June 6, 2023

The Nerve

Where Government Gets Exposed

Legislators Exempt Themselves from Sunshine Law They Created

The NerveWhen it comes to releasing public emails and other internal communications, the governor’s office isn’t the only place that likes to play secrecy games.

In fact, for more than 30 years, state law has shielded the S.C. General Assembly from releasing documents showing what it does behind the scenes.

The Nerve got a first taste of the special exemption in early November 2009 when it sent open-records requests to state legislative leaders asking them for all written communications, including emails and text messages, on an incentives bill to bring a Boeing aircraft assembly plant to North Charleston.

The legislation unanimously passed both chambers  less than two weeks earlier in a rare, special session – with little public discussion.

At the time, The Nerve wanted to find out particulars of legislative discussions on the deal, which, according to a later review by The Nerve, is projected to cost taxpayers at least $500 million over 15 years.

A group of senators, including Senate Finance Committee Chairman Hugh Leatherman, R-Florence and a key player in the Boeing deal, never responded to The Nerve’s Nov. 7, 2009, request under the S.C. Freedom of Information Act.

House Clerk Charles Reid did respond on behalf of a group of House leaders involved in the Boeing deal, including House Speaker Bobby Harrell, R-Charleston. But Reid, an attorney, wasn’t in an accommodating mood.

“The House of Representatives, these legislators, and their staff do not have any documents or records, pursuant to the requirements of the Freedom of Information Act, to provide you,” Reid said in his Nov. 19, 2009, written reply.

“Furthermore,” Reid continued in his letter, “to the extent that these legislators and their staffs might possibly possess any documents or records responsive to your request, these documents and records are exempt from disclosure pursuant to Section 30-4-40(a)(8) and (9) of the Freedom of Information Act.”

Section 30-4-40(a) (9) exempts public bodies from disclosing written communications or other internal documents relating to efforts to “attract business or industry to invest within South Carolina.” Incentives agreements, once finalized, are not exempt, however.

Section 30-4-40(a) (8) is more broad, exempting state lawmakers and their staffs from publicly releasing any “(m)emoranda, correspondence, and working papers” in their possession.

That section of the law allows legislators to keep the public in the dark about many things they are doing while on the taxpayer’s dime.

It’s a special provision that doesn’t apply to other state agencies, including Gov. Nikki Haley’s office, which, despite not having the statutory protection, made news last month when The State newspaper revealed that emails to and from her office were being routinely deleted.

“It’s not surprising that those who write the laws wouldn’t want to subject themselves to it, or would carve out special exemptions for themselves,” Mark Caramanica, Freedom of Information director with the Reporters Committee for Freedom of the Press (RCFP), a nonprofit journalism organization based in Arlington, Va., told The Nerve when contacted recently.

Caramanica, an attorney, said that about half of the states have “some access built in for legislative records,” though it varies considerably by state.

Georgia’s open-records law, for example, has been held “inapplicable” to that state’s General Assembly because, according to a Georgia court case cited on the RCFP website, the Georgia Legislature “historically exercised the authority to adopt its own internal operating procedures” and adopted procedures “inconsistent” with the opens-records law.

Initially, the ”modern” version of South Carolina’s Freedom of Information Act, which went into effect in 1978, didn’t contain the internal-records exemption for the General Assembly. But lawmakers in 1980 amended the law to exempt themselves, records show.

The law requires the General Assembly to publicly release “source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information under the provisions of this chapter and not specifically exempted by any other provisions of this chapter.”

The Nerve, for example, obtained salary and other expense information for lawmakers under the Freedom of Information Act, which resulted in in-depth stories this year and last.

But  legislative records subject to disclosure under the  Freedom of Information Act generally don’t include internal communications, such as emails or text messages, that are in lawmakers’ possession, said Jay Bender, an attorney for the South Carolina Press Association.  The Nerve’s parent organization, the South Carolina Policy Council, is an associate member of the Press Association.

“Nobody has worked on getting it (the law) changed because as a practical matter, you’re not going to have a majority (of the General Assembly) supporting change,” Bender said.

Bender said that despite the exemption carved out by lawmakers for themselves, emails or other internal communications to or from them on their public accounts that are in the possession of other public agencies generally have to be released when requested under the Freedom of Information Act.

That would include lawmakers’ emails in the possession of the governor’s office, for example. Haley’s office, however, has said it has a policy of deleting emails to and from the office, except for messages between the governor and members of the general public, according to a story in The Statenewspaper.

In its Nov. 20 story, The State reported that it had requested all of Haley’s emails dating back to her first day in office in January, but the paper received no emails prior to Oct. 3. The paper noted that it did not request the thousands of emails between Haley and the general public, which Haley’s office said it had not deleted.

Given a likely steady stream of communication between the governor’s office and various members of the General Assembly – especially when the Legislature is in session – that means lawmakers will have even more assurances that their behind-the-scenes dealings will remain secret.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.

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