Ruling: State Ethics Agency Director Violated FOIA in ‘Lettergate’

November 3, 2014

Investigative Reports

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Got EthicsState Ethics Commission Director Herb Hayden violated the S.C. Freedom of Information Act by falsely telling a Nerve reporter that a commission letter sent to Gov. Nikki Haley had been destroyed, according to a settlement in a lawsuit against Hayden and the commission.

A consent order in the suit, filed by the South Carolina Public Interest Foundation, a Greenville-based, not-for-profit organization, was approved by Richland County Circuit Judge Alison Lee on Oct. 24, court records show. The agreement was signed by Greenville attorney Jim Carpenter, who represented the foundation and its president, Edward “Ned” Sloan; and Columbia lawyer Christian Stegmaier, who represented the commission and Hayden.

Although the suit centered on Hayden’s responses to FOIA requests by The Nerve, neither The Nerve nor its parent organization, the South Carolina Policy Council, was a party to the suit.

Under the three-page consent order, Lee ruled that Hayden’s assertion to The Nerve that an Aug. 28, 2013, letter from Cathy Hazelwood, the commission’s chief lawyer and deputy director, to Haley had been destroyed was a “falsehood,” and that by “responding with a falsehood, Defendants violated (the) FOIA.”

Lee also ruled that the letter was a public record under the FOIA and awarded the plaintiffs $5,000 in attorney fees, as allowed under state law.

As part of the settlement, Hayden and the commission “maintain this violation was inadvertent and not intentional.” Willful violation of the FOIA is a criminal misdemeanor, punishable by up to 30 days in jail or a maximum $100 fine for a first offense.

The lawsuit, filed in January in Richland County, contended that Hayden and the commission violated the Freedom of Information Act by “responding with a falsehood” to The Nerve about the “destroyed” letter.

The Nerve on Sept. 5, 2013, sent an FOIA request to Hayden for a copy of the August 2013 letter from Hazelwood, which directed Haley, a Republican, to reimburse the state for the costs of travel for her and her campaign staff to attend a fundraising event on June 27, 2013, at a North Carolina resort for a group with ties to GOP N.C. Gov. Pat McCrory.

The State Ethics Commission by law polices ethics violations by elected officials, including the governor, though it has no jurisdiction over state lawmakers. Hayden later overruled Hazelwood about Haley’s North Carolina trip.

Questions about the trip surfaced after media outlets reported that the State Law Enforcement Division, which provides security for Haley, had not revealed initially that she was involved in a traffic accident at the resort involving a state-owned vehicle driven by a SLED agent. Haley was not injured, authorities said.

Hayden in his initial Sept. 26, 2013, email response to The Nerve’s FOIA request said only, “No letter was sent to Governor Haley.”

When The Nerve in a follow-up request on Sept. 27, 2013, pointed out that the FOIA required the release of the letter regardless of whether it was sent to Haley, Hayden in an email response that day said, “The letter was destroyed when the decision was made that it was not necessary.”

After The Nerve on Sept. 30, 2013, requested under the FOIA an electronic copy of the letter, Hayden replied by email that the document was “destroyed, both hard copy and electronic copy.”

“I’m well aware of the requirements of FOIA!” Hayden wrote.

The Nerve, however, on Nov. 27, 2013, obtained, through another FOIA request, an Aug. 28, 2013, email from Hazelwood to Butch Bowers, an attorney for Haley, which contained a scanned, signed copy of the letter. The Nerve initially reported about the existence of the letter in a Dec. 2, 2013, story.

“The letter I mailed is attached,” Hazelwood told Bowers in the email, which was copied to Hayden.

Emails between The Nerve and Hayden, as well as Hazelwood’s email to Bowers and Hazelwood’s signed letter to Haley, were included as exhibits with an earlier motion by Sloan and his organization for summary judgment.

The consent order approved by Lee noted that the signed letter was “unbeknownst to Defendant Hayden,” though Hazelwood’s August 2013 email containing the letter was sent to Hayden in addition to Bowers.

In their initial response to the lawsuit, Hayden and the commission denied violating the FOIA, contending the letter from Hazelwood to Haley was “nothing more than a ‘draft’ and was arguably not a ‘public record’ under the FOIA.” They also said the letter was “never signed nor was it formally transmitted to the governor via the United States Mails.”

Sloan and his organization, in a memorandum of law that accompanied their summary judgment motion, said, “The facts of this case demonstrate that the Defendants falsely denied the existence of a public record, falsely stated the public record had been destroyed, falsely denied that a public record was sent, and falsely denied that a public official signed a public record.”

In 1994, the S.C. Supreme Court ruled that a governmental agency “should not be allowed to stonewall an FOIA request without some penalty for its actions.” Citing that case, Sloan and his organization contended in the memorandum, “A false denial of the existence of a public record and the false report of its destruction are similar to – or even worse than – the stonewalling that Justice (Jean) Toal warned about.”

The consent order approved by Lee noted because Hazelwood’s signed letter was sent to Haley’s attorney, Hayden’s assertions that the letter wasn’t sent and was destroyed were “untrue and/or misleading,” and that “as a result, the Defendants violated (the) FOIA.”

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