MY LAST NERVE: Bobby Harrell and the Need for FOIA Reform

September 19, 2014

Inside Insight

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house members only sign 2TOO BAD THE SPEAKER WAS EXEMPT FROM FOIA

Most observers – outside the State House, that is – agree that South Carolina’s Freedom of Information Act needs to be strengthened. That strengthening needs to happen on two fronts. First, state agencies can charge whatever they want when they comply with FOIA requests, meaning they can make it so expensive for the public to request public information that the public gives up. And second, state lawmakers’ exemption from the law should be struck.

Most lawmakers, of course, are not keen to get rid of their FOIA exemption – and, as Rick Brundrett’s story reminded us on Wednesday, they have all sorts of reasons for their opposition. Sen. Brad Hutto, for instance, argues that there’s no problem to address: “Ultimately, all we do is public,” he says. “How we come to a decision may not be totally public, but when we actually vote, it’s on the record.” So the fact that lawmakers vote on the record (a reform Sen. Hutto opposed, by the way) means they shouldn’t have to reveal anything else about their communications with special interest groups.

Others contend it’s just not practicable to subject lawmakers to the open records law. “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,” says Sen. Larry Martin.

Still others imply that striking the legislative exemption would be self-evidently dumb. “Help me find the reasons for changing that,” says Sen. Gerald Malloy. “I have not found a compelling reason for doing that.”

Leaving aside these reasons, if that’s what they are, we shouldn’t have to look any further than the case of suspended and indicted Speaker of the House Bobby Harrell for proof that “memoranda, correspondence, and working papers” of lawmakers and their immediate staff should be available under the Freedom of Information Act.

State law allows campaign funds to be used for “reasonable and necessary travel expenses.” The Speaker hid the nature of his travel from the House Ethics Committee – the legislative entity that offers any advisory opinions on whether travel reimbursements meet those standards. Five counts of the indictment against Harrell indicate the former Speaker claimed the reimbursements were for legislative travel but were actually personal in nature.

Here’s the point. If the speaker – or any other legislator – asked for an advisory opinion from staff attorneys on whether his reimbursements were lawful, the public and media would have no way of finding out. Sure, you can ask. But the legislative exemption – as House clerk Charles Reid has helpfully reminded members – allows lawmakers and even their staff to completely ignore your request. Consider this paragraph, for example, from a 2012 story on The Nerve:

The Nerve last week asked House Ethics Committee attorney Emma Dean if her committee had issued any formal opinions defining “reasonable and necessary” expenses. Dean initially said she would research the request but didn’t provide an answer and never responded to multiple follow-up messages from The Nerve.

So let me help Sen. Malloy find a reason for striking the legislative exemption. How’s this one: The citizens who pay your bills are tired of being ignored.

Jamie Murguia is Director of Research at the S.C. Policy Council