Public or private? Appellate court considers FOIA case against prosecutor

Attorney argues client is exempt from FOIA because she is not a ‘public body’

By Phillip Bantz
BridgeTower Media Newswires
COLUMBIA — The South Carolina Court of Appeals heard arguments earlier this month in Lawyers Weekly’s public records lawsuit against 9th Circuit Solicitor Scarlett Wilson. The case of first impression centers on whether ethical complaints and disciplinary records related to a lawyer’s conduct as a public official should be kept private.

Wilson’s attorney, J. Emory Smith Jr., deputy solicitor general, argued during the Oct. 5 hearing in Columbia that his client was exempt from the Freedom of Information Act because she is not a “public body.”

“They were not asking for records of the [solicitor’s] office,” he said in court. “They were asking for records of her personally.”

Considering Smith’s argument, Chief Judge James Lockemy wondered whether the state Attorney General’s Office was representing the solicitor’s office or Wilson individually. She is an elected official who serves as the chief prosecutor for Berkeley and Charleston counties and cannot practice law in any way other than as a solicitor.

“The question is, if you’re arguing for her personally, it seems to me that you would be her personal attorney,” Lockemy said. “But you’re here as a public body representing, I assume, a public body.”

Smith said he was defending Wilson “as solicitor .. because that’s how the suit was styled. They did not bring it against her personally. They sued her as solicitor, but her personal records are not subject to production under FOIA.”

Judge Thomas Huff questioned whether the records would have to be released if the FOIA request was aimed at the solicitor’s office, rather than Wilson. He said the request, which was made to Wilson as a member of the bar, “seemed to be in a personal nature … versus her public role as solicitor.”

“But then I thought even if that is the case, if the personal things which generally are personal in disciplinary investigations move into an arena and are held in a public body, does that change the ability to claim the protection?” he asked.

Smith asserted that the request still would have been denied if it had been sent to the solicitor’s office instead of Wilson.

“The solicitor’s office would not produce those because they would not be records of that office,” he said. “They would be her records and for the reasons we set forth would not be subject to disclosure … under Rule 12” of the Rules for Lawyer Disciplinary Enforcement.


‘Somebody must have royal blood’

Lawyers Weekly’s attorney, Desa Ballard of Ballard & Watson in West Columbia, argued that Rule 12 was irrelevant in this dispute because it addresses restrictions that apply only to the state Supreme Court and its agencies that investigate and prosecute ethical complaints: the Commission on Lawyer Conduct and Office of Disciplinary Counsel.

The rule generally prohibits those three entities from releasing information about complaints against lawyers before formal charges have been filed, but complainants and lawyers who are the subject of grievances are free to discuss the matters publicly.
“Rule 12 doesn’t apply here at all,” Ballard told the Court of Appeals panel, which also included Judge Gary Hill. “No. 1, because it’s limited. No. 2, because it’s not sanctioned. And No. 3, because it doesn’t define the nature of the documents. It only defines the nature of the proceeding.”

She also asserted that Wilson waived confidentiality because she used public resources in crafting her reply, which was written on the solicitor’s office’s official letterhead, referred to Wilson in the third person and was not signed. Her response also acknowledged that grievances had been filed against her in connection with her duties as a solicitor.

“The short answer to all this is that Ms. Wilson held the keys as to how this question got teed up,” Ballard said. “She answered this as a public official. She answered this as a public body. She could have very easily said, ‘Hey, this is personal,’ and it could have come on personal letterhead from her personal address.”

Huff said Wilson’s response gave him “a little bit of a pause” and “seems to address things in the context of the solicitor’s office and what she’s doing there.”

“It almost looks third person,” he added. “Somebody must have royal blood.”

“I would assume that person’s on the public payroll,” Ballard replied.

Request followed tips from sources

Lawyers Weekly filed the FOIA request in question in July 2015, after sources reported that the Commission on Lawyer Conduct had issued a letter of caution or a confidential admonition against Wilson. The letter is a warning and is not considered to be a sanction, unlike an admonition, which is imposed in cases of minor misconduct.

The sources reported that the commission, which has 50 members — 34 are lawyers and 16 are not — disciplined Wilson after an assistant public defender complained that prosecutors had been meeting secretly with inmates at the Charleston County jail without permission from their public defenders.

Wilson was the subject of a similar complaint in 2004, when she was a deputy solicitor. At the time, she defended her actions by contending that she had not discussed an inmate’s pending charges when she met with him without his public defender being present.

In 2014, Ballard filed ethics complaints against Wilson and Charleston’s chief public defender, Ashley Pennington, a few months after the South Carolina Association of Criminal Defense Lawyers filed a grievance against Wilson. All three complaints were dismissed.

The grievances alleged that Wilson encouraged a win-at-all costs mindset among her assistant prosecutors while Pennington discouraged his assistant defenders from speaking out about prosecutorial misconduct.

“I didn’t have a dog in the fight,” Ballard said at the time. “I felt like there was evidence of misconduct that I felt obligated to report. So that’s what I did.”

In response to Wilson’s refusal to disclose her disciplinary records under FOIA, Lawyers Weekly argued that the “public has an interest in being informed regarding regulatory complaints made against public officials, including those who are elected directly by the electorate, and the disposition thereof.”


Public body, not subject to FOIA

During a hearing on Wilson’s motion to dismiss the suit, Charleston County Circuit Judge R. Markley Dennis Jr. remarked that “if the only issue was whether or not she [Wilson] is a public body there is no question what I would do. I mean I think she is.”
But he ruled that the records in question were private under Rule 12, not subject to disclosure under FOIA and that ordering their release would “be an unreasonable invasion of personal privacy.”

Before he issued his order dismissing the suit, Dennis quoted the late state Supreme Court Chief Justice Julius “Bubba” Ness, saying: “I may be wrong but never in doubt.”

“I used to think it was pretty presumptuous as a lawyer. But when I took this job I began to understand he is right,” Dennis said. “You know I — y’all may be — you may be right, but today I am not in doubt about what I am doing. I am comfortable with my decision. And if the court says, ‘Judge, you have made a mistake,’ I will try to learn from that.”