Watchdog Group Seeks Quick Ruling on ‘Lettergate’

September 1, 2014

Investigative Reports

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Burning PaperA Greenville-based government watchdog organization is asking a judge to declare – without a trial – that the State Ethics Commission violated South Carolina’s open-records law, contending the agency’s longtime director falsely claimed that a letter requested by The Nerve had been destroyed.

The South Carolina Public Interest Foundation and its president, Edward “Ned” Sloan, filed a motion last month for summary judgment against the commission and Herb Hayden, the agency’s director, Richland County Circuit Court records show. The defendants had not filed a response to the motion as of Friday.

Summary judgment is a pre-verdict ruling in a civil case, issued by a court in response to a motion by either the plaintiff or defendant, who contends that the absence of a factual dispute on one or more issues in the case eliminates the need for a trial, according to legal dictionaries.

The summary judgment motion, prepared by Greenville attorney Jim Carpenter, asks the court to:

  • Declare that by responding with a “false or misleading statement,” the defendants violated the S.C. Freedom of Information Act;
  • Award the plaintiffs attorney’s fees and costs as allowed under state law; and
  • Grant the plaintiffs “such other and further relief as the Court deems just and proper.”

A lawsuit filed in January contends 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 last Sept. 5 sent an FOIA request to Hayden for a copy of an Aug. 28, 2013, letter written by Cathy Hazelwood, the commission’s chief lawyer and deputy director, to Gov. Nikki Haley. Hazelwood in the letter 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.

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.”

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, are included as exhibits with the plaintiffs’ summary judgment motion.

In their official 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.”

But 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.”

“Accordingly, by these false statements, Defendants have violated the policies supporting FOIA, and these false statements must be deemed a violation of the Act,” the plaintiffs said, noting that under the FOIA, a public body “must give the ‘determination and the reasons therefor’ the first time, within 15 business days; it is not entitled to a second or third bite at the apple.”

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 contend 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.”

“In enacting the Freedom of Information Act, surely the General Assembly implied that FOIA reports must be truthful and accurate,” the plaintiffs said.

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