Commerce, DMV: Information is Power, and It’ll Cost You, Too

October 19, 2011

Investigative Reports

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The NerveLoose enforcement mechanisms in South Carolina’s Freedom of Information Act have allowed the state Department of Commerce to wait dozens of days and charge hundreds of dollars in response to requests to release public records, a review by The Nerve has found.

South Carolina’s FOI law gives public officials far more business days to respond to an FOIA request than in 29 other states; and, unlike 14 other states’ laws, allows public bodies to charge the public for searching for requested public records.

Also unlike other states, South Carolina’s law only specifies a maximum time limit in which a public body can either say it does or does not have the records – there is no time limit for actually supplying an FOIA requestor with hard data.

And what may be most troubling, say leading FOI specialists in the state, is that the lack of enforcement mechanisms in the law and the culture of public disclosure in South Carolina create a situation in which public officials unquestionably obstruct the public’s right to information.

“There are people in positions of authority in public bodies that resent the notion that a mere citizen would question the public record and demand the right to inspect a public record,” says Jay Bender, a professor of media law at the University of South Carolina and the Reid H. Montgomery FOI Chair in USC’s journalism school.

“I’d give the law a ‘D,’” says Patricia O’Connor, journalist/media executive in residence at Coastal Carolina University. “There’s nothing in the law that actually compels the government to give you the records.”

A review by The Nerve of the number of FOIA requests received by seven state agencies over the past year and the average costs charged and time taken to fulfill those requests found that different agencies deal with requests at different speeds and costs.

While most of the agencies surveyed responded to FOIA requests reasonably quickly and with minimal costs, many of the FOIA requests concerning Commerce involved unusually high waiting periods and fees.

Waiting Months to Receive Public Records

Between Aug. 1, 2010, and Aug. 31, 2011, Commerce received a total of 85 FOIA requests and made records available for 44 of those requests; in its data, Commerce made a point of noting that 50 of those 85 requests, or 59 percent, were made by The Nerve.  The average cost per each FOIA request for which records were available was $61.82, and the average response time was 13.38 working days.

Those averages, though, don’t tell the full story.

South Carolina’s FOI law requires that public bodies respond to an FOIA request – saying that the requested public records are available, are not available, or are exempt from disclosure – within 15 working days of receiving the request.

Between Aug. 1, 2010, and Aug. 31, 2011, there were 21 instances in which such a response from Commerce took the maximum 15 days; two instances in which response took 17 days; and one instance each of responses that took 19 and 20 days.

Moreover, for FOIA requests for which records were available, there was a noticeable gap between the time the FOIA request was received by Commerce and the time the records were made available, as opposed to just getting a “yes-or-no” response. Some of the most egregious examples: wait times of 88, 86, 80, 80, 70, 60 and 52 working days between the time a FOIA request was received and the time it was actually fulfilled.

“I can’t speak specifically to what Commerce is doing, but there are many public bodies that do string people out just to keep them from getting records,” said media law professor Bender. “Another possibility is incompetence.

“If the information is readily available, then that (the 80-day disclosure times) could possibly run afoul of the law. If it’s taking that long, then it’s basically a de-facto rejection.”

In response to questions from The Nerve about Commerce’s lengthy wait times, Karen Manning, the department’s chief legal counsel, said that in contrast to other state agencies, many of the broadest requests Commerce receives require follow-up contact with companies prior to full disclosure. Examples include requests for state incentives agreements with Amazon.com and AQT Solar.

“Please note that we have never had a complaint about a response not being timely,” said Manning. “The Department of Commerce endeavors to comply with the law at all times and has an excellent track record in that regard.”

The Nerve, however, has made multiple direct complaints to Manning over the past year about slow response times to FOIA requests for incentives agreements.

The reason that such long wait periods are even possible is that South Carolina’s FOI law has no maximum time limit for how long a public body can wait to actually disclose public records. And that, says Coastal Carolina’s O’Connor, is a problem.

“There are plenty of government agencies in this state that wait all the way up to that 15 day period, and even then you’ll just get a response saying, ‘Your request is so broad that we’re going to request $5,000, to set an example,’ or just, ‘We’re in the process of filing your request,’” said O’Connor.

“You spend a lot of time waiting around for records that have already been paid for by taxpayers.”

‘Reasonable’ Fees in the Hundreds of Dollars

In addition to instances of unusually high turnaround times, The Nerve’s review found that Commerce charged fees for FOIA requests that were significantly higher than fees charged by other state agencies.

For The Nerve’s review of an entire year of FOIA requests received by Commerce, six of the FOIA requests which Commerce fulfilled required fees of more than $150, including individual charges of $590, $500, $337.50, $335.41, $270, and $187.25.

The agency’s policy, as cited in responses to various FOIA requests from The Nerve, is to charge $45 in hourly search fees and 25 cents per page for copies for any FOIA request.

Unlike many other states in the nation, South Carolina’s FOIA law allows public bodies to charge FOIA requesters for the time spent searching for requested records. For example, North Carolina’s law only allows the charging of search fees for “extensive” requests, but not for most standard requests.

The South Carolina FOI law stipulates that any fees collected are “not to exceed the actual cost of searching for or making copies of records” and/or a “reasonable hourly rate for making records available.” But, state agencies often interpret “actual cost” and “reasonable” quite broadly, O’Connor said.

“A copy at Kinko’s costs 9 cents, there’s no way copying costs are $25 an hour or $500,” said O’Connor. “When I was an editor at The (Myrtle Beach) Sun News, they used search fees as a profit center for the city, to raise funds for Myrtle Beach.”

“I think Commerce would have to justify that $45-an-hour figure. The law says costs are not to exceed the actual costs of making the data available,” said Bender. “If you have an employee making $10 an hour, but you assume 100 percent of his salary to include benefits, retirement, vacation, etc., then that $10 becomes $36 an hour.

“On its face, the $45 an hour just seems arbitrary.”

Commerce’s Manning said in an email in response to questions from The Nerve that the department’s rates were established after contacting other state agencies and consulting their rates.

“The costs are justifiable and rarely, if ever, offset the actual cost of responding to FOIA requests,” she said.

Besides high costs charged by Commerce, there was a large discrepancy between the time an FOIA requester paid the fees charged by Commerce, and the time Commerce actually disclosed the data.

For example, for an FOIA request that Commerce received from The Nerve on Dec. 9, the requestor paid the fee on Jan. 13; however, Commerce still did not disclose the data until April 22.

From Aug. 1, 2010, to Aug. 31, 2011, there were seven instances in which the gap between when a request was paid for and when it was fulfilled numbered more than 45 working days, including five instances of over 60 working days each.

A Search Fee of $110 an Hour

Commerce is not the only state agency charging high fees to fulfill some FOIA requests. The Nerve’s review found, for example, that the S.C. Department of Motor Vehicles, according to its policy, charges $110 per hour for processing certain FOIA requests that require special programming.

DMV spokeswoman Beth Parks said that “by far the majority” of requests that come to the DMV are fulfilled for free or for a flat fee of $6, because the information is readily available. But a more complicated request, such as requesting the number of white Chevy pickup trucks in Richland County, would cost $110 per hour spent compiling the information, she said.

“And that $110 figure is probably too low,” said Parks. “We’ve got to pay the programmers their salary and benefits. And then another factor is the time we take away from the assignments that are the DMV’s number-one priority, and it usually takes more than one programmer.”

However, Mark Caramanica, FOI chair for the Reporter’s Committee for Freedom of the Press, says the intent of open records laws is that searches for information should not be carried out by high-level employees, and search fee rates should reflect that.

“This is routine, ministerial work,” said Caramanica. “If you’re charging executive-level fees for doing the searching, that’s not actual cost – that’s running against the spirit of the law. At the federal level, there are regulations against that.”

Comparing Responses Across State Agencies

Besides Commerce and DMV, The Nerve reviewed FOIA data from five other state agencies: the Governor’s Office and the Departments of Health and Human Services; Labor, Licensing and Regulation; Public Safety; and Transportation.

For all seven agencies, The Nerve requested FOIA data from Aug. 1, 2010, to Aug. 31, 2011. Each agency provided a different amount of data, from data covering only a two-month period to data covering the entire 13-month period requested. If data for only a partial period was provided, that is noted below.

The review found much variance in the data, with some agencies receiving only a few dozen FOIA requests and others receiving more than 1,000 requests.

Following are the review’s findings, organized in descending order by the number of FOIA requests received by the agency:

  • Public Safety: DPS received 2,010 FOIA requests. Average turnaround time to “complete” the request, in the department’s words, was 12.21 days; average cost per request was $9.37. Data on individual FOIA costs or turnaround times were not provided.
  • Labor, Licensing, and Regulation: LLR received 715 FOIA requests. Average turnaround time to respond to a request was 13.80 working days; average cost per request was $2.80. The largest turnaround time for data to be fully disclosed was 201 business days (that request is still open), and the highest cost charged was $147.
  • Transportation: DOT received 483 FOIA requests. Average cost per FOIA request was $22.46. Data on individual FOIA costs or on turnaround times were not provided.
  • DMV: From July 2010 to June 2011, DMV received 89 FOIA requests. Exact turnaround times and costs per each FOIA request were not provided, but spokeswoman Parks said the majority of requests are fulfilled for free or for a flat fee of $6, and many are fulfilled within 24 hours. Parks said complex requests that require programming are billed at $110 per hour and usually take one to four weeks to fulfill.
  • Commerce: Commerce received 85 FOIA requests. Average turnaround time to respond to a request was 13.38 working days; average cost per request was $61.82. The largest turnaround time for data to be fully disclosed was 88 working days, and the highest cost charged was $590.
  • Governor’s Office: From Jan. 1, 2011, to Aug. 31, 2011, the Governor’s Office received 44 FOIA requests. Rob Godfrey, spokesman for Gov. Nikki Haley, said in an email to The Nerve that most requests are fulfilled within 24 hours, and that the office has not charged any search fees for any of this year’s 44 requests; only a copy fee of 10 cents “per copy of the final packet of records” is applied. Data on individual FOIA requests were not provided.
  • Health and Human Services: From Aug. 1, 2010, to Sept. 31, 2010, HHS received 18 FOIA requests. Average turnaround time to respond to the request was 9.72 working days; average cost per request was $36.51. The largest turnaround time for data to be fully disclosed was 33 working days, and the highest cost charged was $180.35.

‘A Cultural Issue’

As far as the high costs and wait times go, Bender says there is an issue with FOI in South Carolina, and it is not with the law itself. The problem lies in the culture of non-compliance among some public officials, he says.

“The South Carolina Press Association does studies every few years, and recently we found that only 60 percent of law enforcement is compliant with FOI law. That’s a failing grade,” said Bender. “It’s a cultural issue. When you get stonewalled in your request to see the finances of the governor’s recent Paris Air Show, for example – that demonstrates a political culture of arrogance and of ignorance that we are a democracy.”

The Nerve previously reported that Commerce took nearly three months to fulfill an FOIA request regarding the governor’s Paris Air Show, and that Commerce originally requested a fee of $765 to fulfill the request. The fee was reduced to $270 when the amount of requested data was reduced, and finally Commerce said they would refund the entire fee because other media organizations also requested the data.

“You can make a law as tough as you want,” said Bender, “but unless the culture promotes adherence to the law, it’s not going to do anything. If you strengthened the litter law to a felony offense in South Carolina, would that stop people from throwing litter out of their car at a stop sign?  No, not unless there was a cop sitting there waiting and watching for that to happen.”

Maybe, then, South Carolina needs a cop sitting and watching just how much time and just how much money state agencies are taking to fulfill requests to provide the public with public records.

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