Creating the Office of FOIA Review

H.3191 is another attempt to strengthen FOIA by creating the Office of FOIA Review, which would be headed up by the Chief Judge of the Administrative Law Court and will hold hearings when individuals or public bodies allege the FOIA law isn’t being properly followed or is being abused. The bill further seeks to strengthen FOIA by capping both search fees (capped at the prorated hourly salary of the lowest-salaried staff member who can fulfill the request) and deposit requirements (limited to 25 percent of the total cost of reproduction of records). The required response time to a FOIA request would also be slightly reduced by the proposed law. Yet another provision would require that public bodies make available online all documents produced by the body over the past six months.

Most of the bill’s provisions, unfortunately, are either suspect or pointless. One provision, for example, would turn violations of the FOIA into a civil rather than a criminal offense. The reasoning behind this proposal is unclear; it’s enough to point out that ethics reform shouldn’t be about relaxing law governing the conduct of public officials.

The most worrisome provision would allow public bodies to petition the Office of FOIA Review to seek relief from “unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests”. Whether a request falls into any of the preceding categories is of course completely subjective. Public bodies will end up using this provision to avoid the disclosure of any information they’d rather keep secret. In short, this provision violates the entire spirit of the FOIA law.

Further, search fees and deposits could and should be eliminated rather than simply capped. And it’s unclear why a new government office is needed when a citizen can already take a FOIA complaint to a court – as the South Carolina Public Interest Foundation successfully did against Ethics Commission Director Herb Hayden, who denied the existence of a public record to The Nerve.

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