Freelancing FOIA

Published Nov. 2018

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

South Carolina’s Freedom of Information law provides that “[a]ll materials, regardless of form, gathered by a public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying.” As explained in the S.C. Press Association’s Public Official’s Guide to Compliance with the S.C. Freedom of Information Act, this means that public bodies must release “all material relating to no fewer than three final applicants for a public job.”

This principle was reinforced by a 2007 decision of the South Carolina Supreme Court, which rejected a school board’s argument that it could release information about only the individuals considered “finalists” for a position, even if there were less than three such “finalists.” The court held that:

The statutory language requiring disclosure of materials relating to “not fewer than the final three applicants” requires the public body to disclose the final pool of applicants comprised of at least three people. We do not agree with appellant that only those applicants deemed by the agency to be “finalists” are subject to disclosure. According to the plain language of the statute, disclosure is limited to the final pool consisting of not fewer than three applicants.

Despite this clear mandate, in the past several weeks various government bodies have been less than transparent in job searches, releasing less information about applicants than required by law.

In Spartanburg County, the county council initially released information on only two finalists in its search for a new county administrator. The council received 100 applications for the position before narrowing the field down to six, then the two whose information was released. After local newspapers pointed out that the law required release of information for all six candidates who made it to the second round, the council released the information.

The state Department of Health and Environmental Control (DHEC) took a different approach to not release information about candidates for the agency’s director position: it blacked out the log of visitors to its headquarters on the day when the candidates came in for interviews. It is unclear how large the pool of candidates was on Sept. 27, when the interviews occurred. But if those interviewed were finalists, all of their information should have been revealed under the 2007 ruling.

DHEC, for its part, claimed that releasing the visitor logs would infringe the privacy of not just the job candidates, but other visitors to the agency’s offices that day. But the privacy exemption in South Carolina’s Freedom of Information Act is limited to “information of a personal nature,” the disclosure of which would “constitute an unreasonable invasion of personal privacy.” In 2004, the South Carolina Court of Appeals held that the York County Sheriff could withhold on privacy grounds records relating to deputies accused of unprofessional conduct, including sexual activity in patrol cars, only when the records involved their personal sexual activities.

In two other cases, government boards apparently used executive sessions—which are permitted only for personnel (hiring and firing) decisions, and to discuss legal advice with counsel—for other reasons.

When the South Carolina Commission on Higher Education was criticized for raising the salary of its interim director by 54 percent, an e-mail was revealed in which the commission’s chair stated that the decision to offer the interim director the job permanently and to increase his salary had been unanimously approved by the commission during an executive session. But the state’s FOIA law allows certain matters, including personnel issues, to be discussed in executive session, all votes must occur in public. Senate President Pro Tempore Hugh Leatherman also claimed that the raise was illegal because it was not approved by a state panel he chairs that approves salaries for agency chiefs. The raise was rescinded, and the commission chair resigned.

In Beaufort County, an executive session of the Board of Education held to discuss the search for a new superintendent, including the hiring of a search firm, veered into a different topic when the chair criticized board members for leaking the identity of the firm that the board planned to hire. One of the board members objected, saying this was not a proper topic for executive session, and recorded the conversation.

These recent incidents suggest that there may be widespread ignorance—or willful disregard—of the requirements of the state’s freedom of information law. Which is why publications such as the Public Official’s Guide to Compliance with the S.C. Freedom of Information Act are important. But it’s even more important that public officials make themselves aware—or are made aware—of what the FOIA requires. And it’s also important for the state’s media to continue calling these officials to account when—through either ignorance or arrogance—they do “the public’s business” without making decisions in open sessions that actually make them responsible and accessible to the public they serve.

Horry County Update: Last month, publication deadlines allowed only for an editor’s note that Horry County had adopted changes to its littering ordinance to apply to free newspapers and advertising circulars delivered unrequested to individual homes. The new ordinance, which passed unanimously, was first proposed in a different form in 2016, and was revived after homeowners complained about free newspapers earlier this year. The new ordinance bars an organization to deliver an unsolicited item when another similar item has already been deposited at that home and not removed by the property owner. It also bars such deliveries to vacant properties.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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