Empowering Public Agencies to Stop Citizen FOIA Requests – Another S.C. First?

March 16, 2015

Investigative Reports

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Freedom of Information ShreddedA House-passed bill allowing South Carolina public agencies to take legal action against citizens who file “unduly burdensome” or “overly broad” open-records requests could be the first law of its kind in the country if enacted, several legal observers say.

“It’s a terrible, terrible idea,” said Adam Marshall, the Jack Nelson-Dow Jones Foundation Legal Fellow at the Reporters Committee for Freedom of the Press, a nonprofit organization in Washington, D.C., when contacted last week by The Nerve. “It gives too much discretion to the agency to employ these measures.”

Under a bill (H. 3191) sponsored by state Rep. Weston Newton, R-Beaufort and an attorney, a public body could seek a hearing before a newly created “Office of Freedom of Information Act Review,” which would be a division of the S.C. Administrative Law Court, to “seek relief from unduly burdensome, overly broad, or otherwise improper requests.”

The terms “unduly burdensome,” “overly broad” or “otherwise improper requests” aren’t defined in the bill. The types of “relief” a public agency could seek against citizens also aren’t specified, though the legislation appears to leave open the possibility of an agency seeking attorney fees and litigation costs if it prevailed.

If the agency didn’t prevail, it could appeal the hearing officer’s decision to the Administrative Law Court, under the bill.

The Nerve last week attempted to contact Newton, who is chairman of the recently created House Legislative Oversight Committee, which will provide oversight of state agencies. Newton returned a call during state budget deliberations in the House, though a Nerve reporter wasn’t available then, but didn’t respond to a follow-up phone message.

The Nerve first reported about the bill’s provision last month after the House voted overwhelmingly to approve the legislation. Rep. Jonathon Hill, R-Anderson, tried to remove that language from the bill, though his motion was tabled. The bill is now before the Senate Judiciary Committee, chaired by Sen. Larry Martin, R-Pickens.

It’s not the first time the Legislature this year has tried to limit citizens’ free-speech rights. A large ethics bill (H. 3722) sponsored by House Speaker Jay Lucas, R-Darlington, would have permitted authorities to seek criminal charges against citizens who “wilfully” filed “groundless” ethics complaints against judges, though that provision was dropped from the bill before the House passed it this month after The Nerve raised questions about the same language in a smaller ethics bill (H. 3184).

Marshall, of the Reporters Committee for Freedom of the Press, told The Nerve last week he wasn’t aware of any state having a law with language similar to Newton’s bill.

“To empower the state to proactively sue these people and require them to hire attorneys – it’s an outrageous response,” he said.

Marshall said a bill was introduced in Washington state in 2013 that would have allowed local agencies to seek court injunctions against citizens filing open-records requests if the agencies, according to the legislation, believed the requests were “made in retaliation” against or created “an undue burden” for the agencies.

That bill never made it out of the Washington State House of Representatives in 2013; it was reintroduced last year but died in committee, Cindy Cobb, a Washington state senior legislative assistant, told The Nerve last week.

In 2012, a Vermont judge blocked a local school district from suing a parent who had made a public-records request to the district. Contacted last week by The Nerve, Dan Barrett, a staff attorney with the American Civil Liberties Union of Vermont, which represented the parent, said, “What we were worried about was that what happened to our client could happen to reporters or other interested citizens.”

“Parents are not able to make policy demands (of school districts) unless they have access to records,” Barrett continued. “For us, it’s democracy. It doesn’t work if you don’t have access to the records.”

Asked about the provision in Newton’s bill allowing public agencies to take legal action against citizens filing FOIA requests, Barrett replied, “It’s a horrible idea,” adding he wasn’t aware of any states having laws with the same language contained in the S.C. legislation.

Barrett said Oregon, Delaware and Kentucky allow public agencies to take legal action involving open-records requests, but only as appeals if the attorney general’s office in those states has sided with citizens after reviewing their requests.

“At the state level, at least, lawsuits by public bodies are very infrequent,” said Kristina Edmunson, spokeswoman for the Oregon Department of Justice, in a written response Thursday to The Nerve.

In Delaware, the only parties that can be involved in an appeal from an open-records determination by the state attorney general’s office are the agency filing the appeal and the state Department of Justice, said department spokesman Carl Kanefsky.

“The person who requested the public record cannot be named since Delaware doesn’t have a provision to bring suit against someone making a request,” he said in a written response Friday to The Nerve.

Delaware law also has “no provision under which a request could be considered ‘unduly burdensome, overly broad, or otherwise improper,’” Kanefsky said.

Contacted last week by The Nerve, Jay Bender, attorney for the South Carolina Press Association, said the provision in Newton’s bill was meant in part to deal with numerous records requests made by S.C. Department of Corrections inmates.

“They have made all these requests that probably lack any merit,” Bender said. He added that “there have been other circumstances where there have been (FOIA) abuses,” noting, as an example, “One guy filed voluminous requests with the (South Carolina) Hunley Commission and never went to pick it up.”

Asked if the bill’s provision could lead to public agencies abusing citizens’ free-speech rights, Bender replied, “If it looks like a public agency is trying to intimidate somebody … I’m hopeful that the Administrative Law Court would not see a suit like that as legitimate.”

“I do see what they’re trying to do with it (the bill’s provision), but it can be abused,” said Bill Rogers, the Press Association’s executive director, when contacted last week by The Nerve.

Still, Rogers said he is “beginning to wonder whether we will get anything out this year,” noting the bill, which passed the House on Feb. 19, has not yet been given a hearing in the Senate Judiciary Committee.

The Nerve is an associate member of the Press Association through the South Carolina Policy Council,The Nerve’s parent organization.

Besides creating the “Office of Freedom of Information Act Review” where open-records disputes can be heard, Newton’s bill also, among other things, would reduce the initial response time to FOIA requests to 10 business days from 15 business days, and generally require that requested records be provided within 30 calendar days of when the request was granted.

It also would limit copy costs to the “prevailing commercial rate” and search fees to the “prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request.”

FOIA-reform bills since 2012 have died following amendments to eliminate the exemption for state lawmakers to withhold their emails, letters and other “working papers” from the public. Since its launch in 2010, The Nerve has repeatedly pointed out the exemption in unsuccessful attempts to obtain certain legislative records under the FOIA.

Newton’s bill would keep the legislative exemption intact.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.