THE STATE OF SOUTH CAROLINA

In The Supreme Court

Herbert P. Wiedemann, Petitioner,

v.

Town of Hilton Head

Island, South Carolina, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Beaufort County

Tom Kemmerlin, Master-in-Equity

Opinion No. 24789

Heard April 21, 1998 - Filed May 18, 1998

AFFIRMED IN PART; REVERSED IN PART,

AND REMANDED. -

Herbert P. Wiedemann, Pro Se, of Hilton Head, for

petitioner.

Curtis L. Coltrane, of Hilton Head Island, for

respondent.

WALLER, A.J.: We granted certiorari to review the Court of Appeals'

opinion in Wiedemann v. Town of Hilton Head, - S.C. , 486 S.E.2d 263

(Ct. App. 1997). We affirm in part, reverse in part, and remand to the

Master-in-Equity.

p.8

FACTS

In December, 1995, the Hilton Head Island Town Council (Council) held

a workshop at the Dataw Island Club (Club),¹ a private residential

community located approximately 45 miles outside the municipal limits of

Hilton Head. The meeting was publicly advertised, and members of the

public were permitted to attend. Wiedemann, a resident of Hilton Head, was

required to pass through a security gate and give his name to a guard in

order to attend the meeting. He was met at the Club by the Assistant Town

Manager and escorted into the meeting where he had to sit on a chair in an

aisle near the entrance.²

Wiedemann brought this declaratory judgment action contending the

meeting was not "open to the public" as required by the South Carolina

Freedom of Information Act (FOIA), S.C. Code Ann. §§ 30-4-10 to 110 (1991

& Supp. 1996). The Master granted Town summary judgment holding that,

in the absence of a statutory prohibition, the local governing body of a

municipality may conduct meetings outside the geographical boundaries of the

county or municipality. The Court of Appeals, construing the "minimal cost

or delay" provision of S.C. Code Ann. § 30-4-15,³ adopted a balancing test

South Carolina Freedom of Information Act.

²We are unpersuaded by Wiedemann's claim that sitting in the aisle at

the back of the room renders the meeting "closed" for FOIA purposes. See

Sovich v. ShaugnesU, 705 A.2d 942 (Pa. 1998) (no violation of Sunshine Act

where members of public were placed in an adjoining facility with speakers

and microphone).

³Section 30-4-15 provides, in pertinent part:

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 .... 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.

p.9

weighing the interests of the public against the government's need to conduct

the meeting at a distant cite. It found the location of the workshop and

procedure for admittance in this case created no undue burden on the public

and, accordingly, affirmed the grant of summary judgment.

ISSUE⁴

Did the Court of Appeals properly adopt a balancing test and, if

so, was summary judgment proper under that test?

DISCUSSION

Wiedemann contends a balancing test is inappropriate as § 30-4-15

prohibits municipalities, under any circumstances, from conducting meetings

outside their limits. We disagree.

There is some authority for the proposition that municipalities are

absolutely forbidden from holding meetings outside their corporate limits. 37

Am.Jur. Mun. Corps. § 54; 56 Am.Jur. 2d Mun. Corps. § 160. We decline to

follow the American Jurisprudence article.⁵

provision to conduct a "public" meeting at a private club, in a gated

residential community. We disagree.

S.C.Code Ann. § 30-4-60 requires every meeting of a public body be

open to the public unless closed pursuant to section 30-4-70(a). Fowler v.

Beasley, 472 S.E.2d 630, 322 S.C. 463 (1996). The purpose of the FOIA is

to protect the public from secret government activity. South Carolina Tax

Comm'n v. Gaston Copper Recycling Corp., 316 S.C. 163, 447 S.E.2d 843

(1994). There is no requirement, in section 30-4-60 or elsewhere in the

FOIA, that meetings of a public body be conducted in a public building. On

the contrary, the only specific requirements are that the meeting be open to

the public and be done at minimal cost or delay. Absent a specific statutory

restriction, we find meetings may be held in locations other than public

buildings. Here, it is undisputed that the public was given notice of and

welcome to attend the meeting. The fact that Wiedemann was required to

give his name to a security guard at the gate of the Dataw Island Country

Club does not violate the open meeting provision.

⁵The only American case specifically adopting this position relies upon

AmJur. See Town of Paradise Valley v. Acker, 411 P.2d 168 (Ariz. 1966).

p.10

Nowhere in the South Carolina FOIA are public bodies required to

conduct public meetings within municipal limits. On the contrary, the only

restriction is that they be conducted with "minimum cost or delay" to the

public. Notably, the Legislature did, in the case of School Boards, require

all meetings be held "at the school district office or at such other place

within the district that the board deems convenient..." S.C. Code Ann. § 59-

1-340. See also 1991 S.C. Op. Atty. Gen. 73, Op. No. 91-24 (1991) (espousing

that in light of express legislative statement in § 59-1-340, that section 30-4-

15 permits public meetings without a municipality's boundaries). We agree

with the Court of Appeals that the fact that the Legislature specifically

required school board meetings to be conducted within district boundaries,

but failed to do so in the case of municipal boards is indicative of its intent

that such meetings may be held outside municipal limits. Accord Atlantic

Skin and Cancer Clinic v. Hallmark General Partners, 320 S.C. 113, 463

S.E.2d 600 (1995) (under maxim of expressio unius est exclusio alterius,

'expression of one thing is exclusion of another'). Accordingly, we affirm the

Court of Appeals' opinion insofar as it held that meetings may be conducted

outside municipal boundaries. Further, we concur with the Court of Appeals

that a balancing test is appropriate to determine whether such a meeting

complies with the "minimum cost or delay" requirements of § 30-4-15.

The Court of Appeals adopted the balancing test espoused by the court

in Rhea v. School Board of Alachua County, 636 So.2d 1383 (Fla. App. 1994).

Under that test, "the interests of the municipality in conducting the meeting

outside the municipal limits [should] be weighed against the cost or delay to

the public." 486 S.E.2d at 267. The Court of Appeals concluded that, as

there was no evidence any members of the public were prevented from

attending the meeting, and since Wiedemann and various reporters had

attended the meeting, its location created no undue burden on the public.

It therefore affirmed the Master's grant of summary judgment. This was

error.

Summary judgment is appropriate when it is clear there is no genuine

issue of material fact and the moving party is entitled to judgment as a

matter of law. City of Columbia v. American Civil Liberties Union, 323 S.C.

384, 475 S.E.2d 747 (1996). In determining whether any triable issue of fact

exists, the evidence and all inferences which can be reasonably drawn

therefrom must be viewed in the light most favorable to the non-moving

party. Summer v. Carpenter, _ S.C. _, 492 S.E.2d 55 (1997).

Here, there are genuine issues of material fact concerning the necessity

p.11

of Town conducting the meeting outside the municipal limits. There is

simply no evidence in the record as to why it was necessary for Tow-n to

conduct the meeting at Dataw Island. Accordingly, on the present record, it

was simply impossible to balance the interests of the Tpwn against those of

the public. Therefore, rather than affirming the grant of summary judgment,

the Court of Appeals should have remanded to the Master for receipt of

further evidence on this issue. Accordingly, the opinion of the Court of

Appeals is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.

p.12