Freedom of Information?


Want information about the way a state agency uses your tax dollars? Here’s the good news: nearly every agency of any size employs a full-time Public Information Officer whose job – as the title implies – is to provide the public with information about how the agency uses taxpayer resources. But here’s the bad news: Many of these Public Information Officers, or PIOs, don’t view their job in this way. Instead, they understand their role as roughly that of a “communications” or “P.R.” specialist at a private company: that is, as someone hired to promote the company’s achievements and put a positive “spin” on its failures or shortcomings.

Of course, taxpayers shouldn’t be required to pay for the agency and for someone to defend those temporarily in charge of it from criticism. But it’s at least understandable that PIOs should be employed in this way: the state’s Freedom of Information law allows them – indeed, virtually encourages them – to treat FOIA requests as nuisances to which they must give a minimal level of attention. Consider these three components of the state FOIA law:

(1) Slow response times

Suppose you’re a journalist or a concerned citizen and you want to find out how a state agency came to a certain decision. By federal and state law, you’re permitted to request photocopies of all papers and correspondence related to that decision. The agency must respond, even if only to tell you it doesn’t have anything. In South Carolina, however, the agency can take up to 15 business days to get back to you. Of the 35 states that have mandatory response times, South Carolina has the second or third longest (the discrepancy arises from the Iowa law’s failure to specify calendar or business days). Vermont, for example, has a two-day mandatory response time, and nine other states – Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri, New Mexico – require responses within three days.

But the response doesn’t actually have to include anything. It can simply acknowledge the request and say it will be addressed in due course; no action on the request is required. And beyond that, the agency can legally drag its feet, ultimately supplying the requested information weeks or months later, by which time the request may have lost its relevance. So, for example, the agency can wait until some potential news story blows over and any publication of the new information becomes old news.

Part of the problem, as one recent report pointed out, is there is no authority in South Carolina charged with enforcing FOIA compliance. Theoretically, the Attorney General could get involved, but the AG is an extremely large hammer to use for FOIA compliance. Another option is a lawsuit – indeed there is an ongoing lawsuit over FOIA compliance in the Upstate – but very few citizens or media organizations have the time, money, and willpower needed to sue state agencies.

(2) Exemptions

Further, our FOIA law is weakened by exemptions. There is, of course, the notorious exemption for lawmakers, deliberately written into the law in order to shield the lawmaking class from scrutiny. For their part, lawmakers and legislative staff have been shockingly brazen in invoking their exemption.

But there are other exemptions. Exempt, for example, are all “memoranda, correspondence, documents, and working papers relative to efforts or activities of a public body … to attract business or industry to invest within South Carolina.” In other words, incentive agreements are not subject to FOIA. True, the law specifies that these agreements are not exempt from FOIA once either the company accepts the offer or the deal has been announced publicly, but even then the law exempts all “confidential proprietary information provided to a public body for economic development,” and so the relevant department (usually Commerce) is free to redact almost anything it wants from the documents in question.

(3) Obscene charges

Worst of all, agencies can charge anything they want for the requisite information. The South Carolina Department of Motor Vehicles, for instance, can charge up to $110 per hour in “programming fees” (“That’s our policy,” the agency’s spokesman peremptorily told The Nerve). Other state agencies charge $29.76 per hour (Department of Alcohol and Other Drug Abuse Services), $45 per hour (Commerce), and $30 per hour (Health and Human Services). In these and other cases, the agencies are charging far more than it costs them to fulfill the requests – this despite the fact that the taxpayers asking for the information already pay for a full-time employee to provide the public with information. Taxpayers are, after all, these agencies’ employers: they’ve already paid the bills; why should they have to pay again for requested information?

Apart from the common misunderstanding of their Public Information Officers’ role, why the high charges? It’s difficult to avoid the conclusion that the high prices for information are meant to deter. Many citizens – and many news organizations, including The Nerve – simply don’t have the money to pay the exorbitant fees levied by agencies for information requests.

A bill introduced last year in the legislature would have banned agencies from charging for staff time spent on FOIA requests; banned them from charging more than commercial rates for photocopies and other paperwork; and shortened the mandatory response time from 15 business days to 15 calendar days. And – perhaps most important of all – the bill would have imposed a 30- to 45-day deadline on actually providing the information. Agencies would no longer be free to drag out FOIA requests indefinitely.

The bill passed the House almost unanimously, but it was killed in the Senate. Why? Because it included an amendment striking legislators’ exemption from FOIA. Which tells you all you need to know about where some lawmakers’ priorities really lie.

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