Frustrating FOIA

Published Sept. 2018

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

Through South Carolina’s Freedom of Information Act, diligent journalists and others have discovered much revealing information about the actions of state and local government in our state. Things recently revealed through FOIA requests have included Anderson County’s failure to distribute donated bleeding-control trauma kits to schools until two years after the 2016 Townville shooting; questionable spending by Fifth Circuit Solicitor Dan Johnson;documents relating to the V.C. Summer nuclear plant debacle; enforcement of Myrtle Beach’s disorderly conduct offense; and a $225,000 guarantee that Coastal Carolina will pay Norfolk State for a 2019 game.

But many government officials and agencies in South Carolina resist or frustrate FOIA requests.

“Those in power dislike the public nosing around in their business and are forever looking to shield themselves from scrutiny,” Michelle Cottle wrote last year in The Atlantic, when describing a Congressional committee’s attempt to remove documents from public view.

Recent examples abound. USC has not responded to several requests by The State within the statutory 30-day limit. The South Carolina Supreme Court held that the Hilton Head-Bluffton Chamber of Commerce’s budget is not subject to disclosure under FOIA, even though funds are given to the chamber as a contractor to promote area tourism. Instead, the chamber releases summaries of its spending of tax dollars that is so general that it is all but meaningless. Clinton, S.C. has instituted a $3 fee for all FOIA requests. And a Berkeley County recreation referendum was removed from the November ballot after the state attorney general determined that the county council’s vote violated FOIA.

Even revisions to the state’s freedom of information law enacted last year and intended to facilitate easier access to government information have had the unintended consequence of raising the cost of obtaining such records.

But why is there so much resistance to freedom of information within government? One academic study of German government agency employees found that risk-aversion was a major factor in their attitudes towards release of government information: it is safer to withhold information that somehow may end up causing problems than to release it. Professor Alasdair Roberts explains that government officials resist public access to information in order to retain control over government processes and policy. And SCPA attorney Jay Bender attributes it to the state’s history and political culture.

Here in South Carolina, before last year the law allowed for misdemeanor prosecutions of individuals or groups of individuals who improperly withheld government information that was subject to disclosure under FOIA. But there was apparently only one prosecution under this provision, which ended in a not guilty verdict when the government employees testified that they were unaware that their closure of a meeting was illegal.

But the 2017 revisions eliminated the provision allowing for criminal prosecution of FOI violators, replacing it with a provision that allows courts to issue injunctions, impose a civil fine of up to $500 and/or order payment of damages by a public body that “arbitrarily and capriciously” violates FOIA.  But the revisions also added a new provision allowing government agencies or third parties concerned about the release of particular information to seek relief from the courts for “unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests.” In such an action, the court may order the requester to pay damages and the agency’s legal costs.

The only way for the information that government officials seek to withhold from the public to be revealed is for the media and others to keep vigilant watch of government’s activities, and follow up on obscure or summary statements or agenda items that raise questions. This means paying attention to meeting agendas, proposed and adopted administrative rules, and offhand comments that raise more questions than they answer. And it means the willingness to go to court to fight for access to things that government, for whatever reason, would rather not reveal.

Overall, South Carolina has developed a rather broad and strong freedom of information law. And the media have developed a culture of challenging illegitimate government secrecy. But accessibility of government is an essential component of democracy, and is worth the sometimes contentious battle.
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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