Scoppe: Our culture of secrecy

Associate EditorAugust 1, 2012 

THE CENTER for Public Integrity announced last week that South Carolina ranked dead last nationally for public access to government information.

It wasn’t exactly news, because those of us who try to discover and disseminate that information have always sort of known it and, more to the point, because it was just a rehash of one part of the center’s landmark study from this spring that famously named our state the nation’s sixth most corruptible. As I noted earlier, that report was laced with questions about how easily the public could access information in general and information about potential conflicts in particular, and time after time we scored abysmally on them.

Still, this reminder of how we stack up against our peers couldn’t have been more timely, coming as it did against the latest spate of secrecy scandals:

•  A Circuit Court judge ruled last month that coroners may keep autopsy reports secret, because they’re “medical records.” Even if they show that, say, a person shot to death by police was actually running away, and not attacking the officer as reported. State law doesn’t call them medical records, or specifically put them off limits, but until the decision is overturned or the law is amended, it might as well.

•  The Legislature adjourned without passing a bill to end the growing practice of public agencies charging exorbitant fees for complying with public-records requests, and to require some documents to be made available immediately and most others within 30 days of a request. Although the House passed the bill, the Senate refused to consider it after representatives added a provision making legislators subject to the same openness laws as the rest of government.

•  The governor and one of her Cabinet agencies refused for more than a week to answer such basic questions as how the 14-year-old first daughter got a job at the agency and whether she’s being paid. Her official silence didn’t stop her whipping her Facebook fanatics into a frenzy by telling tall tales about what “a sad day” it was when The State “goes after” the child — even though the paper had not published anything about the matter.

Meantime, the political melodrama of the summer involves a battle over secrecy clauses so secret that the state treasurer isn’t allowed to let his staff look at investment contracts involving some of our $25 billion retirement fund. Those contracts apparently were entered into over the years without anyone bothering to ask whether it’s appropriate for a governmental entity to agree to such secrecy over something so clearly public as how it invests public money.

Jay Bender, a media lawyer who sometimes represents The State, told The Charlotte Observer in regard to the warmed-over secrecy study that our public-access laws are just fine — and in a state where we have 18 broad exemptions to the Freedom of Information Act (one of which covers “Matters specifically exempted from disclosure by statute or law”), I think he’s absolutely wrong about that.

But he’s spot on when he points to the source of all the secrecy: “We have a political culture that has never been supportive of democracy.”

Think about that for a moment: Democracy — even representative democracy — works only if the voters know enough about their government to make informed decisions about the people who are running that government.

So if your goal is for the voters to be able to choose their government, you make it easy for them to find out what their government is doing. You let them see how governmental bodies reach decisions and how governmental agencies spend money and carry out their duties. You let them see the reports that show whether police claims are true and how long it takes fire trucks to get to fires and how well social workers handle claims of child abuse. And when you enter into negotiations, be it with bus companies or Wall Street investment houses or plaintiffs in lawsuits you are settling, you start with the assumption that all the details should be public, rather than the opposite.

If you don’t want people to engage in self-government, you don’t do that. And if you even bother to write open-records and open-meetings laws, you don’t worry about the fact that they aren’t enforced. Or enforceable. As ours aren’t.

The Center for Public Integrity examined two sets of questions about our laws: the first about whether citizens have a legal right to information, the second about whether that right is effective.

On the legalities, we scored 100 percent for giving citizens the legal right to see government records, but got goose eggs because we have no right of appeal when agencies don’t comply with our requests and no agency that monitors (much less enforces) compliance with the law.

We did even worse on the application of the law. In practice, the report said, state agencies and governmental officials are subject to access-to-information laws just 25 percent of the time. In practice, it said, citizens receive responses to information requests in a reasonable time only 25 percent of the time. They receive information at a reasonable cost only 25 percent of the time.

Then there’s that enforcement problem again. In practice, when they appeal, citizens are able to resolve their information denials … never. The agency that monitors the information-access compliance independently initiates investigations … never. Just as it imposes penalties on offenders … never. Because there is no such entity, so no such investigations, and no such appeals.

Having that enforcement entity wouldn’t solve the secret autopsies problem; that requires a targeted solution, which would be fairly simple to write into the law. Nor would it solve the problem of the secret investments. That, like the problem of a governor who goes on the attack when reporters ask legitimate questions about whether she’s using her office for personal gain, requires a cultural transformation (and perhaps a targeted solution).

But it could help with the far more mundane problem of state agencies and local governments that stonewall requests for information or simply refuse to make public those things that the law clearly requires. And that could put us on the road toward becoming an informed-enough citizenry to make our representative democracy work, and to demand a cultural transformation in our leaders.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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