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Can S.C.’s FOIA Law Be Strengthened?

A state legislator wants to toughen South Carolina’s loophole-riddled open records law, but a bill he introduced this year to fix those problems has gone nowhere, languishing since being referred to the House Judiciary Committee in mid-January.

Rep. Bill Taylor, R-Aiken, though, is hopeful that once the new legislative session begins in January, there is a chance that his bill could see progress.

“We’ve got a lot of people in the House who have been elected in the last two legislative terms – almost 50 representatives – and many of them are very conservative Republicans,” Taylor said in a recent interview with The Nerve. “We’re all about openness and transparency. If we can use my bill as a vehicle to get some attention, I think we’ll get a lot of people to testify on this.”

Taylor’s bill, H. 3235, creates for the first time in South Carolina a deadline for a public body or official to make records available in response to a request made under the S.C. Freedom of Information Act – as opposed to the current 15-working-day deadline to only confirm or deny whether records are available.

The bill would require that records be furnished for inspection or copying “immediately, but no later than thirty days after the date of the formal request.”

“You have to be reasonable,” said Taylor. “If you’re requesting very complex data, or it’s very data-heavy, then that takes some time; that’s reasonable. But 30 days seems like a reasonable amount of time for a government agency to respond.”

The bill also adds language to the FOIA to rein in fees associated with FOIA requests, stating that records must be provided “at current market value” and that costs are “not to exceed current fair market rates.”

Taylor said he purposely left the specific restrictions in his bill, such as the “current fair market rates” term, undefined in order to encourage other legislators to contribute their own amendments to the bill and build a consensus large enough to get the bill passed. Once legislators begin debating the bill, more specific cost restrictions will be added, he said.

While saying it is acceptable and reasonable for a public body to charge some fees for processing FOIA requests, Taylor said the intent of his bill is to force public officials to comply with the spirit of the FOI law.

“Certainly there are cases where governmental bodies take far too long to respond. . . . And obviously to have an arbitrarily high fee rate, such as, say, charging $10 for a piece of paper, seems a tad too high. That’s not the intent of the law. Good government is responsive government,” Taylor said.

Taylor’s bill has three co-sponsors: Rep. Thomas Young, R-Aiken; Rep. J. Roland Smith, R-Aiken; and Rep. Eric Bikas, R-Pickens.

Taylor prefiled H. 3235 in the House on Dec. 14, and it was referred to the Judiciary Committee the same day. Other than picking up those three co-sponsors, though, the bill has seen zero advancement since January.

Attempts by The Nerve to reach Jim Harrison, R-Richland and chairman of the House Judiciary Committee, for comment on the status of Taylor’s bill were unsuccessful. Rep. James Smith, D-Richland and the Judiciary Committee's 1st Vice Chairman, though, said he hopes to see the bill progress in the coming session.

"I'd probably want to see an amendment or two, to strengthen that 'current market value' term, so there are no ambiguities," said Smith. "But I have no idea why it didn't move forward. I think there's definitely an appetite to find ways to strengthen the state's open records law."

Other States’ FOI Laws

If there is a model open records law in the nation, it may be in Nebraska. Nebraska’s Open Records Law was ranked best in the nation in a 2002 study by Investigative Reporters and Editors, Inc., a professional journalism organization based at the Missouri School of Journalism.

Nebraska law requires that public bodies respond to an FOIA request within four working days. More significantly, if compiling the requested information will take longer than four days, the public body must provide the requestor with an estimate of a specific number of days until all the records are disclosed.

Alan Peterson is a private attorney who has represented the Nebraska press in that state’s courts and legislature since the 1960s. Peterson said that if South Carolina’s FOI provisions were applied in Nebraska, it would be “like asking for a fight” between public bodies and the courts.

“In the majority of cases, the four-day limit is real, and usually it’s even faster than four days,” said Peterson. “Our position here is, the records belong to the public. Government works for the public, not vice versa.”

Peterson said sometimes the costs of requesting open records in his state are too high, too.

“A problem occasionally is that a public agency tries to charge way too much. At most, a copy should be 5 to 6 cents a copy,” said Peterson. “We have a general rule of thumb agreement: It’s not worth fighting over if the cost is up to 25 cents per page. But if it’s 50 cents, we’ll fight it.”

As for search fees, in Nebraska it is illegal to charge any fees incurred in searching for FOIA data.

“The public employees are already being paid – it’s a part of their job,” Peterson said.

Peterson additionally noted that Nebraska’s cost-per-page fee is an objective number set at the beginning of the year by the state. In South Carolina, by contrast, not only are copying costs up to the will of each individual agency or institution, but so are those search fees.

South Carolina is one of only two states singled out for having “notably high fee requests” in a study of FOI laws across states by Sunshine Review, a nonprofit organization based in Virginia that works for state and local government transparency.

Like South Carolina, Georgia’s sunshine law also allows the charging of fees for searching for FOIA records. But Georgia’s time limit for responding to an FOI request is three working days, compared to 15 in South Carolina.

According to Sunshine Review, the national average for maximum response time limits, not including 15 states with no limit, is just over seven working days.

In North Carolina, there is no time limit for responding to an FOI request; the law simply states inspection and examination of records should be permitted “at reasonable times.” However, search fees in North Carolina are applied only for “extensive” requests.

As The Nerve reported Wednesday, it is not unusual for South Carolina public agencies to have standard search fee rates for handling FOI requests. Sometimes these fees are high: The Department of Commerce, for example, charges an hourly search fee of $45.

‘Make Government Conform to the Law’

Rep. Taylor said one of the main problems with South Carolina’s FOI law is a culture of slow compliance or non-compliance within public bodies.

“It really is in some ways a cultural issue,” Taylor said. “Somehow, in the legacy of some of these departments, that timeliness or responsiveness has just never been valued.

“I tend to believe that most people are well-intended, until proven otherwise. The intent of my bill is to make government conform to the law.”

In Nebraska, the state’s attorney general is the main enforcer of the state’s open records law, Peterson said. He said that support is a key reason Nebraska’s law works properly “85 to 90 percent of the time,” emphasizing the importance of all aspects of state government working together to make FOI laws function as they are intended.

“Everybody by now knows the rules. If a public agency is not cooperating, we can sue them, or the attorney general might well sue them,” said Peterson.

Weaknesses in South Carolina’s law aside, the state attorney general here has declined to intervene in any disputes about compliance with the FOIA in recent memory, even though disputes have numbered many.

Peterson said in the 1970s, Nebraska had a very weak FOI law. Reform came when enough state senators, in addition to media groups and citizens, believed that the law was too weak and was being abused.

And that is exactly what Taylor is trying to achieve now in South Carolina, where the state FOIA has not been updated since 2003.

“We have a governor who’s all for transparency,” said Taylor. “This is a citizen issue, and my goal in January is to get it up on the agenda.

“If you have something to hide, shame on you.”

Reach Kumar at (803) 254-4411 or at amit@thenerve.org.

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