South Carolina Lawyers Weekly, By and through its principal, Dolan Publishing Company, Appellant,
Scarlett Wilson, Solicitor of the Ninth Judicial Circuit, an elected public official, Respondent. Appellate Case No. 2016-000555
October 5, 2017
From Charleston County R. Markley Dennis, Jr., Circuit Court
Ballard and Harvey M. Watson, III, both of Ballard &
Watson, Attorneys at Law, of West Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Solicitor General
Robert D. Cook, and Deputy Solicitor General J. Emory Smith,
Jr., all of Columbia, for Respondent.
action pursuant to the Freedom of Information Act (FOIA),
South Carolina Lawyers Weekly (Appellant) asserts the circuit
court erred in refusing to compel Scarlett Wilson, as
Solicitor of the Ninth Judicial Circuit, to produce any
disciplinary complaints against her. Appellant argues the
circuit court erred by: (1) failing to find Wilson is a
public officer and her office is a public body subject to
FOIA; (2) relying on Rule 12 of the Rules of Lawyer
Disciplinary Enforcement to determine the requested documents
are not required to be disclosed; (3) finding the documents
were exempt from FOIA pursuant to S.C. Code Ann. §
30-4-40(a) (2007 & Supp. 2017); and (4) failing to find
Wilson waived her right to confidentiality. We affirm.
10, 2015, Phillip Bantz, a staff writer for South Carolina
Lawyers Weekly sent a FOIA request to Solicitor Wilson's
official email address requesting "any records relating
to any disciplinary complaints against you or action taken
with respect to you as a member of the bar."
Ninth Circuit Solicitor's Office (the Solicitor's
Office) responded, on official letterhead, and denied
Bantz's request. The office noted, "In the last year
a number of grievances have been filed against Ms. Wilson by
or at the behest of disgruntled criminal defense lawyers . .
. . The South Carolina Office of Disciplinary Counsel
thoroughly investigated these matters and recommended
dismissal of all of these charges."
denying the FOIA request, the Solicitor's Office noted
that "[w]hile the Solicitor's Office is a
'public body' and subject to FOIA, Ms. Wilson is not
personally a 'public body.'"
Solicitor's Office further asserted that, were Solicitor
Wilson a 'public body, ' the documents requested
would be exempt from disclosure under several FOIA
exemptions. First, the Solicitor's Office asserted the
documents were exempt from disclosure because they are
information of a personal nature. See S.C. Code Ann.
§ 30-4-40(a)(2) (Supp. 2017). The Solicitor's Office
also claimed the documents were specifically exempted from
disclosure by statute or state law by Rule 12 of the South
Carolina Rules for Lawyer Disciplinary Enforcement (RLDE),
which requires disciplinary complaints remain private.
See S.C. Code Ann. § 30-4-40(a)(4) (2007).
Finally, the Solicitor's Office argued the requested
documents included information protected by the
attorney-client relationship. See S.C. Code Ann.
§ 30-4-40(a)(7) (2007).
subsequently filed a declaratory judgment action requesting
the court declare Solicitor Wilson a public body and any
documents she possessed pertaining to her disciplinary
records must be made available. Appellant asserted Solicitor
Wilson is a public official whose only legal services are
provided in her capacity as a public official. Accordingly,
Appellant argued "Any documents from the Office of
Disciplinary Counsel and/or the Commission on Lawyer Conduct
received by her relate wholly to her conduct in her capacity
as a public official and are thus public documents."
also asserted the exemptions Solicitor Wilson claimed were
inapplicable in this case. According to Appellant, any
reliance by the Solicitor's Office on Rule 12, RLDE, is
inappropriate in this case because the Rule only dictates
that members and staff of the Commission on Lawyer Conduct,
disciplinary counsel and its staff, and the members and staff
of the Supreme Court should not reveal the existence of a
complaint. Appellant also argued the Solicitor's Office
revealed the existence and content of some of the complaints
against Solicitor Wilson in its response to the FOIA request,
waiving Wilson's claim to confidentiality.
hearing, the circuit court filed its order granting Solicitor
Wilson's motion to dismiss on February 10, 2016. The
circuit court did not reach the issue of whether Solicitor
Wilson is a public body, but rather found the documents were
not 'public records' pursuant to the FOIA. The court
found the documents were protected from disclosure under Rule
12, RLDE, and as such were exempted from disclosure under
section 30-4-40(a)(4). The court also found Solicitor Wilson
had not waived her right to confidentiality of the
disciplinary complaints by referring to them generally in her
response because "Ms. Wilson's letter had no intent
whatsoever to waive confidentiality when she invoked the
Rules on Lawyer Disciplinary Enforcement in her response
letter and made quite clear she ...