMO. 

Thus, this is not the situation found in Weston wherein the funds were intended to 

be given to a public body and, instead, were diverted to a private organization to be 

spent without oversight. Through the A-Tax statute (and Proviso 39.2) there are 

accountability measures in place and the public has access to information regarding 

how the funds are spent. Therefore, the concern in Weston regarding the lack of a 

legislatively sanctioned process mandating oversight, reporting, and accountability 

is not present in the expenditure of these funds. 

We do agree with Domains that the A-Tax statute does not provide for the expanse 

of disclosure requirements that are available under FOIA. Indeed, Domains makes 

no pretense that FOIA would be imposed on the Chamber so that all of the 

Chamber's procedures and activities would be controlled by all of FOIA's 

provisions. This would subject the Chamber to all of the various requirements of 

FOIA, such as advance notice of meetings, in every area of the Chamber's 

activities. Unlike some other states, South Carolina's FOIA provisions do not 

provide a limitation to the extent of FOIA's reach within an organization once it is 

classified as a public body. Compare S.C. Code Ann. § 30-4-20(a) (stating 

"'Public body' means . . . any organization, corporation, or agency supported in 

whole or in part by public funds or expending public funds" (emphasis added)), 

with Tex. Gov't Code Ann. § 552.003(1)(A)(xii) (West 2013) (defining a 

"Governmental body" as including "the part, section, or portion of an 

organization, corporation, commission, committee, institution, or agency that 

spends or that is supported in whole or in part by public funds" (emphasis added)). 

The degree of oversight and reporting requirements are policy decisions which lie 

in the province of the legislature. Here, the General Assembly has specified a 

detailed process for the expenditure and accountability of these tourism funds and 

that determination is controlling. 

III. 

Contrary to Domains' suggestion, the receipt and expenditure of these 

accommodation tax funds in no manner allows the Chamber (or any DMO) to 

spend public funds free from public accountability and oversight. We fully 
appreciate the need for some measure of transparency and public accountability in 

the expenditure of public funds. Yet, in this case, the A-Tax statute and Proviso 

39.2 set forth the General Assembly's determination of the required level of 

oversight, transparency, and accountability. 

FOIA, of course, remains vibrant as it provides the General Assembly's 

determination for the optimum transparency in connection with the general 

expenditure of public funds. Following the passage of FOIA, the General

Assembly enacted the more narrow and targeted A-Tax statute (and Proviso 39.2) 

to provide what it determined were the necessary accountability safeguards with 

regard to the expenditure of these specific funds while simultaneously protecting 

the private nature of the organizations selected to perform this marketing function. 

The General Assembly deemed these provisions sufficient to ensure that the funds 

are being properly expended, and Domains has presented no valid legal basis to 

contravene this legislative determination. Accordingly, the judgment of the trial 

court is reversed. 

REVERSED. 

BEATTY, C.J., HEARN and JAMES, JJ., concur. FEW, J., dissenting in a 

separate opinion.
JUSTICE FEW: The Freedom of Information Act (FOIA) applies to any "public 

body," which is defined as "any organization . . . expending public funds." S.C. 

Code Ann. § 30-4-20(a) (2007). The Hilton Head-Bluffton Chamber of Commerce 

agreed to serve as the organization to "receive" and "direct the expenditure" of 

accommodations sales tax revenues collected by the towns of Hilton Head and 

Bluffton and Beaufort County "for advertising and promotion of tourism" pursuant 

to subsection 6-4-10(3) of the South Carolina Code (Supp. 2017). In fiscal year

2013-14, as a representative year, the Chamber "expended" $1,531,000 of these 

public funds to promote tourism. The FOIA provides any "person has a right to 

inspect . . . any public record of a public body." S.C. Code Ann. § 30-4-30(A)(1) 

(Supp. 2017). It requires no elaborate analysis to apply the plain words of the 

FOIA and reach the conclusion that the Chamber's agreement to expend these 

public funds renders it a public body subject to the record disclosure requirements 

of the FOIA. 

The majority has employed an elaborate analysis to avoid the plain language of the 

FOIA under the guise of "discerning legislative intent." However, our law does 

not permit us to look outside the language of a statute unless there is an ambiguity 

in the statute. See Smith v. Tiffany, 419 S.C. 548, 555, 799 S.E.2d 479, 483 (2017) 

("If a statute is clear and explicit in its language, then there is no need to resort to 

statutory interpretation or legislative intent to determine its meaning." (quoting 

Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 401, 175 S.E.2d 805, 817 

(1970))); 419 S.C. at 556, 799 S.E.2d at 483 ("Absent an ambiguity, there is 

nothing for a court to construe, that is, a court should not look beyond the statutory 

text to discern its meaning."). The majority acknowledges there is no ambiguity, 

stating, 

According to FOIA, any organization that is "supported 

in whole or in part by public funds or expending public 

funds" is a public body. Accommodation tax funds are, 

of course, public funds. Therefore, if we look only to 

FOIA as Domains suggests and go no further, it would 

appear that the Chamber is subject to FOIA as a public 

body. 

Under Smith and Timmons, therefore, we must "look only to FOIA," because there 

is no ambiguity in it. Based on the plain language in subsection 30-4-20(a), the 

Chamber is a public body and therefore subject to the record disclosure 

requirements of the FOIA. 
Even if we did look beyond the FOIA, however, the majority's justification for 

finding the Act does not apply in this circumstance fails. First, the majority's

decision is inconsistent with the policy behind the FOIA, which is set forth in 

section 30-4-15 of the South Carolina Code (2007). The General Assembly found 

"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 the 

formulation of public policy." § 30-4-15. Therefore, the General Assembly 

enacted the FOIA "to make it possible for citizens . . . to learn and report fully the 

activities of their public officials at a minimum cost or delay to the persons seeking 

access to public documents or meetings." Id.; see also Brock v. Town of Mount 

Pleasant, 415 S.C. 625, 628, 785 S.E.2d 198, 200 (2016) ("The essential purpose 

of FOIA is to protect the public from secret government activity."). 

The majority states the accommodations tax statute and Proviso 39.2 "play the lead 

role in our disposition of this case" because they "provide a comprehensive 

approach for the receipt, expenditure, and oversight of these [public] funds." In 

other words, the majority finds the policy of the FOIA is fulfilled through the 

accommodations tax statute and Proviso 39.2. This conclusion is wrong. 

Although the accommodations tax statute does have specific provisions relating to 

the "receipt" and "expenditure" of public funds, its provisions concerning 

"oversight" of spending public funds fall far short of meeting the policy goals of 

the FOIA. 

Specifically, the accommodations tax statute does not address the disclosure of 

records at the core of the FOIA policy. In fact, the statute's "three layers of 

review" the majority finds to be sufficient "oversight" is contrary to the policy. By 

placing the responsibility for the expenditure of public funds in the hands of a 

private entity such as the Chamber, and then relying on public officials for 

"oversight," with no right of access by the public, the accommodations tax statute 

actually inhibits citizens from being "advised of the performance of public officials 

and of the decisions that are reached in public activity," thereby frustrating—not 

furthering—the "vital" policy of open government. 

To the extent the policy behind the FOIA could be furthered by "oversight" from

public officials, the record in this case reveals the information provided to those 

public officials does not allow the officials to determine how the funds are being 

spent. For example, I asked counsel for the Chamber at oral argument about a 

specific line item contained in the Chamber's proposed budget for spending 

accommodations sales tax funds in fiscal year 2013-14. The line appears under the 

headings "Expenses" and "Digital Marketing," and reads, "SEM Marketing 
 

[$]200,000."8 I asked, "In the town's relationship with the Chamber, . . . as a 

matter of course, the town doesn't know what the $200,000 represents for SEM 

marketing?" Counsel responded, "Well, it may. I don't know." After several other 

questions and answers, counsel agreed with the following assertion: 

Unless somehow the town takes the initiative to learn 

from the Chamber what the $200,000 represents, then in 

our scenario, a member of the public would never be able 

to gain access to the individual vendors, whether they 

submitted bids, what were the bids, what was the highest 

bid, and on and on and on.

This demonstrates the reality that the accommodations tax statute does not allow 

the public to learn how public funds are being spent with any degree of specificity, 

and therefore the statute does not meet the policy goals of the FOIA. 

Second, the majority relies heavily on the principle that a more specific statute 

(subsection 6-4-10(3)—the accommodations tax statute) controls the more general 

one (FOIA). That principle is inapplicable in this case because the two statutes do 

not address the same subject. In Capco of Summerville, Inc. v. J.H. Gayle 

Construction Co., 368 S.C. 137, 628 S.E.2d 38 (2006), the case cited by the 

majority to support its application of the principle, we held the principle applied 

only if the statutes address "the identical issue." 368 S.C. at 142, 628 S.E.2d at 41. 

The FOIA requires that a public body disclose its records; the accommodations tax 

statute does not even address that issue. 

Third, the majority's reliance on Weston v. Carolina Research & Development 

Foundation, 303 S.C. 398, 401 S.E.2d 161 (1991), is misplaced. We did not create 

any "decisional framework," see supra note 7, in Weston that permits us to ignore 

the plain language of the FOIA. Rather, we applied that plain language to 

transactions that are factually indistinguishable from the Chamber's receipt and 

expenditure of accommodations sales tax revenues in this case, and held the FOIA 

8

 SEM marketing—or search engine marketing—is defined as "a process by which 

multiple methods are utilized to improve market visibility and exposure for a 

brand, product or service" and includes "search engine optimization (SEO), social 

networking, bid placement, pay-per-click (PPC), contextual advertising, paid 

inclusion, geomapping, . . . as well as multiple media formats, such as YouTube 

and geospecific marketing, like Foursquare." Techopedia, Search Engine 

Marketing (SEM), https://www.techopedia.com/definition/25079/search-enginemarketing-sem (last visited Apr. 2, 2018). 
applies. We stated "the unambiguous language of the FOIA mandates that the 

receipt of support in whole or in part from public funds brings a corporation within 

the definition of a public body." 303 S.C. at 403, 401 S.E.2d at 164.

The majority in this case refers to the following passage from Weston: 

[T]his decision does not mean that the FOIA would apply 

to business enterprises that receive payment from public 

bodies in return for supplying specific goods or services 

on an arm's length basis. In that situation, there is an

exchange of money for identifiable goods or services and 

access to the public body's records would show how the 

money was spent. However, when a block of public 

funds is diverted en masse from a public body to a related 

organization, or when the related organization undertakes 

the management of the expenditure of public funds, the 

only way that the public can determine with specificity 

how those funds were spent is through access to the 

records and affairs of the organization receiving and 

spending the funds.

303 S.C. at 404, 401 S.E.2d at 165. The purpose of this passage was to point out 

different types of transactions and to explain that transactions made on an "arm's 

length basis" would not trigger the FOIA because "there is an exchange of money 

for identifiable goods or services and access to the public body's records would 

show how the money was spent." This passage was never intended to create any 

additional requirement—or a "more involved" analysis—to determine the 

applicability of the FOIA. 

In contrast to the majority's proposition, the quoted language from Weston requires 

a finding that the FOIA does apply to the Chamber. The Chamber's agreement to 

expend these funds does not involve the type of "arm's length" transaction that is 

an "exchange of money for identifiable goods or services" we said in Weston 

would not be subject to the FOIA. Rather, the Chamber's decision to play this role 

required it to "manage and direct the expenditure of these tourism promotion 

funds," § 6-4-10, which is precisely the type of transaction we held in Weston is 

always subject to the FOIA, 303 S.C. at 404, 401 S.E.2d at 165 (finding the FOIA 

applies when an "organization undertakes the management of the expenditure of 

public funds"). As such, "the only way that the public can determine with 

specificity how those funds were spent is through access to the records and affairs 
of the organization receiving and spending the funds." Id. Therefore, Weston does 

not support the majority's proposition that "the applicability of FOIA to a nongovernmental entity is more involved than classification as a public body due to 

the receipt of public funds." In fact, Weston rejects the majority's proposition that 

there is any "decisional framework" for the FOIA except that set forth in the FOIA. 

Finally, the majority expresses concern over the Chamber being exposed to other 

requirements under the FOIA if we find it is a public body. Those other 

requirements include open meetings, advanced notice of meetings, and the 

requirement that public bodies keep written minutes. See S.C. Code Ann. §§ 30-4-

60, -80, and -90 (2007 & Supp. 2017). There are two simple solutions to this 

problem. One, if the Chamber does not wish to subject itself to all of the 

requirements of the FOIA, it may choose not to serve as the designated marketing 

organization to "receive" and "direct the expenditure" of accommodations sales tax 

revenues. Two, if the Chamber is unwilling to give up its position as the 

designated marketing organization, it can easily create a separate subsidiary or 

related entity devoted solely to that function. The majority's concerns are 

unfounded. 

For these reasons, I respectfully dissent.