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.
“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.
