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ELECTRONICALLY FILED - 2019 Apr 11 2:30 PM - HORRY - COMMON PLEAS - CASE#2019CP2602216

THE STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS


) FOR THE FIFTEENTH JUDICIAL CIRCUIT
COUNTY OF HORRY )
) Case No. 2019-CP-26-_____
Emily Christianson, )
Plaintiff, )
) Summons
vs. )
)
)
Horry County, )
Defendant. )
___________________________________ )

TO THE DEFENDANTS ABOVE-NAMED:


YOU ARE HEREBY SUMMONED and required to answer the complaint herein, a copy
of which is herewith served upon you, and to serve a copy of your answer to this complaint upon
the subscriber, at the addresses shown below, within thirty (30) days after service hereof, exclusive
of the day of such service, and if you fail to answer the complaint, judgment by default will be
rendered against you for the relief demanded in the complaint.

Respectfully Submitted,

By s/E. Charles Grose, Jr.

E. Charles Grose, Jr.


S.C. Bar Number 66063
The Grose Law Firm, LLC
404 Main Street
Greenwood, SC 29646
(864) 538-4466
(864) 538-4405 (fax)
Email: charles@groselawfirm.com

By s/Brie Rust Russell

Brie Rust Russell


900 Elmwood Ave, Suite 200
Columbia, SC 29201
brie.russell@russelllaw.us
(803) 727-5314

Attorneys for Emily Christianson


April 10, 2019.

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ELECTRONICALLY FILED - 2019 Apr 11 2:30 PM - HORRY - COMMON PLEAS - CASE#2019CP2602216
THE STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) FOR THE FIFTEENTH JUDICIAL CIRCUIT
COUNTY OF HORRY )
) Case No. 2019-CP-26-_____
Emily Christianson, )
Plaintiff, )
) COMPLAINT FOR DECLARATORY
vs. ) JUDGMENT AND INJUNCTIVE RELIEF
)
FOR VIOLATION OF THE FREEDOM OF
)
Horry County, ) INFORMATION ACT, S.C. CODE ANN. §
Defendant. ) 30-4-10 (2017), et seq.
___________________________________ )

COMPLAINT

This is a lawsuit seeking to enforce the right to inspect public records pursuant to the South

Carolina Freedom of Information Act (“FOIA”), S.C. Code Ann. § 30-4-10 (2017), et seq. On

January 9, 2019, Plaintiff Emily Christianson, a Cornell Law student, requested data from

Defendant Horry County Office of Public Information relating to public records of homicides in

Horry County. The Horry County Office of Public Information has returned Plaintiff’s requests

for access to the requested electronic records with an exorbitant cost, in violation of S.C. Code

Ann. § 30-4-30. This Court’s intervention is consequently required.

Jurisdiction and Venue

1. This action arises under the authority vested in this Court by virtue of S.C. Code

Ann. § 14-5-310, et seq., and § 30-4-100.

2. All matters complained of in this action occurred in Conway, SC, which is located

in Horry County. Venue for this action is therefore proper in Horry County, South Carolina,

pursuant to S.C. Code Ann. § 15-7-10, et seq.

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Parties

3. Plaintiff Emily Christianson is a “person” as that term is defined in S.C. Code

Ann. § 30-4-20(b). Plaintiff was a student at Cornell Law School during the time period at issue.

4. Defendant Horry County is a “public body” as that term is defined in S.C. Code

Ann. § 30-4-20(a) and is therefore subject to the disclosure requirements set forth in the FOIA.

Defendant maintains its primary place of business at 1301 Second Avenue, Conway, SC, is a

legal resident of Horry County, South Carolina, and is amenable to service of process in Horry

County. Defendant’s primary offices involved were the Horry County Office of Public

Information and Horry County Clerk of Court. At all times relevant to the facts herein,

Defendant acted by and through its agents, servants, or employees.

Relevant Facts

5. Plaintiff visited the Horry County Clerk of Court’s office on January 8, 2019 to

informally request the public records to be pulled while present in the office. Plaintiff stated that

the intention was to pull the records in person and scan each document. Heather Lewis, the

Office Manager of Horry County Clerk of Court Office, replied that the records Plaintiff

requested were previously scanned and were available online. Heather Lewis offered to email

Plaintiff the documents without a FOIA request and, therefore, without cost. Heather Lewis took

the list of case numbers as well as Plaintiff’s email and affirmed that she would email the

previously scanned documents to Plaintiff. Heather Lewis emailed Plaintiff later that day stating

that the request would have to go through the FOIA office to receive the documents.

6. The next morning on January 9, 2019, Plaintiff went to the Horry County Clerk of

Court’s office to discuss the matter in person and inquire as to why there needed to be a FOIA

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request. Heather Lewis stated that the office decided that there was personal information on the

documents requested that would have to be redacted before being shared. Plaintiff stated that the

office had previously made similar documents without necessitating a FOIA request. Ms. Lewis

stated that the office had changed their policy. A true and correct copy of Plaintiff’s

correspondences with Ms. Lewis is attached as Exhibit A.

7. On January 9, 2019, Plaintiff sent a FOIA request to Defendant, in which Plaintiff

asked to inspect public records pursuant to S.C. Code Ann. § 30-4-30(a). The request was

batched into thirteen lists of case numbers, the same case numbers given to Ms. Lewis the day

prior. The list was batched by year to make the process of accessing the files more manageable.

A true and correct copy of Plaintiff’s FOIA requests to Defendant is attached hereto as Exhibit

B.

8. Plaintiff’s FOIA requests sought disclosure of public records for homicide cases,

including warrants, sentencing sheets/dispositions, and indictments. Plaintiff included a list of

211 individual case numbers. Plaintiff only requested documents that were available

electronically.

9. Plaintiff emailed thirteen FOIA requests to Kelly Brosky, an Administrative

Assistant for the Office of Public Information in Horry County. The requests included the same

list given to Ms. Lewis the day prior. Ms. Brosky replied that she had received the requests and

asked for clarification on the type of documents requested. Ms. Brosky’s response is attached as

Exhibit C.

10. Ms. Brosky responded to the requests 6 days later on January 15, 2019. Ms.

Brosky stated in part that “the cost of complying with the request would be approximately

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$2,125 (not including copies).” The email further requested a deposit of $531.25 to be submitted

prior to the office undertaking the search and/or making copies of records.

11. On February 5, 2019 Plaintiff emailed a reply stating that she was interested in the

documents from the requests and would like to know how the office calculated the estimate cost

for the requests. The same day Ms. Brosky replied stating that “the fees assessed are in

compliance with the South Carolina Freedom of Information Act.” Plaintiff replied on February

11, 2019 asking for an itemized list of reasons or internal communications that were used in the

fee assessment. The email further stated that based on her analysis, she believed that the total

cost was too high to be consistent with the statute. Plaintiff further stated that she was using the

documents in the request for educational purposes and included that she was acting on behalf of

a law school class and professors in requesting the documents.

12. The same day Ms. Brosky replied, “as previous stated, the fees assessed are in

compliance with the South Carolina Freedom of Information Act.” Attached as Exhibits D are

the aforementioned communications between Plaintiff and the South Carolina public body.

13. On February 15, 2019 Plaintiff submitted a second FOIA request via email to

Kelly Brosky. The information requested were “all electronic emails, documents, or other

communications in the Horry County Public Records or between other Horry County officials

regarding the FOIA request we made on 01/09/19.” The email further specified that Plaintiff

only requested electronic versions of the documents. Ms. Brosky replied the same day stating

that she had received the request. A true and correct copy of Plaintiff’s second FOIA request and

the email communications to Defendant is attached hereto as Exhibit E.

14. Ms. Brosky replied to the second FOIA request on March 4, 2019 stating that the

cost of complying with the request would be approximately $25. Plaintiff then sent a check for

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the stated cost to the Office of Public Information in Horry County. On March 18, 2019 Kelly

Brosky sent the requested records. The records included one email from Ms. Brosky to Ms.

Lewis asking Ms. Lewis to estimate staff time, stating that she “imagin[ed] that this request

would be pricy.” Ms. Lewis replied that it would take approximately one week to complete this

request and that without knowing the number of documents in each file she would be unable to

estimate a copy cost. Ms. Lewis stated that this would cost somewhere between $1500-$2000.

The correspondences between Ms. Lewis and Ms. Brosky took place on January 14, 2019.

Attached as Exhibit F is the response to the FOIA request and Exhibit G are the documents

produced from the second FOIA request.

Horry County’s Violation of the South Carolina Freedom of Information Act

15. The allegations set forth in the foregoing paragraphs 1-12 are incorporated herein

by reference.

16. S.C. Code Ann. § 30-4-30(a) provides that “[a]ny person has a right to inspect or

copy any public record of a public body, except as otherwise provided by § 30-4-40, in

accordance with reasonable rules concerning time and place of access.” S.C. Code Ann. § 30-4-

30(c) provides that a South Carolina public body in receipt of a written FOIA request “shall

within fifteen days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of

any such request notify the person making such request of its determination and the reasons

therefor.” S.C. Code Ann. § 30-4-15 provides that “provisions of this chapter must be construed

so as to make it possible for citizens…to learn and report fully the activities of their public

officials at a minimum cost…to the persons seeking access to public documents.”

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17. Plaintiff had a right to inspect or copy the records described in her records request

because they constitute “public records,” as that term is defined in S.C. Code Ann. § 30- 4-20(c),

and are not exempt from disclosure under S.C. Code Ann. § 30-4-40.

18. Defendant violated the FOIA’s prohibition against charging fees that exceed the

“actual cost of the search, retrieval, and redaction of records,” and failed to satisfy the

requirement that “[t]he records . . . be furnished at the lowest possible cost to the person

requesting the records.” See S.C. Code Ann. § 30-4-30(b). Further, the Defendant violated the

FOIA’s provision that “[c]opy charges may not apply to records that are transmitted in an

electronic format.” Id. The Defendant charged more than the actual costs of producing the

requested documents. The charge of $2,125 to produce and possibly redact warrants, sentencing

sheets/dispositions, and indictments for a list of 211 case numbers, all electronically held by the

office, is far more than the production would actually require. The resulting cost of $2,125 for

the request indicates that the request would take 85 hours to complete, based on the fee schedule

posted online states that the fees would be assessed with a $25 per hour rate.

19. The office’s estimation of time is exorbitant for two reasons. First, Ms. Lewis

stated in her email response to Ms. Brosky that the request would take about a week to fill. An

average employee in the Horry County Clerk of Court’s office works about 40 hours a week. The

cost returned reflects more than double the amount than the time that Lewis stated it would take

to fulfill the request. Furthermore, a full week, 40 hours, to redact one line from the electronic

documents is excessive and unreasonable. Second, Ms. Lewis stated on January 8, 2019 that she

would be able to retrieve the documents requested in about a day. Granted, Ms. Lewis then stated

that the documents might have to be redacted and we would have to go through the FOIA

process. However, the emails from Ms. Brosky to Ms. Lewis do not reference any redactions

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necessary for the request. Even if the office stated that the documents needed to be redacted, 85

hours to redact one social security number from each of the documents is a severe

overestimation.

20. The suggestion of a copy cost as an additional cost to the FOIA request is in direct

conflict with the statute’s prohibition on copy costs for documents in an electronic format. See

S.C. Code Ann. § 30-4-30(b). Heather Lewis previously stated that the requested documents

were all scanned, and therefore, were held in electronic format. In addition, the Plaintiff clarified

to Ms. Brosky that the request was only for electronic documents.

21. However, the correspondence from Heather Lewis to Kelly Brosky stated that

Ms. Lewis was not sure about how many documents were in each file and therefore would not be

able to provide a copy cost to accompany the FOIA request fee and Ms. Brosky stated in the

FOIA fee reply that the fee did not include copy costs, which would include an additional $0.15

per page.

22. On January 7, 2019 the Sun News published an article stating that Horry County

estimated it would cost $75,500 to fulfill their FOIA request. The Sun News asked for a detailed

invoice explaining the estimates and Ms. Brosky replied that “the fees assessed are in

compliance with the South Carolina Freedom of Information Act.” The Sun News then requested

the internal correspondences about their FOIA request. The newspaper used the Horry County

Office of Public Information fee schedule online as well as the email correspondences and

estimated that their FOIA request should cost less than $9,350, if in compliance with the statute.

The report from the Sun News is attached as Exhibit H.

23. There is a pattern of inflating FOIA request fees in Horry County that violates the

South Carolina Freedom of Information Act. Horry County estimated a fee for the Sun News

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FOIA request that was eight times greater than the statute would permit. Further, the fee required

for the second FOIA request submitted by Plaintiff is clearly exorbitant for what the office was

asked to produce. The office estimated that producing one sequence of emails would require a

full hour of work and charged $25 to fulfill that request as a result.

24. By failing to give Plaintiff access to the public records Plaintiff requested at the

lowest possible cost, Defendant has violated and is continuing to violate Plaintiff’s rights under

FOIA.

The Lack of Transparency from the Horry County Government Undermines the Purpose

of the South Carolina Freedom of Information Act

25. The allegations set forth in the foregoing paragraphs 1-21 are incorporated herein

by reference.

26. The “Findings and Purpose” section of the statute provides that “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.” S.C. Code Ann. § 30-4-15.

27. The lack of transparency between the Horry County office and the public is

antithetical to the purpose of the South Carolina statute and the idea of free information from the

government. When Plaintiff asked for a detailed explanation of how Defendant came to the cost

of the FOIA request, Defendant replied opaquely that “the fees assessed are in compliance with

the South Carolina Freedom of Information Act.” When the Sun News also requested an itemized

invoice of how Defendant returned the cost to their FOIA request, they received the same

response. The lack of transparency made Plaintiff, and the Sun News, file a second FOIA request

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for internal communications about the requests in order to gain any information on Defendant’s

calculation of the fee. The information gained from the second FOIA requests was incomplete to

fully understand how Defendant calculated its estimate of the FOIA fees.

Prayer for Relief

Wherefore Plaintiff respectfully requests that the Court enter an order awarding the following

relief, as authorized by S.C. Code Ann. § 30-4-100:

1. A declaratory judgment that Plaintiff is entitled to inspect and obtain copies of all

documents requested in Plaintiff’s FOIA requests, which is attached hereto as Exhibit A.

2. An injunction requiring Defendant to produce immediately the public records requested

in Plaintiff’s FOIA requests, which is attached as Exhibit A to this Complaint, and to waive all

fees associated with the search for and production of public records in response to Plaintiff’s

FOIA requests.

3. An award of Plaintiff’s reasonable attorney fees and other costs of litigation incurred in

pursuing this action.

4. Such other legal and equitable relief as this Court considers appropriate.

Respectfully Submitted,

By s/E. Charles Grose, Jr.

E. Charles Grose, Jr.


S.C. Bar Number 66063
The Grose Law Firm, LLC
404 Main Street
Greenwood, SC 29646
(864) 538-4466
(864) 538-4405 (fax)
Email: charles@groselawfirm.com

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By s/Brie Rust Russell

Brie Rust Russell


900 Elmwood Ave, Suite 200
Columbia, SC 29201
brie.russell@russelllaw.us
(803) 727-5314

Attorneys for Emily Christianson


April 10, 2019.

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