October 19, 2017
from Beaufort County Michael G. Nettles, Circuit Court Judge
E. Stepp, Tina M. Cundari, and Bess J. DuRant, all of Sowell
Gray Step & Laffitte, LLC, of Columbia, for Appellant.
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.
Bender, of Columbia, for Amicus Curiae South Carolina Press
appeal presents the question of whether Appellant Hilton Head
Island-Bluffton Chamber of Commerce (Chamber) is subject to
the Freedom of Information Act (FOIA) 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.
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.
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.
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.
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) (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).
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.
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
addition to these purely private activities, since 1983, the
Chamber has served the Town of Hilton Head Island as its
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
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.
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.
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
"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 ...