In the past several weeks and months we have seen numerous examples of local and state government boards and agencies refusing to comply with South Carolina’s Freedom of Information Act. These include school districts not disclosing numbers of COVID cases, law enforcement’s initial refusal to disclose more than scant information about the extraordinary Murdaugh case, and Chester’s human resources director, Coastal Carolina’s women’s lacrosse coach, the director of the S.C. Department of Disabilities and Special Needs and Lexington-Richland District 5’s superintendent all mysteriously left their positions without any actions in a public meeting. Municipalities including Mount Pleasant have even gone to court to prevent public disclosure of their actions.

And there are many other examples. So many, in fact, that a Post & Courier editorial recently suggested that Attorney General Alan Wilson—who said that he was just enforcing the law in challenging mask mandates at public universities and in public schools—“could start filing lawsuits over what likely is the most violated law by S.C. state and local governments: the Freedom of Information Act.”

South Carolina is not the only state where government entities violate or ignore freedom of information and open records laws. A 2019 survey by the National Freedom of Information Coalition found that nearly 87% of respondents said the incidence of open records or open meeting violations in their state and local jurisdiction stayed steady or increased over the prior two years, and more than half of respondents said government officials’ understanding of and voluntary compliance with open government requirements in their state and local jurisdiction had decreased over the prior two years.

Amendments to South Carolina’s Freedom of Information Act in 2017 were meant to curb agency’s abuses and unfaithful interpretations of the statute. But a provision that would have created an Office of Freedom of Information Act Review under the auspices of the Administrative Law Court to hear FOIA disputes at lower costs than the usual process in the district courts, was removed from the 2017 amendments. 

A new study shows that freedom of information requests in states with such agencies lead to disclosures of relevant information more often than in states without such agencies. But the study found that the strongest factors in whether FOIA requests in a particular state led to relevant disclosures were whether there is an active, FOI-focused advocacy organization in the state; whether the state’s legislature is subject to the FOI law; and whether the state’s FOI law includes an established fee schedule for searches and disclosure of records.

One factor that the study found was not determinative in FOI responses was whether the state’s freedom of information law provided for criminal penalties for government officials’ violations of the FOI law. In fact, the study points out that some states have in recent years eliminated such provisions. The 2017 revisions in South Carolina did this as well, replacing the provision allowing for criminal prosecution of FOI violators with one allowing 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. 

While the 2017 changes to South Carolina’s FOIA could certainly have gone further, it is clear that in adopting the changes that were made the legislature was seeking to increase compliance with the law. But the ongoing problems with access to government information and actions show that there is a continued need for vigilance and perhaps additional strengthening of the law, which by its own terms states the essential reason for such disclosure: “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.”

Eric P. Robinson focuses on media and internet law as associate 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 necessarily those of his employers.