MY LAST NERVE: FOIA Bill Would Allow State Agencies to Take You to Court for “Annoying” Them

foia bill


This week House lawmakers passed a bill that would – let’s just state it plainly – make it easier for your government to take you to court for submitting a request under the Freedom of Information Act (FOIA). Of course, that’s not how the bill’s supporters in the legislature would describe the provision. But it’s true.

H.3191 establishes the Office of FOIA Review in the Administrative Law Court. The new panel would hold hearings when individuals or public bodies allege the FOIA law isn’t being properly followed or is being abused. Some of the bill’s provisions would strengthen the state’s current FOIA law: it would cap deposit requirements at 25 percent of the total cost of reproduction of records; the required response time to a FOIA request would be slightly reduced; and pubic bodies would have to make all the documents they’ve produced in the prior six months available online.

But this business about the Office of FOIA Review should have those of us who’ve ever filed a FOIA request worried. The office would hear cases in which a citizen is seeking enforcement of a request that a public body has failed to comply with, as well as cases in which a public body is seeking “relief from unduly burdensome, overly broad, or otherwise improper requests.” This provision was explained by Rep. Bill Taylor (R-Aiken) in November and stemmed from a conversation he had with Secretary of Commerce Bobby Hitt in which Hitt said he receives numerous FOI requests from individuals on “a fishing expedition looking to see where the incentives are, and who’s doing a deal.”

Hitt, according to Rep. Taylor, would “like a little recourse once in a while to be able to slow down somebody who’s just being annoying.” It doesn’t seem to have occurred to Hitt or Taylor that citizens asking government officials which private companies they’re doling out tax dollars to aren’t merely trying to “annoy.” Anyway the House sympathized with Hitt’s complaint, and in its 90-16 vote opened the door for government to take citizens to court for being “annoying.”

Before the bill passed the House Wednesday, Rep. Jonathon Hill (R-Anderson) put up an amendment that would strike the provision allowing agencies to use the FOIA office to get out of fulfilling requests. Rep. Hill noted that the terms “unduly burdensome” and “overly broad” were not defined and allowed too much room for interpretation by the Administrative Law Court.

Which is an excellent point. Under those vague terms, I can almost guarantee that some agencies would take any inconvenient request straight to the FOIA office, just to see if they could get rid of it. In a bit of agreement with Hill, Rep. Todd Rutherford (D-Richland) noted that “most of the time, it’s government stonewalling individuals” but that “unfortunately there are people out there that do want to use FOIA to assault subsections of government.” There ought, then, argued Rutherford, to be some option for these “assaulted” public entities.

What I found to be most interesting was Hill’s response to the need to provide recourse for these entities that may get one too many requests for public information. “We’ve already got harassment laws on the books. Why are we going to create what essentially amounts to a special legal case of harassment in statute for FOIA requests?” Good question. The answer: lawmakers are almost always more concerned to protect public officials, and especially themselves (remember: they’re exempt from FOIA), than to protect common citizens.

In any case, Hill’s amendment was tabled.

This is typical of State House reforms. Instead of just enacting the reform, lawmakers have got to inject little provisions that protect the powerful and afford ways of punishing people who get in their way. Some of the provisions of H.3191 are long overdue. But is it worth giving government agencies the power to haul citizens before a panel just for asking the wrong “annoying” questions? I’m not sure. The purpose of the Freedom of Information Act is to give the public access to information about the government they pay for, and agencies have public information officers precisely in order to supply that information in a timely way. FOIA has nothing to do with punishing citizens or giving agencies new ways to stonewall.

In expressing support for the bill, Rep. Taylor said, “this is the people’s bill. This is an enforcement bill.” I can’t say I agree.

Jamie Murguia is Director of Research at the S.C. Policy Council, The Nerve’s parent organization