Lessons Not Learned
Published October 2020
Within the past few weeks, there have been a number of examples of government bodies and officials ignoring the open records and open meeting requirements of South Carolina’s Freedom of Information Act, and in some of these cases seeing consequences as a result.
Unfortunately, these latest incidents are part of a pattern of misinterpreting or ignoring the requirements of the law that has continued even after changes to clarify and reinforce FOIA were passed in 2015. More amendments in 2017 expanded the law to explicitly cover electronic records.
With these amendments, the statute is clear: public bodies—including any entity funded in whole or in part by public funds—must announce meetings and their agendas in advance (and can add last-minute items only under exigent circumstances); must hold substantial policy discussions and make decisions at public meetings; and must make the minutes of meetings and other records public.
Yet on Oct. 9 Circuit Court Judge Jocelyn Newman held that the Richland County Council’s 2018 decision to give a fired county administrator an almost $1 million settlement was invalid because the settlement was not included in the agenda of the meeting where the council voted to approve the settlement, and because most of the discussion occurred in a non-public session, with only the final approval vote in public.
In her ruling, Newman wrote that “[w]hile FOIA does not require public discussion of such details [regarding the settlement, the lack of discussion on such a complex topic (coupled with the chair’s slip of the tongue that the matter had already been accepted and approved) indicates that the public vote was simply a ratification of a private vote.”
Similar questions arose over a decision by the board of the Regional Medical Center in Orangeburg to not renew the contract of hospital President and CEO Charles Williams when it expires in December. The board responded that it had given proper public notice of the meeting, but that “the entirety of meeting, except for the final vote, was conducted in executive session.”
Meanwhile, the Spartanburg City Council debated a resolution to apologize for past racism in private meetings, rather than in public sessions, before ultimately enacting the measure unanimously at a public meeting on Sept. 28, without any apparent debate.
In addition to the public meeting requirements, public bodies must respond to a written FOIA request within 10 business days unless the requested record is more than 24 months old, in which case the deadline is 20 business days. Failure to respond is considered a grant of access, unless the records are otherwise exempt from disclosure. The requested records must generally be provided within 30 calendar days from the initial response, or 35 days for records 24 months old. These deadlines can be extended by written mutual consent.
Yet despite these mandates, the South Carolina Department of Commerce has routinely refused to disclose details of state incentives and tax breaks for economic development projects, saying that confidentiality was required to complete such deals. But on Oct. 12, state circuit Judge Robert Hood ruled that this policy violated FOIA. “While the Court does not dispute Commerce’s contention that companies ‘are very private’ and, under normal circumstances, ‘do not have to reveal this information to the public,’,” Hood wrote, “the question here is whether the public is entitled to disclosure of certain public information once these companies voluntarily seek and obtain public assistance.”
The case was brought by State Senator Dick Harpootlian, seeking details on state incentives for the development of the Carolina Panthers practice facility in Rock Hill.
And on Oct. 13, the Post and Courier reported that despite promising transparency about police shooting incidents, the Columbia Police Department has not disclosed records of shootings within the past five years that were requested by the newspaper back in July. Even Columbia mayor Steve Benjamin said that the delay fostered a “perception of a lack of transparency,” that was “unacceptable.”
But it seems that many of his fellow public officials haven’t gotten the message that the public’s business—including spending of the public’s money—must be done in public. As stated in FOIA itself, “… it is vital in a democratic society that public business be performed in an open and public manner so that citizens shall be advised of the performance of public officials and of the decisions that are reached in public activity and in the formulation of public policy.”
This is a laudable statement. But it is the responsibility of our public officials to make sure that it is the reality of government in South Carolina, and the duty of residents and voters of our state to hold the officials accountable for doing so.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 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. Any opinions are his own, not of his employers.