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.
