Does South Carolina's open records law require the prison system to release photos its tablets take of inmates?

Plain-English summary

The Director of the South Carolina Department of Corrections (SCDC) asked whether the agency has to hand over, under the Freedom of Information Act (FOIA), the photos its inmate tablets snap automatically. When an inmate logs into a tablet with a personal PIN, the tablet photographs them and keeps taking periodic photos during the session, so staff can tell who was actually using the device if a PIN gets shared. SCDC will release the tablet session records but wants to withhold the photos.

The Attorney General agreed with SCDC's reading. FOIA gives anyone the right to inspect or copy a "public record," but § 30-4-20(c) carves certain things out of the definition of "public record" entirely, including "information relating to security plans and devices." The AG explained that this exclusion is mandatory, and it is different from the discretionary exemptions elsewhere in FOIA. Because SCDC uses the photos specifically to stop inmates from beating tablet access restrictions by borrowing another inmate's PIN, the AG concluded a court would likely treat them as security devices and uphold withholding them.

The AG leaned on a prior 2017 opinion (which read "security plans" broadly enough to cover cybersecurity infrastructure) and on federal cases holding that detention-center surveillance footage and inmate-transport procedures can be kept confidential. It also stressed a recurring theme in prison cases: courts generally defer to corrections officials on security judgments. The AG noted it cannot make factual findings, so it accepted SCDC's description of why the photos matter for security and answered the legal question on that basis.

What this means for you

The opinion is about three years old, so the FOIA framework it describes is likely still current, but remember the AG framed its bottom line as what a court "would likely" do, not a guarantee.

South Carolina agencies and records custodians

The opinion treats the § 30-4-20(c) "security plans and devices" language as a mandatory exclusion: records that fit it are not "public records" at all, rather than records you have discretion to release. The AG's reasoning ties the exclusion to a record's security purpose, so an agency withholding on this ground should be able to articulate, as SCDC did, the specific security function the record serves. The opinion also repeats the FOIA default the AG has stated many times: when in doubt, disclose, and separate exempt from non-exempt material rather than withholding an entire record (Beattie v. Aiken Dept. of Social Services).

Journalists and people requesting prison records

Under this opinion, tablet session records are generally obtainable, but the automatic login photos of inmates are the kind of record a court would likely let SCDC withhold as a security device. If you are told photos are being withheld under § 30-4-20(c), this opinion is the reasoning you will be up against. The AG did not hold the photos are categorically secret; it concluded a court would likely defer to SCDC's security rationale on the facts presented.

Attorneys handling FOIA disputes

The opinion distinguishes FOIA's mandatory exclusions (§ 30-4-20(c)) from its discretionary exemptions (§ 30-4-40) and collects the authority for judicial deference to corrections officials on security, including Pell v. Procunier (U.S. Supreme Court) and federal district decisions like Flaherty-Ortega v. Horry County. It also reaffirms that a public body cannot use an exemption to withhold an entire file when exempt and non-exempt material can be separated.

Common questions

Q: Are the tablet session records themselves public in South Carolina?
A: The opinion treats the underlying tablet session records as generally available under FOIA. It is the automatic photographs of the inmate, taken to enforce PIN security, that the AG concluded a court would likely allow SCDC to withhold.

Q: What is the "security plans and devices" exclusion?
A: Section 30-4-20(c) says information relating to security plans and devices "proposed, adopted, installed, or utilized by a public body" is closed to the public and is not a "public record" under FOIA. The AG explained this language was added by the 2002 South Carolina Homeland Security Act and operates as a mandatory exclusion.

Q: Did the Attorney General flatly rule the photos are secret?
A: No. The AG said it cannot make factual findings, accepted SCDC's account of the photos' security purpose, and concluded that on that basis a court "would likely" uphold withholding them under § 30-4-20(c).

Q: Why do courts defer to prison officials on this?
A: The opinion quotes the U.S. Supreme Court in Pell v. Procunier that security judgments are "peculiarly within the province and professional expertise of corrections officials," and notes courts rarely intervene in prison security or discipline absent extraordinary circumstances.

Background and statutory framework

South Carolina's FOIA (Title 30, Chapter 4) starts from a strong presumption of openness. Its preamble, § 30-4-15, declares that public business should be conducted openly, and the courts have said FOIA is remedial and must be liberally construed, with exceptions read narrowly (New York Times Co. v. Spartanburg Cty. Sch. Dist. No. 7; Campbell v. Marion County Hospital District). The right to inspect or copy a public record comes from § 30-4-30(A)(1).

Against that openness default sit two different kinds of limits. Section 30-4-40 lists discretionary exemptions (things like personal information and attorney work product). Section 30-4-20(c) does something stronger: it removes certain categories from the definition of "public record" entirely, including records required by law to be closed and "information relating to security plans and devices." The South Carolina Supreme Court described this two-track structure in Beattie v. Aiken Dept. of Social Services, and cautioned that even where material is exempt, a body must separate and release the non-exempt portions (Newberry Publ. v. Newberry Co. Comm'n).

The AG had already read the security-plans language broadly in a 2017 opinion covering cybersecurity infrastructure, and federal courts applying South Carolina and federal FOIA law have shielded detention-center surveillance footage and inmate-transport procedures on similar security logic (Flaherty-Ortega v. Horry County; Stahl v. Dept. of Justice). Layering the general rule of judicial deference to corrections officials (Pell v. Procunier) on top, the AG concluded the tablet login photos fit the exclusion.

Citations and references

Statutes:

• S.C. Code Ann. § 30-4-15 (FOIA purpose)
• S.C. Code Ann. § 30-4-20(c) (records excluded from "public record," including security plans and devices)
• S.C. Code Ann. § 30-4-30(A)(1) (right to inspect or copy)
• S.C. Code Ann. § 30-4-40 (discretionary exemptions)
• S.C. Code § 24-9-35 (retention of inmate-death records)
• S.C. Code Ann. § 17-1-40 (expungement statute)

Cases:

• Campbell v. Marion County Hospital District, 354 S.C. 274, 580 S.E.2d 163 (S.C. Ct. App. 2003)
• New York Times Co. v. Spartanburg Cty. Sch. Dist. No. 7, 374 S.C. 307, 649 S.E.2d 28 (S.C. 2007)
• Quality Towing, Inc. v. City of Myrtle Beach, 345 S.C. 156, 547 S.E.2d 862 (S.C. 2001)
• Society of Professional Journalists v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (S.C. 1984)
• Perry v. Bullock, 409 S.C. 137, 761 S.E.2d 251 (S.C. 2014)
• Beattie v. Aiken Dept. of Social Services, 319 S.C. 449, 462 S.E.2d 276 (S.C. 1995)
• Newberry Publ. v. Newberry Co. Comm'n A.D.A., 308 S.C. 352, 417 S.E.2d 870 (S.C. 1992)
• Flaherty-Ortega v. Horry County, 2021 WL 5495362 (D.S.C. 2021) (federal district court)
• Stahl v. Dept. of Justice, 2021 WL 1163154 (E.D.N.Y. 2021) (federal district court)
• Pell v. Procunier, 417 U.S. 817 (1974) (U.S. Supreme Court)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/whether-the-south-carolina-department-of-corrections-is-required-to-release-pursuant-to-the-freedom-of-information-act-photographs-of-inmates-taken-automatically-while-they-are-using-their-scdc-tablets/
• Original PDF: https://www.scag.gov/media/b10bojr5/03347127.pdf

Original opinion text

Alan Wilson
Attorney General

July 26, 2023

Mr. Bryan P. Stirling, Director

South Carolina Department of Corrections
P.O. Box 21787

Columbia, SC 29221-1787

Dear Director Stirling:
You seek an opinion regarding “whether the South Carolina Department of Corrections
(“SCDC”) is required to release, pursuant to the Freedom of Information Act (“FOIA”),
photographs of inmates taken automatically while they are using their SCDC tablets.” As
background information, you provide the following:
. . . eligible inmates in SCDC are now assigned tablets to use for making monitored
telephone calls to their families, taking classes, reading books, subscribing to pre
approved programming, receiving messages from the institution, and other approved
activities. Each inmate is assigned a Personal Identification Number (“PIN”) for

tablet login, which controls their level of tablet applications. However, inmates have
been known to pass off their PINs to other inmates, often resulting in criminal
activity. This is prohibited by policy and is punishable as a disciplinary offense. In
an effort to deter inmates from violating policy and allowing others to use their PINs,
the tablets automatically take a photograph of an inmate when he or she logs on to

the tablet. The tablet also takes periodic photographs of the inmate as the inmate
continues to use the tablet. If a question later arises about an inmate using another
inmate's PIN, SCDC staff can look up the photographs taken by the tablet at the
relevant time to determine who was actually using the tablet.
SCDC has received FOIA requests for inmate tablet session records, which are
generally available under FOIA. Recently, SCDC released inmate photographs along
with the inmate tablet session records. After further review, SCDC now believes that
although the inmate tablet session records themselves are subject to release under
FOIA, the inmate photographs are not subject to release. South Carolina's FOIA
enumerates several matters which are exempt from disclosure pursuant to the Act or

are excluded from the Act's definition of a public record.

One exclusion is under
S.C. Code S.C. Code 30-4-20(c), which states that “[security plans and devices are
specifically excluded from the definition of the term ‘public record.’”

•< ember r C. Dennis Building

«.

posi Office 3o.x i 1549

COLVMEJA, SC 29211-1549

• TELEPHONE ;:.J?-734-397O •

. AC.SJMH E L-G3-253-62S >

Mr. Bryan P. Stirling
Page 2

July 26, 2023

Since the inmate photographs are taken specifically for the purpose of allowing
SCDC to maintain security by ensuring that inmates do not circumvent tablet access
suspensions or restrictions by using another inmate's PIN, SCDC believes that the
inmate photographs qualify as security plans or devices that are excluded from the
definition of a public record and therefore not subject to release under FOIA. I
would appreciate your opinion on whether this interpretation is correct.
Law/Analysis

As we recognized in a recent opinion, South Carolina’s Freedom of Information Act was
designed to require openness in government.
In that opinion, dated May 14, 2021, we
emphasized the following:
A. South Carolina Freedom of Information Act
South Carolina's “Freedom of Information Act requires a public body to disclose
public records that are not exempt pursuant to the Act.” Op. Att'y Gen.. 2014WL
7210767 (S.C.A.G. Dec. 4, 2014). The preamble to the South Carolina Freedom of
Information Act ("FOIA") states:

The General Assembly finds 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 and in the formulation of

public policy. Toward this end, provisions of this chapter 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 to the persons seeking access to public
documents or meetings.
S.C. Code Ann. § 30-4-15 (2007). As our Court of Appeals remarked in Campbell v.

Marion County Hospital District, 354 S.C. 274, 280, 580 S.E.2d 163, 166 (Ct. App.
2003), "[t]he essential purpose of the FOIA is to protect the public from secret
government activity." The Supreme Court, in New York Times Co. v. Spartanburg
Cty. Sch. Dist. No. 7, 374 S.C. 307, 311, 649 S.E.2d 28, 30 (2007), explained:
FOIA is remedial in nature and should be liberally construed to carry out
the purpose mandated by the legislature. Quality Towing, Inc, v. City of
Myrtle Beach, 345 S.C. 156, 161, 547 S.E.2d 862, 864-865 (2001). FOIA
must be construed so as to make it possible for citizens to learn and
report fully the activities of public officials. S.C. Code Ann. § 30-4-15
(Supp.2007).

As such, FOIA must be liberally construed to cany out its broad purpose. Also, the
exceptions to disclosure must be narrowly interpreted. Op. Att'y Gen.. 2006 WL
1574910 (S.C.A.G. May 19, 2006). Consistent with these principles, we have
repeatedly advised, when in doubt, an agency should disclose. Op. Att'y Gen.. 2017

Mr. Bryan P. Stirling
Page 3

July 26, 2023

WL 1368244 (S.C.A.G. Apr. 15, 2017). Thus, all doubt must be resolved in favor of
transparency.

Pursuant to FOIA, “[a] person has a right to inspect, copy, or receive an electronic
transmission of any public record of a public body,” unless it is exempt pursuant to
section 30-4-40 of the South Carolina Code (2007 & Supp. 2020). S.C. Code Ann. §
30-4-30(A)(l) (Supp. 2020). Section 30- 4-20(a) (2007) provides a “public body”
includes “any department of the State.” Because the Department of Corrections (the
“Department”) is a department of the State, it is a public body for purposes of FOIA.
See also Op. Att'y Gen.. 1979 WL 43200 (S.C.A.G. Dec. 6, 1979) (applying FOIA to
the Department).

As a public body, the Department must thus comply with requests for public records

under FOIA. “Public records” include “all books, papers, maps, photographs, cards,
tapes, recordings, or other documentary materials regardless of physical form or
characteristics prepared, owned, used, in the possession of, or retained by a public
body.”

S.C. Code Ann. § 30-4-20(c) (2007). Pursuant to section 24-9-35 of the
South Carolina Code (Supp. 2020), the Jail and Prison Inspection Division of the

Department of Corrections is required to retain a permanent record of deaths and the
circumstances surrounding such deaths of persons incarcerated or in the custody of a
municipal, county, multijurisdictional jail, county prison camp, or state correctional
facility. Accordingly, we believe a list of the inmates who have died in custody and
their causes of death is likely something the Department would possess or maintain
for purposes of FOIA. Further, in requiring such records be kept or maintained, the
Legislature could easily have required they be confidential or not open to disclosure.
Yet, even though section 24-9-35 has been amended on several occasions, the
Legislature did not expressly require such records be confidential.
Section 30-4-20(c) lists records that are not open to the public pursuant to FOIA,
including “[r]ecords such as ... medical records ... and other records- which by law

are required to be closed to the public . . . .” We understand from your letter you are
particularly concerned as to whether information pertaining to inmate deaths is a

medical record which would be closed to the public. Our Supreme Court addressed
the medical record exemption under FOIA in Society of Professional Journalists v,
Sexton. 283 S.C. 563, 566, 324 S.E.2d 313, 314 (1984), finding: “It is true that death

certificates contain a medical certification of the cause of death. However, they are
not medical records in the normal sense but are statements of conclusion by persons
required by law to make such findings after the death of a citizen of the state.”
In Perry v. Bullock, 409 S.C. 13 7, 761 S.E.2d 251 (2014), the Court considered
whether an autopsy report is a medical record exempt from disclosure pursuant to
FOIA. Id. Finding FOIA did not define “medical record,” the Court followed the
rules of statutory interpretation and turned to the normal and customary meaning of

the term. The Court stated: “Merriam-Webster defines a medical record as ‘a record
of a patient's medical information (as medical history, care or treatments received,
test results, diagnoses, and medications taken).’ Merriam-Webster Online,
http://www.merriam-webster.com/medical/medical% 20records. Thus, plainly stated,

Mr. Bryan P. Stirling
Page 4
July 26, 2023

medical records are those records containing medical information.” Id. at 141. 761
S.E.2d at 253. The Court determined an autopsy report falls within the definition of a
medical record, reasoning
the medical information gained from the autopsy and indicated in the

report is not confined to how the decedent died. Instead, an autopsy,
which is performed by a medical doctor, is a thorough and invasive
inquiry into the body of the decedent which reveals extensive medical
information, such as the presence of any diseases or medications and any
evidence of treatments received, regardless of whether that information

pertained to the cause of death.

Id. at 142, 761 S.E.2d at 253 (emphasis added).
The Court in Perry differentiated between autopsy reports and death certificates,
which it previously ruled are not medical records “simply because they contain
medical information.” Id. at 143, 761 S.E.2d at 254 (citing to Society of Professional
Journalists, 283 S.C. at 563, 324 S.E.2d at 313). The Court explained:
A death certificate includes no more than the cause of death, if known. In
contrast an autopsy is a comprehensive medical examination of a body
designed to reveal not only the cause of death, but also the decedent's

general medical condition at the time of death including information
unrelated to the cause of death. This is the type of information that
would necessarily be contained in medical records when a person is
alive.

We decline to allow a person's death to change the nature of the

record into one subject to disclosure under the FOIA.
Id.

Op. S.C. Att’y Gen.. 2021 WL 2181992 (May 14, 2021).

Thus, absent a clear exclusion or

exception, SCDC must “when in doubt, disclose” pursuant to FOIA.

Your specific question deals with that portion of § 30-4-20(c) which provides that
“[i]nformation relating to “security plans and devices” are not “public records” under FOIA.

Such provision states that “[i]nformation relating to security plans and devices proposed,
adopted, installed, or utilized by a public body, other than amounts expended for adoption,
implementation, or installation of these plans and devices, is required to be closed to the public
and is not considered to be made open to the public under the provisions of this act.” This form
of exclusion differs from exemptions under FOIA (§ 30-4-40) in that an exclusion under § 30-420(c) is mandatory.

SCDC deems inmate tablet photographs as subject to § 30-4-20(c) and the

means for maintaining security by “ensuring that inmates do not circumvent tablet access
suspensions or restrictions by using another inmate’s PIN. . . .” We believe a court would likely
defer to SCDC’ s judgment and rationale inasmuch as security measures to ensure that inmates do
not circumvent prison rules and regulations are generally upheld.

Mr. Bryan P. Stirling
Page 5

July 26, 2023

In Op. S.C. Atf y Gen., 2017 WL 6548004 (Dec. 11, 2017), we addressed the “security

plans and devices” exclusion required by § 30-4-20(c). There, it was noted that the language
“was added to § 30-4-20(c) as part of Act 339 of 2002, the ‘South Carolina Homeland Security
Act.’” The question before us in that 2017 opinion was the “scope and application of this
exclusion [“security plans and devices”] as it pertains to cybersecurity matters.” We analyzed
the issue as follows:
[a]s to the present question regarding the meaning of “security plans,” we likewise
examine its normal and customary meaning for guidance on interpreting the

undefined term. Merriam-Webster defines security as:

“b (1): measures taken to guard against espionage or sabotage, crime, attack, or
escape.” Merriam-Webster Online, https://www.merriamwebster.com/dictionary/security; see also Dictionary.com,
http://www.dictionary.com/browse/security (“precautions taken to guard against
crime, attack, sabotage, espionage, etc.”); The American Heritage Dictionary 1233
(3rd ed. 1993) (security defined as “measures adopted by a government to prevent
espionage, sabotage, or attack.”).
Further, Merriam-Webster defines plan as:
“2: a: a method for achieving an end; b: an often customary method of doing
something: procedure; c: a detailed formulation of a program of action; d: goal, aim;

3: an orderly arrangement of parts of an overall design or objective; 4: a detailed
program.” Merriam-Webster Online, https://www.merriamwebster.com/dictionary/plan: see also Dictionary.com,
http://www.dictionary.com/browse/plan?s=t (“a scheme or method of acting, doing,
proceeding, making, etc., developed in advance”). When read in combination, these

definitions suggest the Legislature likely intended for “information relating to
security plans and devices” to mean the methods, procedures, and detailed

formulations proposed, adopted, installed, or utilized to guard against espionage or
sabotage, crime, attack, or escape.
Next, we examine the normal and customary meaning of “cybersecurity” to
determine whether it “fitfs] neatly within that general understanding” of information
relating to security plans. Bullock, supra. Merriam-Webster defines cybersecurity as

“measures taken to protect a computer or computer system (as on the Internet)
against unauthorized access or attack.” Merriam-Webster Online,
https://www.merriam-webster.com/dictionary/cybersecurity;

see
also
Dictionary.com,
http://www.dictionary.com/browse/cybersecurity?s=t
(“precautions taken to guard against crime that involves the Internet, especially
unauthorized access to computer systems and data connected to the Internet.”). The
normal and customaiy meaning of cybersecurity, as stated in the definitions above,
includes the similar element of guarding against attack which is central to the normal
and customary meaning of security plans. Additionally, Sections 9-12 of the South
Carolina Homeland Security Act define “computer crime offenses,” criminal

Mr. Bryan P. Stirling
Page 6

July 26, 2023

penalties, civil remedies, as well as venue for such offenses. Included within the
definitions in Section 9, “computer contaminant” lists “viruses”, “worms”, “Trojans”,
and “Trojan Horses” as being commonly designed to “compromise computer
security.” While no specific link is made between the computer crime offenses in
Sections 9-12 and the exclusion from the public record definition in the S.C. FOIA, it
is a “fair interpretation consonant with the purpose, design, and policy” of the
Legislature that “information relating to security plans” is meant to include
information related to computer security or cybersecurity. State v. Henkel, supra.
Therefore, it is this Office’s opinion that cybersecurity infrastructure information is
included within the broad set of information encompassed by “information relating to
security plans.”

We next address whether the SEC’s proposed method of the exclusion or withholding
of [cybersecurity infrastructure] records in their entirety is permissible under the S.C.
FOIA. It is this Office’s opinion that a court likely would find that the exclusion or
withholding of cybersecurity infrastructure records in response to a S.C. FOIA
request is consistent with the express terms of the act and legislative intent. As the
South Carolina Supreme Court described in Beattie v, Aiken Dept, of Social
Services, 319 S.C. 449, 462 S.E.2d 276 (1995), the right to inspect and copy records

of a public body are limited in two distinct circumstances; when records are
specifically exempted from the FOIA and when records are closed to the public by
law. The Court explained as follows:

FOIA provides the right to inspect or copy any public record of a public
body. S.C. Code Ann. § 3 0^-3 0(a) (Supp.1994). However, the FOIA
enumerates certain exemptions, including information of a personal nature
and work product of legal counsel. S.C. Code Ann. § 30-4-40(a)(2) and
(a)(7) (1991 and Supp.1994). Moreover, those records which are required by

law to be closed to the public are not subject to the FOIA. S.C. Code Ann. §
30-4-20(c) (1991); S.C. Code Ann. § 30-4-40(4) (1991). Notwithstanding,

these exemptions for the FOIA do not provide a blanket prohibition of
disclosure of the entire record containing exempt material. Rather, the

exempt and nonexempt material shall be separated and the nonexempt
material disclosed. See Newberry Publ. v. Newberry Co. Comm'n A.D.A..
308 S.C. 352, 417 S.E.2d 870 (1992).
319 S.C. at 453, 462 S.E.2d at 279 (emphasis added). The Bullock Court’s holding

that autopsy reports are included within the category of records which are closed to
the public because they “are excluded from disclosure under the FOIA as medical
records” would be equally applicable to cybersecurity infrastructure records as
information relating to security plans. 409 S.C. at 144, 761 S.E.2d at 255.

Both

medical records and information relating to security plans are “closed to the public
are not considered to be made open to the public under the provisions of this act.”
S.C. Code Ann. 30-4-20(c).[ ] Indeed, this conclusion is further supported by the title

of the “South Carolina Homeland Security Act” which, again, states the definition of
“public
record”
was
amended
“TO
PROVIDE THAT
INFORMATION
REGARDING THE SECURITY PLAN OF A PUBLIC BODY IS NOT OPEN TO

Mr. Bryan P. Stirling
Page 7

July 26, 2023

THE PUBLIC.” 2002 Act No. 399. Therefore, it is this Office’s opinion that records
which relate to a public body’s cybersecurity infrastructure are not subject to
disclosure under the S.C. FOIA as a public record.

In addition, in Flaherty-Ortega v. Horry County, et al., 2021 WL 5495362 (D.S.C. 2021),
the Magistrate Judge there addressed the issue of whether certain “‘photos and videos at issue

contain clear depictions of the [Horry County] Detention Center itself, . . . and the transport van
at issue’ and are protected from disclosure pursuant to South Carolina’s Freedom of Information
Act (‘FOIA’) . . . and the South Carolina’s expungement statute, S.C. Code Ann. § 17-1-40.”
The surveillance video and photos there ‘“depict[ed] the inside of the Detention Center’s secure

areas.

The argument by the Horry County Sheriffs Office was that the surveillance video and

photos were not “public records” pursuant to § 30-4-20(c).
According to the Magistrate Judge, these videos and photos were immune from release
pursuant to the “common-sense protection these videos are provided by FOIA. ...” Id. at * 3.
Likewise, photos and video of the transport van were not subject to release in accordance with §
304-20(c). In the words of the Magistrate,
Defendants are especially protective regarding information about the security
devices and plans related to the transport of inmates as the transport process
represents the most risk of inmate escapes, given that multiple inmates may

be transported outside the secure perimeter of the Detention Center by only 1
or 2 officers. Just as the videos and photos of the inside of the secure areas

of the Detention Center are not publicly available for the common-sense
protection of the integrity of the security devices depicted within the
Detention Center, so [too] is similar information regarding the secure areas
of the transport vehicles used by HCSO officers. . . .

Id. at * 4.
Flaherty-Ortega rejected Plaintiffs argument that “‘the limited video surveillance from
the decedent’s unit . . . has no relation to ‘security plans and devices. . .

According to the

Magistrate, “HCSO Defendants have sufficiently articulated safety concerns and statutory
protections connected to this category of documents.” (citing Dang by and through Dang v.

Eslinger, 2015 WL 13655675) (“The details of how a jail’s video surveillance system operates is
plainly information that is best kept confidential.”) See also Stahl v. Dept, of Justice, 2021 WL

1163154, at * 5-6 (E.D.N.Y. 2021) (finding that portions of videos documenting procedures for
removing prisoners from their cells, including the types of gear and equipment employed are

exempt from disclosure; “[disclosing this information would enable inmates to circumvent the
procedures, threatening the BOP’s ability to perform them safely. . . .”).
As the United States Supreme Court has noted, judgments regarding prison security “are

peculiarly within the province and professional expertise of corrections officials, and in the
absence of substantial evidence in the record to indicate that the officials have exaggerated their

Mr. Bryan P. Stirling
Page 8

July 26, 2023

response to these considerations, courts should ordinarily defer to their expert judgment in such
matters.” Pell v. Procunier, 417 U.S. 817, 827 (1974). While this Office strongly supports FOIA
and openness in government, and will continue to do so, the issue of prison security is primarily
one for prison officials and we do not question their exercise of judgment unless there is little or

no support for such position. Based upon the information provided, we cannot so conclude.
Conclusion
As we determined in our 2017 opinion, referenced above, “[w]hile the term ‘security
plans’ is not statutorily defined, it is this Office’s opinion that a court would likely find the
common and ordinary meaning of information relating to security plans . . . includes information

pertaining to cybersecurity infrastructure.”
2017).

Op. S.C. Att’y Gen.. 2017 WL 6548004 (Dec. 11,

Based upon the information provided, the materials in question fit this definition.

Moreover, “. . . courts, as a general rule, do not intervene in matters of prison discipline, security,
or safety, except in most extraordinary of circumstances.”
159913, Op. No. 84-106 (August 28, 1984).

Op. S.C. Att’y Gen., 1984 WL

The judicial branch usually deems security

measures designed to prevent circumvention of rules and regulations governing prisons and

correctional institutions as not subject to public disclosure.
While this Office strongly supports FOIA and openness in government, the issue of
prison security is primarily one for prison officials to determine, and we do not question their

exercise ofjudgment unless there is no support for such position.
Here, the SCDC takes the position that “inmate photographs are taken specifically for the
purpose of allowing SCDC to maintain security by ensuring that inmates do not circumvent
tablet access suspensions or restrictions by using another inmate’s PIN. . . .”

Thus, SCDC

contends that “the inmate photographs quality as security plans or devices that are excluded from

the definition of a public record and therefore not subject to release under FOIA.”
Based upon our research, as set forth above, we believe a court would likely defer to
SCDC’s judgment and uphold its conclusion that inmate photographs constitute “security plans
or devices” for purposes of § 30-4-20(c). Moreover, another basis for this is that photographs of
a prisoner in his or her prison cell could be deemed by a court to compromise prison security.
See Flaherty-Ortega, supra [“Just as the videos and photos of the inside of the secure areas of the
Detention Center are not publicly available for the common-sense protection of the integrity of
the security devices depicted within the Detention Center, so [too] is similar information
regarding the secure areas of the transport vehicles used by the HCSO officers. . . .”]. Inasmuch

as our opinion cannot make factual findings, we accept SCDC’s position as governing.

Accordingly, based upon the information presented, we believe a court would likely uphold
SCDC’s position that § 30-4-20(c) deems the material in question not to be a “public record.”

Mr. Bryan P. Stirling
Page 9

July 26, 2023

Sincerely,

/ Robert D. Cook
Solicitor General