H.3352 – Creating the Office of FOIA Review

H.3352 creates a new judicial branch under the Administrative Law Court that would oversee Freedom of Information Act (FOIA) appeals and challenges and would institute a number of reforms to current FOIA law. This bill seeks to strengthen FOIA by capping both search fees (not to exceed the prorated hourly salary of the lowest-salaried staff member who can fulfill the request) and deposit requirements (limited to 25 percent of the anticipated 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.

Unlike versions of this bill from previous sessions, H.3352 includes a provision that places any hearings involving dashcam and audio recordings taken by law enforcement under the jurisdiction of the circuit courts. This version also allows citizens to challenge an agency’s determination that requested records are exempt from FOIA. This provision gives citizens another avenue to challenge the impediment of public information.

This legislation specifies that despite an agency’s failure to respond, record exemptions are not waived, whereas before it was unclear. Negative changes also include turning FOIA violations into a civil rather than a criminal offense and allowing public bodies to seek relief from “unduly burdensome, overly broad, vague, repetitive, or otherwise improper requests.” These highly subjective terms would provide ample cover to public bodies seeking to skirt the law and, therefore, violate the entire spirit of the FOIA law.

Finally, the need for a new government office to handle these complaints is debatable, as they are currently handled well by the existing courts. Moreover, search fees and deposits should be eliminated rather than simply capped. It is 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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