THE STATE OF SOUTH CAROLINA In The Supreme Court

DomainsNewMedia.com , LLC, Respondent,

v.

Hilton Head Island-Blufft on 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. C undari, and Bess J. DuRant, all of Sowell Gray Step & Laffitte, LLC, of Columbia, for Appellant.

Andrew S. Radeker and Tayl or 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 Gree nville, for Amicus Curiae Myrtle Beach Area Chamber of Commerce.

Jay Bender, of Columbia, f or 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 su bject to the Freedom of Information Act (FOIA) 1 due to its receipt and expenditure of certain funds designated for promoting t ourism, which we will refer to collectively as

accommodation tax funds. The C hamber'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 Appropriat ion Act for Budget Year 2012–2013

.

Respondent DomainsNewMedia.com , LLC (Domains) file d a declarato ry judgment action, seeking a declar ation and corresponding injunc tive relief on the basis that the Chamber's receipt of these funds renders the Cha mber a "public body" pursuant to FOIA, thus subjec ting the Chamber to all of F OIA's requirements. The Chamber counter ed that FOIA did not apply, f or the receipt, expenditure, and reporting requirements concerning these funds are governed by the more specific A-Tax st atute and Proviso 39.2.

The trial court held that the Chamber was a public body and, th us, was subject to FOIA's provisions. We reverse. We hold, as a matter of discer ning legislative intent, that the General Assembly did not intend the Chamber to be considered a public body for purposes of FOI A as a result of its receipt and expenditure of these specific funds.

I.

FOIA was enacted to promote tr ansparency in government. While declaring FOIA's purpose, the General Asse mbly stated "it is vital in a d emocratic society that public business be perform ed in an open and public manner so that citizens shall be advised of the perform ance of public officials and of the decisions that are reached in public activity and in the formulation of public pol icy." 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, FOI A "must be construed so as to make it possible for citizens, or their represen tatives, to learn and report ful ly the activities of their public officials at a minimum co st or delay." S.C. Code Ann. § 30-4-15.

Subsequent to the passage of FO IA, the General A ssembly enacted the A-Tax statute, which involves the administration of a state sales tax imposed on sleeping accommodations provide d to overnight guest s. 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 A nn. §§ 6-4-5 to -35 (2004 & Sup p. 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 th e 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 dictate s that the local governments must select at least one organization—referred to a s the designated marketing organization (DMO)—to m anage the expenditure of the f unds; however, the local governments must ensur e 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 sel ected to be a DMO—to direct th e expenditure of

tourism funds—for several local governments and it received funds from the Department of Parks , Recreation, and Tourism (a PRT Grant). Th ese public funds are at the center of this app eal and raise the question of whether the legislature intended the Chamber to be subj ect to FOIA on the singular basi s that it expends

these funds.

The Chamber is a nonprofit orga nization that was created in 195 7. The Chamber's stated purpose is to promote the common interests of its member s, stimulate the expanding regional economy, and e nhance the quality of life for all. The Chamber offers private membership and conducts seminars, as well as oth er events, for the

benefit of its members. These mem bers 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 demonstr ate to the local governments "t hat it has an existing, ongoing tourism promotion program or that it can deve lop an effective tourism promotion program." S.C. Code Ann. § 6-4-10(3). Moreo ver, 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 sel ected for the PRT Grant. 3

2 The Chamber began serving as t he 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—Pr oviso 39.2 contained in the Appropriation Ac t for Budget Year 2012–2013 (P roviso 39.2).Domains is a website company, b ased out of Beaufort County, whi ch has questioned the Chamber's expend iture of the accommodation tax f unds. In November 2012, Domains sent a FOI A request to the Chamber for i nformation regarding its staff membership , policies, minutes, and accounts . Oddly, most of the information requested by Do mains extends beyond the expendi ture of these

tourism funds. For example, Domains requested the non-exempt m inutes of all meetings and votes by the Chamber . The Chamber refused to prov ide the requested information on the basi s that it was not a public bod y for FOIA purposes, as the expenditure of these disc rete funds is governed by the A -Tax statute and Proviso 39.2 and the correspondi ng records are available to the public through the local governments or the State. 4

Thereafter, Domains filed suit s eeking declaratory and injuncti ve relief to establish that the Chamber was a public body under FOIA and to require pr oduction of the requested information concerning all the Chamber's activities. After the parties conducted discovery, cross-motions for summary judgment were fi led. The trial court granted Domains' summary judgment motion and held that th e 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 t o a related or ganization with no public access to information regarding the expenditure of the f unds. The Chamber appealed, and the appeal was cer tified to this Court pursuant t o Rule 204(b),

SCACR.

II.

A.

Domains argues that the Chamber 's expenditure of public funds—t hrough its role

as DMO—causes it to fall within the plain language of FOIA and, moreover, it is considered a public body under th e 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 inten d for it to become a public body under FOIA, and furthermore, its provision of s ervices as a marketing organizat ion does not render it a public body for FO IA purposes under Weston

.

4 It is important to note that FO IA applies to the governmental entities that

administer these funds."The standard of review in a decl aratory 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. Gree nville Cty. Assessor , 395 S.C. 67, 74 , 716 S.E.2d 877, 881 (2011)). "This Court may interpre t 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 follo wing question—did the legislatur e intend that the Chamber be a public body for FO IA purposes due to its receipt a nd expenditure of

accommodation tax funds? While the Chamber technically expends public funds, we are firmly persuaded that the General Assembly did not inten d 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 pub lic bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling State f unds to nonprofit corporations so that those corp orations 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 subj ect to the statute are ' any organization, corporation, or agency supported in whole or in part by public funds or expendi ng public funds . . .

.'" Id. at 442, 746 S.E.2d at 333 (empha sis added) (quoting S.C. Code A nn. § 30-4

- 20(a)). FOIA's record disclosure requirement provides that a " person has a right to inspect, copy, or receive an e lectronic transmission of any public record of a public body" subject to certain excepti ons. S.C. Code Ann. § 30-4-30( a) (emphasis added). A "public record" is defined to include " all books, papers, maps, photographs, cards, tapes, recordi ngs, or other documentary mat erials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body" with cer tain exclusions. S.C. Code Ann. § 30-4-20(c) (emphasis added).Moreover, FOIA imposes additional disclosure requirements on pu blic bodies, such as all meetings must be open to the public, subject to limited exceptions. S.C. Code Ann. § 30-4-60. Also, a pub lic body must provide advance notice of all meetings and keep written minutes, which include statutorily sp ecified

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 injunc tive relief to enforce the provisions of FOI A. S.C. Code Ann. § 30-4-100.

Thus, the General Assembly has evidenced its intent to ensure t ransparency is provided to the public with regar d to the general expenditure o f 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 ac commodation tax funds involve d in this case, the General Assembly enacted section 6-4-10(3), which sets forth th e following:

To manage and direct the expenditu re of these tourism promotion funds, the municipality or count y 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 t he organizations selected or cr eated to receive them. Before the beginning of each fiscal year, an organization receiving funds from the accommodations tax from a municipality or county shall su bmit for approval a budget of pl anned expenditures. At the end of each fiscal year, an organization receiving

funds shall render an accountin g 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 th e expenditure of these funds co ntrol the disposition of this appeal.

5 In addition, Proviso 39.2 requi res the DMO to submit a proposa l and final report regarding the expenditures:

Organizations applying for a grant must include in the grant application, information on how t he organization proposes to me asureUnder 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 a dvisory committee "to make reco mmendations on the expenditure of revenue generated from the accommodations ta x." Id. § 6-4

- 25(A). 6 Second, the local government mus t 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 Touris m Expenditure Review Committee (TERC) for review to ensure that t he local government complies with the bas ic requirements for expenditure s set forth in the

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

information" from the local gove rnment or find "an expenditure to be in noncompliance," resulting in certification to the State Treasur er who will withhold the noncompliant amount fro m the local government. Id. § 6-4-35(B)(1)(a). In

the success of the marketing a nd public relations program, incl uding

the estimated return on invest ment to the state. . . . An orga nization receiving a grant must use the public and private funds only fo r the purpose of destination specific marketing and public relations designed to target international and/or domestic travelers outs ide the

state to destinations within the state. . . . Grant recipients shall provide an annual report by Novemb er first, to the Chairmen of the

Senate Finance Committee and the House Ways and Means

Committee and the director of the Department of Parks, Recreati on and Tourism on the e xpenditure 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 provisi on, which requires the advisory committee to "s ubmit written recommendations to a municipality or county at least once annually" a nd these "recommendations must be considered by the municipality or county in conj unction with the requirements of this chapter."

S.C. Code Ann. § 6-4-25(C). The Chamber, as DMO, may provide t he proposed budget to this committee for its r eview and recommendation befo re obtaining approval from the local government.addition, TERC "has jurisdiction to investigate and research fa cts on written complaints submitted to it with r egard to the appropriate touri sm-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 designate d for promoting tourism, but the local governments remain accountable for the expenditure of these fun ds as they must review and, if appropriate, approve the budget proposed by the DMO, receive an accounting of expenditures from t he DMO, and submit evidence of their compliance to proper committees . Likewise, the expenditure of the funds received through the PRT Grant are provi ded 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 stat ute. "Where there is one statute addressing an issue in general terms and another statute dealing with the identical issue in a more sp ecific and definite manner, the more specific statute will be considered an exception to, or a qualifier of, the gene ral 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 (200 6) (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). Accommoda tion tax funds are, of course , public funds. Therefore, if we look only to F OIA as Domains suggests and go n o further, it would appear that the Chamber is subject to FOIA as a public bo dy. The subsequently enacted A-Tax statut e and Proviso 39.2, however, p rovide a specific and comprehensive approach for the receipt, expenditure, and ov ersight 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 fu nds. 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 respec tive 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 nonprof it foundation—operated exclusi vely for the benefit of the University of S outh Carolina—was a public body p ursuant to FOIA

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

foundation. Id. We rejected the suggestion that the mere receipt or expenditu re of public funds automatically and categorically transformed an oth erwise private entity into a public body trigge ring the full panoply of FOIA r equirements. We made clear that the mere receip t or expenditure of public funds did not mean "that the FOIA would apply to business enterprises that receive payme nt 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 cas e was a public body under FOIA, as the Court observed that the public needed a ccess to the records of the or ganization "when a block of public funds is diverted en masse from a public body to a related organization, or when the relat ed organization undertakes the m anagement of the expenditure of public funds" as o therwise the public is unable to determine how the funds were spent. Id. Significantly, in that case, the re was not a statute or provi so governing the procedure and overs ight for the expenditure of the specific funds at

7 This is the main point of diverg ence with the dissenting opinio n. While we take no issue with the important, ind eed vital, goals served by FOIA , as we acknowledged above, the dissent woul d 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, becau se we must apply the plain langu age of one phrase

in the FOIA statute. The disse nt would apply all of FOIA to an y organization that

receives any public funds. While we acknowledge that in many i nstances the receipt of public funds will subj ect the organization to FOIA, the dissent's categorical rule is contrary to t his Court's discernment of leg islative intent in

Weston . The dissent goes further and ac cuses us of "employ[ing] an e laborate 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 supers eded. 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 appl y when public funds are received by an organization. As is our general stanc e, 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 Asse mbly now disagrees

with Weston , or our decision today, it lies w ithin the province of the leg islature to respond and overrule our precedents.issue or mandating the public r eporting and accountability as e xists with respect to

A-Tax funds and the PRT Grant.

Here, as noted, there is a specific statute (or proviso) that d irects the local governments to select a DMO to manage the expenditure of certai n tourism funds and requires the governments to m aintain oversight and responsibility of the funds by approving the proposed budget and receiving an accounting fr om the DMO. Thus, this is not the situation found in Weston wherein the funds were intended to be given to a public body and, ins tead, were diverted to a private organization to be spent without oversight. Through the A-Tax statute (and Provis o 39.2) there are accountability measures in place a nd the public has access to i nformation regarding how the funds are spent. Th erefore, the concern in Weston regarding the lack of a legislatively sanctioned proce ss mandating oversight, reporting , and accountability is not present in the expe nditure of these funds.

We do agree with Domains that the A-Tax statute does not provid e for the expanse of disclosure requirements that are available under FOIA. Inde ed, Domains makes no pretense that FOIA would be i mposed on the Chamber so that all of the Chamber's procedures and ac tivities would be controlled by all of FOIA's provisions. This would subject the Chamber to all of the vario us requirements of FOIA, such as advance notice of meetings, in every area of the Chamber 's

activities. Unlike some other sta tes, South Carolina's FOIA pr ovisions do not provide a limitation to the exten t of FOIA's reach within an or ganization 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 fund s or expending public funds" (em phasis added)),

with Tex. Gov't Code Ann. § 552.003(1 )(A)(xii) (West 2013) (definin g a "Governmental body" as including " the part, section, or portion of an organization , corporation, commission, committ ee, institution, or agency that spends or that is supported in whole or in part by public funds " (emphasis added)). The degree of oversight and repor ting requirements are policy d ecisions which lie in the province of the legislatu re. Here, the G eneral Assembly has specified a detailed process for the expenditure and ac countability of thes e tourism funds and that determination is controlling.

III.

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

accommodation tax funds in no ma nner allows the Chamber (or any DMO) to spend public funds free from public accountability and oversight. We fullyappreciate the need for some measure of transparency and public accountabi lity in the expenditure of public funds. Yet, in this case, the A-Tax statute and Proviso

39.2 set forth the General Assemb ly's determination of the requ ired level of oversight, transparency, and accountability.

FOIA, of course, remains vibrant as it provides the General Ass embly's determination for the optimum t ransparency in connection with t he general expenditure of public funds. Following the passage of FOIA, th e General Assembly enacted the more narro w and targeted A-Tax statute (an d Proviso 39.2) to provide what it determined w ere the necessary accountability safeguards with regard to the expenditure of these specific funds while simulta neously protecting the private nature of the organi zations selected to perform thi s marketing function. The General Assembly deemed thes e provisions sufficient to ensure that the funds are being properly expended, and Domains has presented no valid legal basis to contravene this legislative dete rmination. Accordingly, the ju dgment of the trial

court is reversed.

REVERSED.

BEATTY, C.J., HEARN and JAMES, JJ., concur. FEW, J., dissentin g in a separate opinion.JUSTICE FEW: The Freedom of Information Ac t (FOIA) applies to any "public body," which is defined as "a ny organization . . . expending pu blic funds." S.C. Code Ann. § 30-4-20(a) (2007). T he Hilton Head-Bluffton Chambe r of Commerce agreed to serve as the organiza tion to "receive" and "direct the expenditure" of

accommodations sales tax revenue s collected by the towns of Hil ton Head and Bluffton and Beaufort County "for a dvertising and promotion of tourism" pursuant to subsection 6-4-10(3) of the S outh Carolina Code (Supp. 2017) . In fiscal year 2013-14, as a representative year, the Chamber "expended" $1,53 1,000 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 A nn. § 30-4-30(A)(1) (Supp. 2017). It requires no elabor ate analysis to apply the p lain words of the

FOIA and reach the conclusion tha t the Chamber's agreement to expend these public funds renders it a public body subject to the record dis closure requirements

of the FOIA.

The majority has employed an ela borate analysis to avoid the pl ain language of the FOIA under the guise of "discern ing legislative intent." However, our law does not permit us to look outside t he 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 ther e is no need to resort to statutory interpretation or leg islative 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 ambigu ity, there is nothing for a court to construe , that is, a court should not lo ok beyond the statutory text to discern its meaning."). The majority acknowledges ther e 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. Acco mmodation tax funds are, of course, public funds. Therefore, if we look only to FOIA as Domains suggests a nd 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 onl y to FOIA," because there is no ambiguity in it. Based on the plain language in subsecti on 30-4-20(a), the Chamber is a public body and ther efore subject to the record di sclosure requirements of the FOIA.Even if we did look beyond the FOI A, however, the majority's ju stification for finding the Act does not apply in this circumstance fails. Fir st, the majority's

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

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

"it is vital in a democratic soc iety that public business be performed in an open and public manner so that citizens sh all be advised of the performa nce of public

officials and of the decisions t hat are reached in public activ ity and in the formulation of public policy." § 30-4-15. Therefore, the Gene ral Assembly enacted the FOIA "to make it po ssible for citizens . . . to lea rn and report fully the activities of their public official s 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 activit y.").

The majority states the accomm odations tax statute and Proviso 39.2 "play the lead role in our disposition of this case" because they "provide a c omprehensive approach for the receipt, expend iture, and oversight of these [ public] funds." In other words, the majority finds t he policy of the FOIA is fulfi lled through the

accommodations tax statute and Proviso 39.2. Thi s conclusion i s wrong. Although the accommodations tax s tatute does have specific prov isions 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 t ax statute does not address t he 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 cont rary to the policy. By placing the responsibility for the expenditure of public funds in the hands of a private entity such as the Cha mber, and then relying on public officials for "oversight," with no right of access by the public, the accommo dations tax statute actually inhibits citizens from being "advised of the performan ce of public officials

and of the decisions that are re ached in public activity," ther eby frustrating—not furthering—the "vital" po licy of open government.

To the extent the policy behind the FOIA could be furthered by "oversight" from public officials, the record in th is case reveals the informati on provided to those public officials does not allow the officials to determine how the funds are being spent. For example, I asked couns el for the Chamber at oral ar gument about a specific line item contained in t he Chamber's proposed budget f or spending

accommodations sales tax funds in fiscal year 2013-14. The lin e appears under the headings "Expenses" and "Digital Marketing," and reads, "SEM Ma rketing[$]200,000." 8 I asked, "In the town's relati onship with the Chamber, . . . as a matter of course, the town doesn't know what the $200,000 repre sents for SEM marketing?" Counsel responded, " Well, it may. I don't know." After several other questions and answers, counsel agr eed with the following assert ion:

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 indivi dual vendors, whether they submitted bids, what were the bids, what was the highest bid, and on and on and on.

This demonstrates the reality t hat the accommodations tax statu te does not allow the public to learn how public funds are being spent with any d egree of specificity, and therefore the statute does not meet the policy goals of the FOIA.

Second, the majority relies heav ily on the principle that a mor e specific statute (subsection 6-4-10(3)—the accommo dations tax statute) controls the more general one (FOIA). That principle is i napplicable in this case becaus e 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 (2 006), the case cited by the majority to support its applica tion of the principle, we held t he principle applied only if the statutes address "t he identical issue." 368 S.C. a t 142, 628 S.E.2d at 41. The FOIA requires that a public body disclose its records; the accommodations tax

statute does not even a ddress that issue.

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

Foundation , 303 S.C. 398, 401 S. E.2d 161 (1991), is misplaced. We did no t 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 Cham ber's receipt and expenditure of accommodations sal es tax revenues in this case, and held the FOIA

8 SEM marketing—or search engine ma rketing—is defined as "a proc ess by which multiple methods are utilized to improve market visibility and exposure for a brand, product or service" and includes "search engine optimiza tion (SEO), social networking, bid placement, pay-p er-click (PPC), c ontextual adve rtising, paid inclusion, geomapping, . . . as we ll as multiple media formats, such as YouTube and geospecific marketing, lik e Foursquare." Techopedia, Search Engine Marketing (SEM)

, https://www.techopedia.com/definition/25079/search-engine

marketing-sem (last visited Apr. 2, 2018).applies. We stated "the unambig uous language of the FOIA manda tes 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 t hat 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 identi fiable goods or services and access to the public body's re cords 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 rel ated organization undertakes the management of the expe nditure of public funds, the only way that the public can d etermine 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 passag e was to point out different types of transactions and to explain that transaction s made on an "arm's length basis" would not trigger t he FOIA because "there is an e xchange of money for identifiable goods or servic es and access to the public bod y's records would show how the money was spent." T his passage was never intended to create any additional requirement—or a "more involved" analysis—to determi ne the applicability of the FOIA.

In contrast to the majority's proposition, the quoted language from Weston requires a finding that the FOIA does appl y to the Chamber. The Chamber 's agreement to expend these funds does not invol ve the type of "arm's length" transaction that is an "exchange of money for identif iable goods or services" we sa id in Weston would not be subject to the FOI A. Rather, the Chamber's decision to play this role required it to "manage and dire ct the expenditure of these tour ism promotion funds," § 6-4-10, which is precisely the type of transaction we held in Weston is always subject to the FOIA, 3 03 S.C. at 404, 401 S.E.2d at 165 (finding the FOIA applies when an "organization unde rtakes the management of the expenditure of public funds"). As such, "the on ly way that the public can det ermine with specificity how those funds were spent is through access to the records and affairsof the organization receiving and spending the funds." Id. Therefore, Weston does not support the majority's propo sition that "the applicability of FOIA to a non

governmental entity is more invol ved than classification as a p ublic 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 c oncern over the Chamber being exposed to other requirements under the FOIA if we find it is a public body. Th ose other requirements include open meeti ngs, 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 sol utions to this problem. One, if the Chamber doe s not wish to subject itself t o all of the requirements of the FOIA, it may choose not to serve as the des ignated marketing organization to "receive" and "direct the expenditure" of accommodations sales tax revenues. Two, if the Chamber is unwilling to give up its posi tion as the designated marketing organizati on, it can easily create a separ ate subsidiary or related entity devoted solely to that function. The majority's concerns are unfounded.

For these reasons, I respectfully dissent.