Words and Deeds
Published July 2019
In 2017, when signing a law to strengthen the state’s Freedom of Information Act, Governor McMaster said that “[g]overnment has to be accountable to the people it serves, and its citizens should have unimpeded access to public information that speaks to whether or not their best interests are being served.” And earlier this year, when releasing an audit of state agencies’ compliance with the law—the results were mixed—and issuing an executive order for agencies to better meet FOIA requirements, McMaster said, “We want South Carolina to lead the country in having the most open records laws and most informed public.”
But developments within the past two weeks regarding the selection of a new president for the University of South Carolina have not been a model of transparency.
Just to recap: Back in April, after a confidential search, the board publicly announced four finalists for the presidency. This is required by section 30-4-40(a)(13) of South Carolina’s FOIA, which provides that “All materials, regardless of form, gathered by a public body during a search to fill an employment position [are exempt from public disclosure], 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.”
The four candidates made public visits to the USC campus, including forums with students and faculty. When the university’s Board of Trustees—primarily elected by the legislature and appointed by the governor—met, there was an apparent favorite among the board: Lt. Gen. Robert L. Caslen Jr., formerly superintendent of the U.S. Military Academy at West Point. But other board members, along with some students and faculty, raised concerns about Caslen and the other finalists. In the end, the board decided not to approve any of the four finalists, and instead to re-open the search and appoint an interim president.
And that’s where things stood until July 9, when it was reported that Governor McMaster was pressuring the board of trustees to schedule a vote on July 12, and approve Caslen as the new president of USC. Some of the trustees balked, and faculty and students mobilized to object to the appointment. One of the trustees went to court to stop the vote, since the board members had not received the five days prior notice required by state education law. This led a state court judge to issue an injunction barring the planned meeting. Current attorney general Alan Wilson also concluded that the meeting would be illegitimate because of the short notice.
As this is written, another board meeting is planned for July 19. Caslen may be chosen, although some trustees said that they could select another candidate, even one who was not among the four named finalists, arguing that the board’s only obligation was to identify at least three finalists, but they need not select any of them.
These maneuvers don’t comport with the concept of openness in government. But they are just another example of public officials acting in defiance of the Freedom of Information Act. I wrote about this almost a year ago, and cited several studies and theories on why this problem persists.
The past several weeks have produced other, new examples of government officials and entities defying the Freedom of Information Act:
- The Greenville County Sheriff’s Office’s released only basic details on a fatal shooting at a local Walmart, demanding a formal FOIA request for the full incident report. This was despite the law requiring police reports to be immediately available to the public and press, without a FOIA request.
- The Greenville and Spartanburg county legislative delegations apparently violated the FOIA’s open meeting provisions by recommending a candidate for a Department of Transportation Commission seat by signing letters to the governor, without a public meeting to discuss the recommendation. The Attorney General determined in a 2007 opinion that a public meeting was required for such an appointment.
- Stu Rodman, chairman of the Beaufort County Council, sent an e-mail to colleagues recommending that transparency be removed from the council’s priorities, and then announced that he would no longer speak to reporters for The Island Packet.
- Judges in Greenville and Pickens counties issued an order that would have barred public disclosure of police body camera footage, but the order was blocked by State Supreme Court Chief Justice Donald Beatty, who wrote that the order was issued improperly.
These incidents show the need for continued vigilance in enforcing and protecting the provisions of the Freedom of Information Act, and open government in general. The SCPA and other organizations keep watch for government officials and bodies that disregard FOIA, but this effort requires vigilance from the press and all citizens of the state, in order to keep government responsible and accountable.
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.