Why do we have a Freedom of Information Act?

Published Nov. 2017

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

There have been a lot of developments the past several weeks in South Carolina regarding application of the state’s Freedom of Information Act.

  • The state Supreme Court heard arguments last month on the issue of whether the Hilton Head Island-Bluffton Chamber of Commerce is subject to the law because it receives allocations of hotel occupancy tax revenue for the chamber’s role in marketing the area.
  • A coalition of media entities, including the Press Association, sued the state’s House Republican Caucus for access to financial records that the Caucus turned over to corruption investigators. The lawsuit alleges that the Caucus is subject to FOIA because it is funded by state money. This week, the judge denied the Caucus’s attempt to dismiss the case.
  • The Legislative Audit Council reported that the board of visitors of the Citadel violated FOIA by often failing to include a FOIA compliance statement in its minutes, and by holding a meeting at a private yacht club that was not open to the public. (The school responded that the yacht club gathering was a social event, not a meeting.)
  • Meanwhile, the College of Charleston refused to provide details on a rape that occurred in a campus dorm. While such information is normally released under a provision that requires routine police reports to be available for 14 days after an incident without a formal FOIA request, the college said it would release it only after such a request. The stated rationale was that revealing the information—including the specific dorm in which the crime occurred—would hamper the investigation. But the South Carolina Law Enforcement Division, which is leading the inquiry, had no objection to the disclosure.
  • The Bluffton police department rescinded its new policy of requiring a formal FOIA request for any information from routine crime incident reports. The policy had been instituted a month earlier, after local newspapers published article about excessive overtime and apparent drunken behavior in the department, although department officials denied any retaliation. The reversion to the original policy came after a reporter objected to the new procedures.

Each of these incidents show that some public officials have perhaps forgotten the underlying principle of the Freedom of Information Act. As stated by the Legislature in 1987, “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.” To further this purpose, the Legislature provided that the provisions of FOIA “must be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.”

The Legislature reinforced this earlier this year, when it passed amendments to FOIA setting deadlines for disclosure of records, and for court resolution of FOIA disputes. Unfortunately it rejected an effort to make resolution of FOIA disputes easier by creating an Office of Freedom of Information Act Review and by allowing disputes to be heard in administrative court rather than circuit courts.

But the essential purpose and rationale for the Freedom of Information Act remains, and is as important as ever. The business conducted for the public interests—government’s enactment and enforcement of laws, the creation and execution of policies, and the daily operations of government at all levels—is properly business that should be conducted in public view. The citizens of this state—and their representatives, the press—should not be shut off from information in the government’s possession that can effect their daily lives. Government openness also serves as a check on corruption and other improprieties in the operation of government.

It may be “inconvenient” for government officials and entities to be required to operate under public scrutiny. After all, it’s much easier to make decisions and “get things done” without someone watching over your shoulder. But while we all want government to be efficient and effective, it cannot be at the expense of accountability and responsibility to those who government serves, and who pay the bills: all of us.

 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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