BLYTHEWOOD – On Monday, Aug. 30, the town reversed its refusal to release responsive documents sought by The Voice from Town Administrator Carroll Williamson through a Freedom of Information Act (FOIA) request 41 days earlier.
The Voice requested the following documents:
1) a copy of the contract or letter of engagement that secured the outside legal services of Nexsen Pruet attorney David Black and a copy of documentation of the retainer paid for Mr. Black’s services as well as any subsequent invoices for his services, and
2) copies of documentation showing whether town attorney Shannon Burnett is being paid for the MPA matter outside her normal agreed-upon annual compensation from the town.
In the Aug. 30, 2021 response, the Town’s outside counsel, David Black, an attorney with Nexsen Pruet law firm in Columbia, went into lengthy detail clarifying two exemptions that he claimed allows for the Town to withhold the requested documents:
1)“S.C. Code Ann. § 30-4-40(a)(3)(A) provides an exemption to FOIA where the records or information requested would interfere with a prospective law enforcement proceeding. The records and information you have requested would interfere with a prospective law enforcement proceeding.”
(Black did not explain the nature of that law enforcement proceeding and did not respond to The Voice’s request for copies of subsequent invoices to the Town for his firm’s legal services.)
2) “S.C. Code Ann. § 30-4-40(a)(7) provides an exemption to FOIA for Attorney Work Product and any other material that would violate Attorney-Client Relationships. The records and information you requested will not be provided as it is Attorney Work Product and is also exempt via the Attorney Client Privilege.”
In a clear reversal of this response, Black, did, however, forward the requested documentation to The Voice with only one paragraph redacted and with the following explanation for his decision to release the documentation to The Voice:
“While the engagement letter clearly is marked privileged, the Town is producing the redacted version of the engagement letter, subject to and without waiving such privilege, in hopes that such production will put an end to your [The Voice’s] ongoing attempts to assist MPA and Ms. Hunter in their litigation that has damaged the Town. [See Publisher’s Note]
Besides including the redacted letter of engagement, Black, acknowledged that the Town’s municipal attorney, Shannon Burnett, is not receiving compensation for her work on the MPA lawsuit and the Town’s countersuit outside what she is normally paid by the Town.
While one paragraph of the engagement letter, dated April 21, 2021, was redacted, the letter disclosed that the Town paid Black an initial $5,000 retainer and that an additional retainer could be required if there is a change in the scope of the engagement such as the firm’s appearance in litigation.
The Voice has issued a second FOIA to the Town for information pertaining to any additional retainer fees charged to the Town since MPA filed suit against the Town on June 28, 2021.
The letter of engagement also revealed that Black’s fee is $475 per hour and that another attorney in the firm, who would be assisting the Town, charges a fee of $315 per hour.
According to the letter, the Town also agreed to pay for any ancillary fees billed to the firm by third parties and any necessary expenses for travel, lodging, meals mileage, copies, computerized research, staff overtime and other expenses related to the terms of the firm’s agreed upon engagement with the Town.
In an initial Aug. 3, 2021, response to The Voice’s July 20 FOIA request, Black refused to send the letter of engagement and other requested documents, stating that “The Town has advised that it is in possession of responsive records as you describe in your request, however, such records are exempt from disclosure pursuant to S.C. Code Ann. 30-4-40(a)(3) and (7).
The Voice responded on Aug. 20 that, “When an exemption is cited in a written determination response to a S.C. FOIA request, it must be fully stated. Simply citing to 30-4-40(a)(3) does not satisfy your legal requirement to cite an exemption. (a)(3) has seven subsections (A)-(G) and each carries a different rationale to keep information exempt.
“Until you provide a written determination that includes which exemption you are using – I’m assuming you aren’t saying all seven subsections apply simultaneously – it’s not possible for me to know if I have a right to access information of this/these type(s). Please clarify which of the subsections you are intending to cite for nondisclosure.”
With no response after a week, The Voice sent another email to Town Administrator Carroll Williamson on Aug. 27, 2021, with a deadline of Aug. 31 for a response. That response (detailed at the beginning of the story) was received on Tuesday, Aug. 30 at 5:42 p.m.
Publisher’s Note: The Town and Black continue to blame The Voice and others for the predicament it finds itself in, but the reference to The Voice here describes what newspapers do – seek and report information of interest and significance through the use of material gathered from sources and public records.
