FOIA suit against S.C. House Republican Caucus

Published March 2019

SCPA Attorney Jay Bender
By SCPA Attorney Jay Bender

News organizations and associations, The State Media Company, The Post and Courier, Inc., Gannett GP Media, Inc., South Carolina Press Association, South Carolina Broadcasters Association, and the Associated Press, were rejected in their suit to have the Freedom of Information Act (FOIA) applied to the meetings and records of the S.C. House Republican Caucus (Caucus).

Under the FOIA, a public body is defined to include an organization supported in whole or in part by public funds.  Once a determination is made that an entity is a public body, it is subject to the open meeting and open record requirements of the FOIA.  The FOIA authorizes “A citizen of the State” to file suit under the FOIA.

Ordinarily a suit under the FOIA would include as a named plaintiff an individual reporter who had requested records or been denied access to a meeting, but in this instance, the reporter had moved out of state and was no longer a South Carolina citizen.

The Caucus moved to dismiss the suit on grounds that the corporate plaintiffs were not South Carolina “citizens.”  Neither AP nor Gannett is incorporated in South Carolina, so it was conceded that they were not South Carolina citizens.  The other corporations are organized under South Carolina law giving rise to the argument that each is a South Carolina citizen.

The argument for citizenship has its roots in a 19th Century decision by the U.S. Supreme Court that ruled that corporations were “persons” under the U.S. Constitution.  The second prong of the argument was that corporations in other situations are treated as citizens of the states in which they are incorporated.  The circuit court rejected this argument and ruled that only a human being could satisfy the state citizenship requirement to file a suit under the FOIA.

Upon ruling that the South Carolina corporations were not South Carolina citizens for purposes of the FOIA, the court ruled that these corporations lacked “standing” to bring the suit.  Standing is a legal expression indicating that the person or entity with standing has the right to file the suit.

Even though the court ruled that the plaintiffs lacked standing, it decided the case on its merits by ruling that the Caucus was not a public body, but even if it were, a House rule exempted all caucuses from the FOIA.

In reaching its decision that the Caucus was not a public body, the court rejected the notion that receiving institutional support in the form of free rent for office and meeting space, and free telephone and computer equipment and services, the Caucus was being supported in part by public funds.  For one six-month period the Caucus paid rent to the State of South Carolina for the support it received.  Taking the amount paid in rent for that period, the record established that over time the Caucus had received nearly $50,000 in public support.  The determination that the institutional support was insufficient to satisfy the “supported in part” by public funds threshold in the FOIA was contrary to an opinion by the Attorney General that the Caucus had received sufficient support to be considered a public body because there was no dollar threshold which must be met to constitute partial support.

The news organizations have moved to have the court’s order altered or amended to eliminate the decision on the merits, and restrict the court’s ruling to the standing question.  Decisions of the South Carolina Supreme Court and Court of Appeals have held that once a determination is made that a plaintiff lacks standing, the case is to be dismissed.  The Caucus has argued in response to that motion that the court’s ruling was in the alternative.  There is no timetable for a decision on the motion.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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