S.C. Legislature Uses Secrecy Law to Thwart Records Requests by Grassroots Groups

February 28, 2012

Investigative Reports

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Top SecretGrassroots groups pushing for more accountability and transparency in state government are running into a wall of secrecy in the S.C. General Assembly in trying to obtain legislative communications involving a controversial bill.

Angered over the Senate’s version of a bill that would create a state Department of Administration, a coalition of grassroots groups over the past 10 days has flooded the House and Senate, as well as the Governor’s Office, with hundreds of email requests under the state Freedom of Information Act, according to a spokesman for the initiative.

The requests seek any written communications that would shed light on discussions regarding the bill (H. 3066), “including, but not limited to, letters, memos, faxes and emails” produced since June 1, according to a copy of the FOIA request provided to The Nerve.

As The Nerve reported in December, the Legislature for more than 30 years has shielded itself from releasing documents showing what it does behind the scenes. Lawmakers routinely have used a special exemption they created for themselves in the FOIA – which doesn’t exist for any other state agency – to deny requests for internal communications.

The latest effort involving the grassroots groups apparently is another example of the long-held and often-employed legislative tactic.

In an email obtained last week by The Nerve, House Clerk Charles Reid informed House members that “many” members had recently received the emailed FOIA requests from the grassroots groups, and instructed them that the information sought by the groups is “EXEMPT from FOIA.”

“Thus, the individuals requesting this information do not have a right, under FOIA, to the information, and you are not required to provide this information,” said Reid, an attorney, citing the legislative exemption in state law.

Section 30-4-40(a)(8) of the S.C. Code of Laws exempts lawmakers and their staffs from publicly releasing any “(m)emoranda, correspondence, and working papers” in their possession, though it doesn’t require them to do so.

In his email, Reid further instructs House members to forward the FOIA requests to him if they want him to respond on their behalf, noting they must do it quickly to allow him to respond within a 15-business-day deadline, as required under the law.

Reid also said in his email that lawmakers on their “own accord” can waive the legislative exemption and “provide the information requested to the individuals who sent the e-mails.”

But he made it clear that his office wouldn’t help legislators who chose that option.

“Please note that House staff will not be able to assist you in compiling this information,” Reid said, noting that staff employees do not have “access to your personal files or your e-mail accounts.”

“Also,”  Reid continued, “with 124 members receiving an average 200+ e-mails per day and the system retaining the past 180 days of e-mails(,) we end up with approximately 4.5 million e-mails on the House member e-mail accounts.”

Grassroots Transparency Campaign

In an interview Friday, Harry Kibler, founder of RINO Hunt, told The Nerve that he organized the email FOIA campaign, estimating that more than 300 requests have been sent so far to House and Senate members and the Governor’s Office.

Kibler described RINO (Republican In Name Only) Hunt as a grassroots, statewide group “dedicated to holding elected Republicans accountable to the Republican Party platform.” Besides RINO Hunt members, other grassroots groups, including various Tea Party groups and the South Carolina Campaign for Liberty, joined in the FOIA initiative, he said.

In virtually all of the roughly 40 replies received as of Friday, lawmakers declined to comply with the records requests, Kibler said.

As an example, he provided a Feb. 20 written reply to a resident from Democratic Rep. Boyd Brown of Fairfield County, who cited the legislative exemption and noted that “even if I were not exempt from your request,” he had “no such” written communications regarding the Department of Administration bill.

“Thank you for your continued desire to effectively participate in the political and governmental process in the Palmetto State,” Brown wrote.

Kibler said there are major problems with the Senate version of the Department of Administration bill, which passed the Senate on Feb. 16 after lengthy debate and is scheduled to be taken up again by the House on Wednesday.

“In order for freedom to exist, there has to be separation of power,” Kibler said. “It (the Senate version of H. 3066) doesn’t do enough, and certainly an argument could be made it doesn’t do it at all.”

The Senate version would eliminate the longstanding five-member, quasi-executive, quasi-legislative Budget and Control Board and put a number of administrative functions of state government currently controlled by the BCB under the control of the governor.

But the bill also would create several freestanding, decision-making bodies that would be appointed by both the executive and legislative branches, replicating the power-sharing makeup of the BCB.

Kibler also contended that the Senate version of the bill would give lawmakers the power to award certain state contracts, which he noted is an executive-branch function; and the authority to require private citizens to appear before legislative committees for sworn testimony.

“That power in and of itself can be used for fear and intimidation,” he said.

Kibler said he decided to organize the FOIA campaign after talking with House and Senate members who told him privately that there wasn’t any widespread push by their constituents to support the Senate version of the Department of Administration bill.

“So then I wanted to know who was working against us,” Kibler continued. “The answer is, the leadership of both houses wants to maintain their boot on the throats of South Carolinians. They love their power, and they don’t want to give it up.”

Kibler said he suspects that there are written internal communications supporting his contention.

The FOIA request to lawmakers and the Governor’s Office seeks copies of “all correspondence” since June 1 regarding the “creation of a Department of Administration, dissolution of the Budget and Control Board or any other issues related to restructuring in state government,” according to copy of the request provided by Kibler to The Nerve.

Kibler said he is not aware of any responses so far that specifically reveal public support of the Senate version of H. 3066. He provided The Nerve with a copy of emails between his wife, Norma Kibler, and Sen. Ray Cleary, R-Georgetown, in which Cleary, who voted for the Senate version of H. 3066, noted that he was “not involved deeply with the formulations of this bill but only to the debate and voting the way my constituents would want me to.”

Cleary went on to say that he had considered releasing his “200 plus e-mails per day” to Norma Kibler and “let you sort through them,” though he added that he is “not sure that this would be what me (sic) constituents writing me would wish and since I have no real staff, it would be interesting for you to have to take the time to do it.”

“So for now I guess the answer will be there really is nothing that can be turned over, no written notes and letters and the only info which I received was work product concerning amendments which all the senators received and which I have not kept,” Cleary concluded.

FOIA Bill Battle

Unlike other lawmakers, Rep. Rick Quinn, R-Lexington, says emails and other internal legislative correspondence generally should be a matter of public record.

Quinn, a former board chairman of the South Carolina Policy Council, the parent organization of The Nerve, sponsored an amendment to an FOIA bill (H. 3235), which passed by a 19-2 vote last week in the House Judiciary Committee, that would eliminate the legislative correspondence exemption.

“It’s an exemption the Legislature has given to itself,” Quinn told The Nerve on Friday. “I don’t think we should set ourselves apart from every other public body.”

Quinn’s amendment, however, isn’t supported by Bill Rogers, executive director of the South Carolina Press Association, who wrote in an online bulletin last week to association members that the amendment, “sought by Gov. Nikki Haley, unfortunately adds a political element to a bill seeking simply to improve public access to public documents.”

“We are trying to come up with an anecdote amendment to counter this poison pill,” Rogers wrote.

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

Contacted Friday, Rogers said Quinn’s amendment makes no exceptions for any situations, such as constituents who write to lawmakers about private, personal matters. He said he believes the FOIA bill, sponsored by Rep. Bill Taylor, R-Aiken, would stand a better chance of passing without Quinn’s amendment.

“The legislative exemption should be studied separately in some detail – not just a last-minute addition at a committee meeting,” Rogers said.

Among other things, as The Nerve reported earlier this month, Taylor’s bill would allow public bodies to charge only copy fees for FOIA requests, disallow search fees for requests, and create a deadline for providing the requested information.

Quinn told The Nerve he is considering introducing an amendment to the bill, scheduled to be considered by the full House this week, that would address private, personal matters with eliminating the legislative exemption, though he added he thinks existing law already covers those situations.

He also said contrary to Rogers’ statements last week, Haley’s office did not initiate his amendment, and that he learned only after he offered it in committee that the governor has “taken a position that she would veto” the bill without the amendment.

“The Press Association should be for having more information, not less,” Quinn said of his amendment.

Haley spokesman Rob Godfrey did not respond last week to written questions from The Nerve about Quinn’s amendment.

As for the email FOIA campaign by the grassroots groups, Quinn said he will release any internal correspondence he has about the Department of Administration bill if he receives such a request.

“If you’re doing the people’s business, the people should have access to records,” he said.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.