Legislative Correspondence Likely to Remain Secret

September 17, 2014

Investigative Reports

Print Friendly, PDF & Email

Top SecretThere doesn’t seem to be much interest right now among S.C. legislators to eliminate a special protection for them in the state’s open-records law.

The Nerve interviewed four of five members of a special Senate Judiciary study committee that met Tuesday to discuss possible changes to the S.C. Freedom of Information Act. The members of the committee include Sens. Larry Martin, R-Pickens and the study committee and full Judiciary Committee chairman; Chip Campsen, R-Charleston; Brad Hutto, D-Orangeburg; Gerald Malloy, D-Darlington; and Shane Massey, R-Edgefield.

Under the FOIA (Section 30-4-40 (a) (g) of the S.C. Code of Laws), lawmakers and their “immediate staffs” are exempt from publicly releasing “(m)emoranda, correspondence, and working papers” in their possession.

The legislative exemption was not on Tuesday’s meeting agenda, which dealt largely with two state Supreme Court rulings this year making autopsy reports confidential and allowing public bodies to hold regularly scheduled meetings without publishing agendas in advance.

Critics say that legislative exemption thwarts transparency by preventing the public from knowing who is trying to influence legislators. But Martin and Hutto expressed strong reservations about repealing the exemption when interviewed Tuesday by The Nerve.

“Ultimately, all we do is public,” said Hutto. “How we come to a decision may not be totally public, but when we actually vote, it’s on the record.”

Hutto, an attorney, said he doesn’t believe correspondence between him and constituents on “sensitive matters dealing with governmental agencies” should be made public. Asked whether correspondence between him and state agencies dealing with bills or other policy matters should be made public, he responded, “It’s publicly available,” noting anyone can submit an FOIA request to a public agency for correspondence between a legislator and the agency.

Hutto, who didn’t attend Tuesday’s meeting but was contacted afterward, also said he doesn’t have the staff to respond to numerous FOIA requests – a point echoed by Martin.

“We would have to have a whole different staff over here to deal with those requests, plus it would completely change the way we deal with constituents,” Martin said, adding if emails from constituents were made public, “I doubt very seriously we would hear from them very much.”

As for letting the public see his emails or other correspondence on bills or other policy matters, Martin replied, “Everything I do in interacting with agencies and committees and on the (Senate) floor is open to the public.”

Like Hutto and Martin, Malloy cited the issue of protecting constituents’ privacy, noting that some constituents bring up personal matters and need help dealing with a state or federal agency, while others ask for information about a bill or law but are not trying to influence his vote.

Malloy, a lawyer, also told The Nerve that in his legislative experience, he has been more persuaded by those who shared their views in public subcommittee or committee meetings as opposed to those who sent him emails or other correspondence; and that special-interest groups typically make their positions on bills publicly known.

“Help me find the reasons for changing that (the legislative exemption),” he said. “I have not found a compelling reason for doing that.”

Massey, an attorney, told The Nerve he doesn’t favor a complete repeal of the exemption, saying there are “legitimate reasons to protect” certain information, citing as an example written advice to him from a staff attorney.

“But there’s probably a whole host of other information we can release,” he added, noting he released upon request his legislative emails on a government restructuring bill.

The Nerve left a phone message Tuesday for Campsen but did not receive a response.

The Nerve first reported about the legislative exemption with its launch in January 2010. At the time, The Nerve wanted to learn what certain powerful lawmakers, including now-Senate President Pro Tempore Hugh Leatherman, R-Florence, and now-suspended and indicted House Speaker Bobby Harrell, R-Charleston, were doing behind the scenes in connection with incentives deals for the Boeing plant in North Charleston, which The Nerve estimated would cost taxpayers at least a half-billion dollars.

Every FOIA request for the lawmakers’ emails and other written correspondence was denied, with the legislative exemption cited as a main reason for the denial.

Interestingly, though, the open-records law does not specifically require that lawmakers withhold their correspondence. The FOIA section dealing with exemptions states in the beginning, “A public body may but is not required to exempt from disclosure the following information: …”

A House bill (H. 3163) introduced during last year’s legislative session that proposed major reforms to the FOIA remained stuck in committee for much of last year and all of this year’s session after Rep. Rick Quinn, R-Lexington and former board chairman of the South Carolina Policy Council – The Nerve’sparent organization – pushed an amendment to eliminate the legislative exemption.

Critics claimed Quinn’s amendment was the “poison pill” that killed the bill. Quinn denied the accusation, telling The Nerve earlier this year his main intent was to make the bill stronger, and that the more likely reason for the bill’s demise was opposition to other provisions by two powerful lobbying groups – the South Carolina Association of Counties and Municipal Association of South Carolina.

Asked Tuesday if he believed whether including the repeal of the legislative exemption in any FOIA-reform bill next year would be a “poison pill,” Martin replied, “Oh, it is.”

Bill Rogers, executive director of the South Carolina Press Association, told The Nerve after Tuesday’s meeting that Rep. Bill Taylor, R-Aiken and the main sponsor of H. 3163 last year, and Rep. Weston Newton, R-Beaufort, informed his group in a recent meeting that they have “plans to move forward” next year with FOIA-reform legislation.

Rogers said while he supports the repeal of the legislative exemption, he believes it should be addressed in stand-alone legislation to avoid the problems that occurred in the last two-year legislative cycle.

“The bigger problem that exists is the shadow government in non-government emails,” Rogers said, noting that lawmakers and other public officials routinely use private email accounts to conduct public business.

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

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