I recently exchanged a few emails with a journalist having trouble getting public records under the South Carolina Freedom of Information Act.
The requested records sound rather innocuous. He wants the contractual arrangements between a state agency and a private business, in part to learn how much money the public body is forking out to the company.
The gist of his problem: Because this man lives in another state, the agency says it does not have to release public records to him.
I am not naming either because I don’t want to inadvertently scoop someone who reached out for help and I don’t want my decision to write about this to affect his ability to get public information, even though this agency is situated well beyond the confines of our coverage area and it seems unlikely that anyone at the agency would pick up today’s edition.
When I saw the reason for refusal, I did what I do any time I have a question about the law: I read it again.
Who can request a public record?
Per FOIA: “A person has a right to inspect, copy, or receive an electronic transmission of any public record of a public body, except as otherwise provided by Section 30-4-40, or other state and federal laws, in accordance with reasonable rules concerning time and place of access.”
Well, what’s a person?
I know, I know, it seems like an odd question, but sometimes laws use definitions that stray from what you’ll find in Merriam-Webster.
Here’s what is used in FOIA: “’Person’ includes any individual, corporation, partnership, firm, organization or association.”
That seems broad — heck, it even includes businesses — and would definitely include a journalist from another state. The law curtails FOIA rights for those who are incarcerated, but this person isn’t.
Because the journalist used the wording “citizen of the state” when explaining the answer he received, I searched the more-than-7,000-word act for the word “citizen.” It appears three times. The first and second are in the findings and purpose undergirding the act:
”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. 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.”
Nothing in that passage seems to allow government to withhold information from specific requesters. If anything, the finding that “it is vital in a democratic society that public business be performed in an open and public manner” suggests the opposite.
Here’s the other mention of the word: “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.”
So while anyone may request public information, only someone who is a resident of South Carolina may ask a court to enforce the provisions of FOIA, and because of that limitation, this agency suggested it doesn’t have to release the information.
In other words, in response to a query about how your tax dollars are spent, an agency effectively said, “Neener! Neener! You can’t make me!”
Such a denial is telling. Instead of fostering a culture of openness and transparency, this agency wants to find excuses to keep records from the public. And the law is clear that anyone may request public records so long as they aren’t in prison, meaning the agency is taking the position it doesn’t matter whether it complies with the law because there is effectively no enforcement mechanism. Let’s hope others don’t embrace this tactic.
This situation also highlights a problem with the law.
Imagine someone who worked or owned a business in South Carolina being denied public records because their bedroom is in Charlotte or Augusta. Or if a journalist from a regional or national organization couldn’t get public records because of their home address even though South Carolinians are among their audience.
This de facto ability to deny records to those outside the state does not serve the interest of the public, the taxpayers or the voters.
It’s never too late to strengthen FOIA, whether by improving the law or the culture of bureaucracy. After all, people have the right to know what their government is doing.
