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Mar 20, 2019

Does South Carolina’s FOIA end at the border?

Common Pleas Judge Robert E. Hood’s ruling that the House Republican Caucus is not subject to South Carolina’s Freedom of Information Act is a disturbing result. The caucus uses government resources without charge, and much of the state legislature’s policies are formulated in the caucus meetings. It is especially troubling because of the corruption that has been found in the legislature in recent years, since such impropriety can flourish in secrecy.
But beyond the issue of public and media access to the caucus, Judge Hood also made another, more disquieting ruling: that while South Carolina’s Freedom of Information law allows anyone to request access to state and local government records, only “citizens” of the state can sue to enforce the statute when access to records is denied.  And “citizens,” he ruled, means only people who live in South Carolina, not corporations that do business here.
Hood wrote that this decision was rooted in the language of the FOIA itself. At first, the “Findings and Purpose” section (§ 30-4-15) states that
The General Assembly finds that 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. (§ 30-4-15, emphasis added).
But in the very next sentence, the statue implies that “persons”—not just citizens of the state—have the legal right to request access to public records and meetings. It also implies that “representatives” of citizens should have access, without requiring the representatives themselves to be citizens.
Toward this end, provisions of this chapter 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. (§ 30-4-15, emphasis added).
Later on, the statute provides that “[a] person has a right to inspect, copy, or receive an electronic transmission of any public record of a public body,” subject to certain records exemptions (§ 30-4-30 (A)(1), emphasis added), and that “[e]ach public body, upon written request for records made under this chapter, shall within ten days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request, notify the person making the request of its determination and the reasons for it” (§ 30-4-30 (C), emphasis added).
But the FOIA section that allows lawsuits to enforce disclosure requirements describes only “citizens” being able to file such lawsuits: “A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of this chapter in appropriate cases …” (§ 30-4-100 (A), emphasis added). But, again, the next section—allowing for the award of attorney fees in such actions—provides that “[i]f a person or entity seeking relief under this section prevails, he may be awarded reasonable attorney's fees and other costs of litigation specific to the request. If the person or entity prevails in part, the court may in its discretion award him reasonable attorney's fees or an appropriate portion of those attorney's fees” (§ 30-4-100 (B), emphasis added).
The plaintiffs in the case over the caucus were all entities that conduct business in the state: the corporate entities of The State and Post and Courier newspapers; Gannett (owner of The Greenville News); the South Carolina Press Association; the South Carolina Broadcasters’ Association; and the Associated Press. Counsel conceded at trial that Gannett and the AP are incorporated outside of South Carolina, and thus are not citizens.  Judge Hood then held that the remaining newspapers and organizations were not individuals and thus were not “citizens” of South Carolina under the statute.
In doing so, Judge Hood’s ruling contradicted a 2016 ruling by a Court of Common Pleas judge, which rejected a similar argument that a corporation was not a “citizen” and thus could not sue under the Freedom of Information Act. “The Court finds the General Assembly intended that corporations, such as the Plaintiff, be entitled to enforce FOIA,” Circuit Judge D. Craig Brown ruled in that case. An appeal in the case is pending.
If Judge Hood’s decision is upheld, South Carolina would become one of several states that have language limiting access under their freedom of information laws to state residents. These include Alabama, Arkansas, Delaware (see below), Georgia, Missouri, New Hampshire, New Jersey (see below), Tennessee and Virginia (see below). And a bill pending in Kentucky would impose a similar restriction.
In 2013 the United States Supreme Court held in McBurney v. Young that Virginia’s limitation of access under its freedom of information to citizens did not violate the Privileges and Immunities Clause of the U.S. Constitution, which provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” In his majority opinion, Justice Samuel Alito wrote, “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws."
The Supreme Court’s decision effectively overruled a 2003 decision by the federal Third Court of Appeals which held that a similar limitation in Delaware’s freedom of information law did violate the Privileges and Immunities Clause.
Despite the Supreme Court’s decision, a memo from the Virginia Freedom of Information Advisory Council issued after the court’s ruling recommends that state and local agencies release information regardless of the requestor’s residency. And in 2017 Virginia amended its Freedom of Information Act to allow access not only by Virginia citizens, but also by “representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth.”
In Tennessee, the Open Records Counsel’s FAQs note the statutory limitation to citizens, but add that “governmental entities may make records accessible to individuals who are not citizens of Tennessee.” The Delaware Attorney General took a similar position in a 2016 opinion.
In 2018, a New Jersey appellate court went further, ruling that while its freedom of information statute referred to “citizens” of the state, the statute’s general goal of access to government information meant that non-residents of the state could also seek information under the law.
[T]he reference to “citizens”—found in [New Jersey’s Open Public Records Act] and nowhere else in OPRA—expresses the Legislature's general intent to make New Jersey government records open to the public, rather than expressing an intent to limit access to only New Jersey residents or domiciliaries. Because the more specific provisions of OPRA refer to “any person,” and because OPRA is to be construed broadly to achieve the Legislature's over-arching goal of making public records freely available, we conclude that the right to request records under OPRA is not limited to “citizens” of New Jersey.
Hopefully Judge Hood or an appeals court will take the same approach regarding South Carolina’s law. Looking at the totality of the Freedom of Information Act, the law should serve as a means for news organizations and other groups to seek information from state government on behalf of the residents of this state, regardless of the technicalities of where the organizations are incorporated. After all, the entire purpose of the Freedom of Information Act is to promote disclosure of government information, not to limit access to that information.

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