FOIA Reforms Hung Up Again Over Legislative Exemption

April 30, 2013

Investigative Reports

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AccountabilityPatrick Donlon of Irmo didn’t expect a controversy over a $50,000 state grant that the town sought in 2012 for a new park.

After the 74-year-old retiree was informed that the town didn’t have a copy of the grant application, he remained persistent and eventually got it from the S.C. Department of Parks, Recreation and Tourism.

“If the response (by the town of Irmo) can be a refusal to produce a document when one exists, then the law serves no purpose,” Donlon wrote last week in a letter to The Nerve.

Since last year, citizens and some lawmakers have pushed to strengthen the Freedom of Information Act (FOIA) in South Carolina, ranked by the Center for Public Integrity, a nonprofit investigation news organization in Washington, D.C., and several other groups as the worst state in the nation in terms of public access to information.

But the latest bill (H. 3163) to put more teeth in the FOIA likely won’t be passed this year – once again because of a controversial provision that would eliminate an exemption protecting legislators from releasing their correspondence and “working papers” to the public.

Still, the bill’s sponsor, Rep. Bill Taylor, R-Aiken, remains optimistic.

“This is alive and well,” Taylor told The Nerve last week. “You have to take it incrementally. It’s not dead.”

The legislation passed the House Judiciary Committee on Feb. 27, but after several delays on the House floor, it was sent back to the committee on March 20, where it has remained stuck. Wednesday is the deadline for legislation passed by one chamber to be sent to the other chamber.

Taylor said he agreed to recommit the bill to committee to address the concerns about the process that would be adopted to address eliminating the legislative exemption.

The bill will receive more hearings in May, he said, adding he has been assured the House will act on it before the end of the regular session in June.  He said he believes the House will pass the bill, which, if that occurs, would allow the Senate to hold hearings on it early next year.

The Legislature is in the first year of a two-year cycle; any bills not passed this year would start next year where they were left off.

Making public records more accessible and transparent is one of the eight points of a government- reform agenda outlined by the South Carolina Policy Council, The Nerve’s parent organization.

Taylor’s bill would help South Carolinians like Donlon obtain documents faster, cheaper and with specific deadlines. Among other things, the bill would:

  • Shorten the initial response time for public-records requests to 10 working days, down from 15 business days;
  • Set a 30-day deadline to fill a request in contrast to no deadline now;
  • Require that copies of records be furnished at a cost that can’t “exceed the prevailing commercial rate”;
  • Create an “Office of Freedom of Information Act Review” within the S.C. Administrative Law Court to handle appeals of open-records requests. Taylor has said the current appeals process in the state’s court system is too long and expensive; and
  • Establish harsher penalties for violations of the FOIA.

The provision eliminating the legislative exemption was not part of Taylor’s original bill but was added later by the House Judiciary Committee. The legislation bogged down after that was done, as it did during last year’s legislative session.

Rep. Rick Quinn, R-Lexington and a member of the House Judiciary Committee, proposed eliminating the legislative exemption, contending that it is hypocritical for lawmakers to treat themselves differently than other elected officials in the Palmetto State.

“The legislative exemption proved to be the poison pill again,” said Bill Rogers, executive director of the South Carolina Press Association, when contacted Monday by The Nerve.

The Press Association favors elimination of the legislative exemption, but as a separate, stand-alone bill, Rogers said.

“The removal of the legislative exemption has people concerned that we get it right,” Taylor said. “You can’t just say, ‘Get rid of the legislative exemption.’”

Eliminating the legislative exemption has been a political hot potato in the past. When the idea to add that provision to H. 3163 surfaced, some lawmakers suggested it could cost $1 million to archive lawmakers’ electronic correspondence.

“That’s ridiculous,” Rogers said about that estimated cost.

Taylor said discussions about the legislative exemption are about archiving records on devices that did not exist when the state passed the FOIA.

Freshman Rep. Weston Newton, R-Beaufort and a member of the House Judiciary Committee, has joined the push to eliminate the legislative exemption. He said if lawmakers establish proper protocols, archiving records can be done at little cost.

“I believe it (openness) reduces cynicism and mistrust,” said Newton, a former Beaufort County Council member, when contacted Friday by The Nerve. “If it worked there (Beaufort County), it will work in the Legislature.”

Taylor said that besides Quinn and Newton, he will receive assistance from Rep. Jay Lucas, R-Darlington and the House speaker pro tempore, in advancing H. 3163 before the end of the session.

Reforming the FOIA law could emerge in the House floor debate scheduled for today on a controversial House “ethics-reform” bill (H. 3945). The governor-appointed S.C. Commission on Ethics Reform identified eliminating the legislative exemption as one of its recommendations issued in January.

But Taylor said he does not foresee a move to include proposed FOIA reforms in the debate on H. 3945.

“They want to treat this (FOIA reforms) as a separate issue,” he said, noting that passage of  FOIA reforms would be “the caboose” of the ethics-reform “train.”

“The good news is we’ll have a whole year to work on it,” said Rogers.

That’s small comfort to S.C. citizens such as Donlon, though.

“It (FOIA) is a great law, but there’s no teeth in it,” he said.

Olson can be reached at (803) 254-4411 or curt@thenerve.org. Follow him on Twitter @thenerve_curt and @olson_curt. Follow The Nerve on Facebook and on Twitter @thenervesc.