FOIA Suffers Setbacks in Legislature, Supreme Court

June 30, 2014

Investigative Reports

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By RICK BRUNDRETT

 

Reformers of the Freedom of Information Act in South Carolina – which recently received a flunking grade in a national study on access to public information – are finding few friends in the S.C. Legislature or Supreme Court these days.

In a repeat of the two-year legislative session in 2011-12, a bill proposing major reforms to the FOIA died this year in the General Assembly. In contrast to the 2011-12 session, the legislation didn’t get near as far this session, remaining stuck in committee since March 2013.

Given that the legislative clock ran out this month on passing any reform bill, the process would have to start all over when lawmakers reconvene in January in Columbia.

Meanwhile, on June 18, the S.C. Supreme Court unanimously ruled that public bodies don’t have to issue agendas for regularly scheduled meetings. That means if no agendas are posted in advance, citizens likely won’t find out what their elected leaders are doing or discussing until they show up at the meetings.

“It’s a terrible decision as far as open government in South Carolina,” said Bill Rogers, executive director of the South Carolina Press Association, when contacted Friday by The Nerve. “I’m hoping this will be the straw that breaks the camel’s back, and we get some reform next year.”

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

The law in question (Section 30-4-80 of the S.C. Code of Laws) in the Supreme Court ruling reads: “All public bodies, except as provided in subsections (b) and (c) of this section, must give written public notice of their regular meetings at the beginning of each calendar year. The notice must include the dates, times, and places of such meetings. Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty-four hours prior to such meetings.”

The ruling involving the Saluda County Council hinged on two words – “if any”  – in the last sentence of the section of the law in question.

“In sum, nowhere in FOIA is there a statement that an agenda is required for regularly scheduled meetings,” Acting Associate Justice James Moore wrote for the court. “If the General Assembly wanted to require an agenda for regularly schedule meetings, it could have done with the simple use of the word ‘shall,’ which generally signals a command.”

In a statement on its website, the South Carolina Association of Counties, which, along with the Municipal Association of South Carolina, submitted a friend-of-the-court brief to the Supreme Court opposing the agenda-posting requirement, said of the ruling, “This is a clear victory for home rule, and the freedom of county council to ‘determine its own rules and order of business’ granted in (Section) ‘4-9-110 (of the S.C. Code of Laws).”

A 2012 national study by The Center for Public Integrity, Global Integrity and Public Radio International gave South Carolina an “F” in access to public information; and an overall “F” ranking on its “Corruption Risk Report Card.”

Contacted Sunday by The Nerve, state Rep. Rick Quinn, R-Lexington and a former board chairman of the South Carolina Policy Council, said given the June 18 Supreme Court ruling, he would be willing to propose legislation to clarify the FOIA to require public bodies to publish agendas for regularly scheduled meetings.

“How do you expect to know if they (public bodies) are going to make a big decision if you’re not going to know what they’re meeting about?” Quinn asked.

Ironically, Quinn played a major role in the demise of the FOIA-reform legislation, critics contend, though Quinn disputes that, maintaining his only intent was to make it stronger and hold lawmakers accountable.

A bill sponsored by Rep. Bill Taylor, R-Aiken, bogged down in the Senate in 2012 after a Quinn-authored amendment was added earlier in the House that would have eliminated the exemption in the FOIA for state lawmakers’ “working papers.”

Since its launch in January 2010, The Nerve has repeatedly pointed out that the FOIA allows lawmakers to refuse to release their emails, letters, memos and other working documents, which can keep the public in the dark about what they’re doing. Overhauling the FOIA, including eliminating the legislative exemption, is part of the Policy Council’s eight-point reform agenda, issued in 2012.

Taylor’s bill passed the House on a 101-1 vote in April 2012 after Quinn’s amendment was added. But it languished in the Senate over the next month and died on the Senate floor in the waning days of the regular session after Sen. John Scott, D-Richland, used a procedural move to place it at the bottom of the debate list.

Taylor reintroduced his bill (H. 3163) in last year’s legislative session, though the former television reporter told The Nerve then that although he supported eliminating the legislative exemption, he believed that including that provision in his bill again likely would doom it for a second time.

He likely would say his prediction proved true. Efforts by The Nerve to reach Taylor for this story were unsuccessful.

The bill was referred to the House Judiciary Committee, where Quinn, the committee’s second vice-chairman, proposed amending the legislation to eliminate the legislative exemption. The bill with the Quinn provision made it out committee in February 2013 to the House floor, but in less than a month, it was sent back to the Judiciary Committee, where it remained stuck until the end of this year’s legislative session.

Quinn doesn’t buy the argument that his amendment killed the bill, telling The Nerve, “There wasn’t a single member of the General Assembly who got a constituent email saying to protect their legislative exemption.”

A more likely reason, he said, was that the South Carolina Association of Counties and Municipal Association of South Carolina – powerful lobbying groups on the winning side of the June 18 Supreme Court ruling – didn’t like many of the provisions in the bill and fought the legislation.

Among other things, the House Judiciary Committee’s version of H. 3163 would have shortened the response time for FOIA requests to 10 business days from 15 business days, required public bodies to furnish approved records within 30 days, and capped copying fees at prevailing commercial rates.

Quinn said he strongly believes that lawmakers don’t deserve special treatment when it comes to open-records requests under the FOIA. He compared leaving the legislative exemption-elimination provision out of an FOIA-reform bill to passing an ethics-reform bill without ending lawmakers’ longstanding oversight of themselves.

A compromise version of an ethics-reform bill (H. 3945), which left intact lawmakers’ authority to police themselves for ethical violations, died June 19 in the Senate – in the final moments of this year’s legislative session.

“There ought not to be one standard for members of the General Assembly, and another standard for everybody else,” Quinn said. “Ultimately, we’re not going to get real reform until we treat every elected official the same.”

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