In the Public Eye

February 26, 2015

Inside Insight

Print Friendly, PDF & Email

ariail in the public eye

SOUTH CAROLINA: WHERE FREEDOM OF
INFORMATION AIN’T VERY FREE

South Carolina’s Freedom of Information Act is weak to the point of anemic. There are essentially two reasons for its weakness. First, state agencies are free to drag their feet indefinitely in order to avoid supplying FOIA requests they don’t want to fulfill. They’re also entitled to charge prohibitive costs for supplying requested information to taxpayers – this despite the fact that nearly all agencies employ Public Information Officers (PIOs) whose job is to – well – supply information to the public. (Too often, agency officials view PIOs as spin doctors whose job is to make the public think happy thoughts about the agency he or she represents, but that is another issue entirely.)

The second reason for the weakness of South Carolina’s open records law is that legislators have carved out a convenient exemption for themselves. Pretending that correspondence between lawmakers and constituents is somehow sacred, like that between doctors and patients or lawyers and clients, lawmakers have essentially exempted themselves from the law. Leave aside the fact that discussions between doctors and their patients and lawyers and their clients don’t have anything to do with changes to laws that affect millions of people. Leave aside, too, the fact that these “constituents” are oftentimes lobbyists, consultants and other lawmakers.

As they have the last couple of years, lawmakers are debating reforms to the state’s Freedom of Information law.

But beware of the details. A bill designed to get rid of the legislative exemption, for example, specifies that correspondence between lawmakers and lobbyists, or between lawmakers and other public officials, will no longer be exempt from FOIA. Sounds great, except that all a lobbyist would have to do is email a lawmaker as a private individual, or get a private individual to send the email, or simply use a pseudonymous email account. In any case, there is already a law requiring the redaction of private information in freedom-of-information disclosures – the creation of new exemptions can only create more loopholes. The bill also exempts “internally created precursors to legislation,” meaning – one may safely presume – documents revealing the influence exercised on lawmakers in the run-up to the passage of a bill or ordinance.

Not much of an exemption when you read the fine print.

Or consider a bill that would crack down on the practice by state agencies of stonewalling FOIA requests. It’s a fine bill – except for a provision empowering agencies to haul you to court if your request for information is “unduly burdensome, overly broad, or otherwise improper.” One lawmaker, having talked to Commerce Secretary Bobby Hitt – the lawmaker, ironically, is a former newspaper managing editor – suggested that some people who submit FOIA requests are going on “fishing expedition[s] looking to see where the incentives are, and who’s doing the deal.” This reform bill, the lawmaker explained, would give agencies “recourse” against “somebody who’s just being annoying.”

So if you’re interested in finding out which multinational corporations your lawmakers are doling out public money to, you can’t. Because that’s just annoying.

Click here to learn more about the weakness of South Carolina’s FOIA law.