Freedom of Information in S.C. – An Experiment
WE SENT SIMPLE FREEDOM OF INFORMATION REQUESTS TO ELEVEN STATE AGENCIES. HERE’S WHAT WE FOUND.
The purpose of the federal Freedom of Information Act (FOIA), passed in the aftermath of the Watergate scandal, was to make information possessed by government available to the public. Every state has an equivalent law, and any citizen – whether a member of the news media or not – may submit requests for information to any government agency under the federal or state FOIA laws.
Whether and how these agencies reply is often the subject of dispute, however. Every FOIA law includes exemptions, some necessary, some not, and in many cases government agencies simply refuse to comply – with no immediate repercussions.
Disputes over the effectiveness of South Carolina’s FOIA law has been a subject of debate at the Statehouse for several years, and so recently the South Carolina Policy Council submitted the same FOIA request to eleven state agencies. On November 8, 2016, we asked for:
► the number of FOIA requests the agency has received in the past three fiscal years;
► the number of FOIA requests to which the agency the responded by producing documents over the past three fiscal years;
► the names/identities of those who have submitted FOIA requests to the agency in the past three fiscal years;
► an itemized list of each FOIA charge for the past three fiscal years; and
► an itemized list of each FOIA charge that was collected in the past three fiscal years and a detailed summary how the funds were spent.
The state agencies were these: Clemson University, the Department of Commerce, the Department of Transportation (DOT), the Department of Education, the Medical University of South Carolina (MUSC), the State Ports Authority (SPA), Santee Cooper, the South Carolina Research Authority (SCRA), the University of South Carolina (USC), the South Carolina House of Representatives, and the South Carolina Senate.
First, some parameters about the Freedom of Information law.
South Carolina’s Freedom of Information law has broad application to state entities or “public bodies” – the term applies to any entity that receives or spends public money – and “public records” applies to virtually any papers or electronic documents in possession of state or state-owned entities. Read the definitions in 30-4-20 of the state law code, here.
Public bodies are exempt from FOIA in only a few, mostly common-sense scenarios: personal information; non-public information used by law enforcement for solving crimes; anything that would violate attorney-client privilege; etc. The two exemptions that have proven most doubtful and/or controversial are (1) trade secrets, which the Department of Commerce has frequently cited as exempting the agency from any requirement to reveal details of incentives agreements, and (2) “memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs.” Lawmakers and their staffs have used this latter exemption many times as a blanket exemption from any obligation to fulfill FOIA requests.
Public bodies must respond to the FOIA request within fifteen business days. Note: the body doesn’t have to supply the requested information within that time-frame; it must only respond by indicating that it will or will not supply the information.
Clemson University responded to the request on November 30 with a pro forma response, basically saying that it would supply the information the law requires it to supply, but not what the law doesn’t require. To date, Clemson has not supplied the information.
The Department of Commerce replied on November 29 with the requested information. From 2013 to November of 2016, Commerce received 122 FOIA requests – 18 in 2013, 45 in 2014, 48 in 2015, and 11 in 2016. Many of the fees were waived, but a few weren’t; total charges came to $171.50. Commerce supplied all of the requesters’ names and brief descriptions of the requests. In 52 cases, Commerce deemed itself exempt from the obligation to fulfill the FOIA request.
The Department of Transportation replied to SCPC’s request on the same date as the request. DOT also supplied the requested information. The agency received 1,512 responses during the 2013-2016 time-frame, averaging about 378 per year: 180 for 2013, 506 for 2014, 504 for 2015, and 322 for 2016. Total charges for this information came to $32,299, money DOT says it placed in the agency’s general operating account. DOT did not supply the names of those who submitted requests, citing the law’s exemption for anything that “would constitute unreasonable invasion of personal privacy.”
The Department of Education responded to SCPC’s request on the same day the request was made, but the agency’s chief communications officer stated that “our records retention policy filed with the state requires us to maintain Freedom of Information Act records for one year. I will be sure to let you know the availability of the documents requested within that one year timeframe.” No further information came from the Department of Education.
The Medical University of South Carolina responded to SCPC’s FOIA request on the day after the request was made. The response indicated that information was forthcoming – the agency’s public affairs director stated that she had “asked for any anticipated costs to be sent to you/me prior to conducting the request and hope to hear back by the end of this week.” No further information came from MUSC.
The State Ports Authority responded to the FOIA request on the day after our request. SPA supplied information for 2014, 2015, and 2016; the agency received 29, 20, and 28 requests, respectively, and produced 52 documents. Costs were waved for most of these requests; in total the agency took in a mere $27.20.
Santee-Cooper responded on the day after our request. The agency supplied information for 2014, 2015, and 2016; it received 17, 28, and 36 requests, respectively, and produced 72 documents. Costs were waved for all but two requests; in total the agency took in $134.69. The money was deposited into the agency’s general operating account.
The South Carolina Research Authority responded three days after our request. Over the past three years, SCRA has received ten FOIA requests. Of these, the agency supplied documents for nine. SCRA did supply the identities of the requesters, and indeed six of the ten were from SCPC and/or The Nerve. SCRA imposed no charges for these requests.
The University of South Carolina never responded to our FOIA request, not even to say the request was received – putting the institution in direct violation of the law.
The South Carolina House of Representatives responded within the 15 workday time-frame. The House received 50 requests from 42 requesters, and supplied the names of the requesters. The House’s response included this note:
In 5 instances, a House member claimed the statutory exemption under SC Code section 30-4-40(a)(8) that applies to memoranda, communications, and other work-product-related documents in a legislator’s possession and can be claimed as exempt from disclosure.
The House imposed no charges.
The South Carolina Senate, which replied within the 15-day time-frame, cited the aforementioned exemption to make the extraordinary claim that supplying simple information about open records requests amounts to an “unreasonable invasion of the personal privacy of those making requests”:
To the extent that that any public documents responsive to your request exist and are in the Senate’s possession, those public documents are exempt from disclosure pursuant to Section 30-4-40(8) of the South Carolina Code. Furthermore, your request for names and other identifying information constitutes an unreasonable invasion of the personal privacy of those making requests which likewise makes those documents exempt from disclosure pursuant to Section 30-4-40(2) of the South Carolina Code.
(1) Agencies’ interpretations of what’s required by the state’s FOIA law vary widely. Education institutions seem to believe they’re not bound by the law at all, with the Department of Education, MUSC, and Clemson technically meeting the requirement to respond but supplying no information, and USC not bothering to respond at all. Other agencies replied with a reasonable degree of promptness and thoroughness.
(2) There is no penalty in the law for agencies that simply don’t respond to open records requests per state law. Citizens may take these agencies to court, but there are obvious financial disincentives to taking that action.
(3) The South Carolina Senate abuses its exemption. The exemption – applying to “memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs” – shouldn’t exist in the first place. The attorney-client privilege does not apply to the relationship between elected official and their staff, between elected official and other elected officials, or even between elected official and constituent. In any case, SCPC’s request didn’t ask for anything belonging to legislators or their staffs. The Senate clerk seems to think the exemption he cites absolves the chamber from meeting any FOIA requests at all, which it does not.
(4) There simply aren’t that many FOIA requests for agencies to deal with. One of the most popular arguments against tightening the state’s FOIA law goes something like this: If you require agencies to respond more substantively to requests, those agencies’ public information offices will do nothing but respond to fishing expeditions by people looking for scandal. Our study doesn’t support that conclusion. Only the Department of Transportation received a significant number of FOIA requests; other agencies received far fewer. As for DOT, a $2 billion agency with a robust public information office should be able to handle 400 or 500 requests in a year.