This week a lawsuit filed by Sen. Dick Harpootlian over the Department of Commerce’s refusal to disclose records regarding two corporate incentive deals received a court hearing. During the hearing, Commerce Secretary Bobby Hitt defended the agency’s disclosure policies and stated that Harpootlian was the first to challenge Commerce’s actions in court.
The state’s Freedom of Information Act (FOIA) requires public agencies to turn over information requested by a citizen – with a handful of exceptions, one of which is “trade secrets” and is the loophole Commerce typically uses to shield economic incentive deal details. Another loophole exempts lawmakers’ “memoranda, correspondence, and working papers,” which is routinely used as a blanket exemption from any legislative disclosure obligation under FOIA.
However, some agencies not subject to an exemption will simply refuse to disclose public records, with no consequences. Two years ago, the South Carolina Policy Council, the parent organization of The Nerve, conducted a survey of eleven state agencies to measure the effectiveness of the state’s open records law. The results? Four of the eleven – all education institutions – failed to supply the requested information, and the University of South Carolina failed to even acknowledge the request. The Department of Transportation had charged over $30,000 in fees to comply with FOIA requests over the preceding three years, and the state Senate – based on the legislative exemption – refused to disclose even the number of FOIA requests received.
Between the FOIA loopholes and agencies’ simple unwillingness to comply, citizens interested in the inner workings of state government are not guaranteed access to information about their own state government – unless they have the resources to take public agencies to court.
The purpose of the federal Freedom of Information Act (FOIA), passed in the aftermath of the Watergate scandal, was to make information possessed by government available to the public. Every state has an equivalent law, and any citizen – whether a member of the news media or not – may submit requests for information to any government agency under the federal or state FOIA laws.
Whether and how these agencies reply is often the subject of dispute, however. Every FOIA law includes exemptions, some necessary, some not, and in many cases government agencies simply refuse to comply – with no immediate repercussions.
Disputes over the effectiveness of South Carolina’s FOIA law has been a subject of debate at the Statehouse for several years, and so recently the South Carolina Policy Council submitted the same FOIA request to eleven state agencies.