House Judiciary Panel Approves Amended Bill on Public Records Access

February 8, 2013

Investigative Reports

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Freedom of Information ActSupporters trumpeted an open-records bill that focuses on making government records more accessible and less expensive for South Carolinians after a House Judiciary panel Thursday approved an amended version of the legislation.

H. 3163, which is sponsored by Rep. Bill Taylor, R-Aiken, shortens the response time for public-records requests to 10 working days, down from 15 business days; sets a 30-day deadline to fill a request in contrast to no deadline now; and requires that records be furnished as the “lowest possible cost to the person requesting the records.”

The bill also requires public bodies to post a schedule of fees on their website.

Although the Special Laws Subcommittee amended part of the bill dealing with copy fees, it remains a strong piece of legislation that the South Carolina Press Association backs fully, said Bill Rogers, SCPA’s executive director.

“Thanks to all those citizens who testified in favor of this improvement in government transparency,” Taylor, who is not a subcommittee member, said in a written statement after the hearing, noting he expects the full Judiciary Committee to vote on it in two weeks.

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

The Policy Council’s plan calls for the elimination of a long-standing loophole in the S.C. Freedom of Information Act that allows state lawmakers to withhold their legislative correspondence from the public. Taylor’s bill does not address the legislative exemption; Taylor has previously said although he supports the exemption, he believes it should be part of stand-alone legislation.

Taylor’s bill creates an “Office of Freedom of Information Act Review” within the S.C. Administrative Law Court, which would handle appeals of open-records requests. Taylor has said the current appeals process in the state’s court system takes too long and is too expensive.

Rep. Jenny Horne, R-Dorchester and chairwoman of the Special Laws Subcommittee, said the FOIA review office would have the authority to determine if an open-records request is “reasonable or overbroad, and determine what a reasonable fee would be in order to process a request.”

Susan Herdina, an attorney for the city of Charlestown, testified at a Jan. 31 subcommittee hearing that the open-records law allows private interests using public documents as a strategy to make money, the (Charleston) Post & Courier reported.

At the same meeting, the newspaper reported that Wagener resident Alberta Wasden testified how the town of Swansea was unreasonable by charging her $10,000 for public documents she requested under the FOIA. Wasden is a citizen reporter for The Nerve.

The subcommittee amended Taylor’s bill by allowing a public body to collect “reasonable fees” based on actual cost of the search, retrieval and redaction of records. The staff cost is based on the hourly salary of the lowest-paid employee who can complete the records request. While the bill accommodates no cost for electronic documents, copies cannot exceed the prevailing commercial rate.

“This is an adoption (of an amendment) on what we heard there (at the hearing one week ago) particularly on what we heard from the City of Charleston city attorney,” Taylor said during the meeting. “This is trying to adjust ourselves to meet their needs, too. And I think it’s very pragmatic.”

Taylor’s bill would increase the criminal penalties for violating the FOIA. Someone guilty of a first-offense misdemeanor would be fined a maximum of $500, up from the current $100 maximum, or jailed up to 30 days. Conviction of a second offense would carry a $1,000 maximum fine, up from $200, or 60 days in jail. Conviction of a third offense would bring a maximum fine of $1,500, up from $300, or 90 days in jail.

Criminal prosecutions under current law are rare, however.

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.