Columbia, SC — IT’S A TESTAMENT to how little S.C. officials think of the concept of operating government in public that many media interests have been wary of a proposal to close the biggest loophole in the Freedom of Information Act.
It’s not that they want to retain the loophole that exempts an entire branch of the government. Rather, they worry that trying to close it would derail efforts to pass a bill that aims to make the people already covered by the law actually obey it.
The legislation that the S.C. Press Association is pushing is by any standard a modest bill, which addresses what can only be called willful actions to keep public information out of the public’s hands. It was written in response to years of public officials dragging their heels for weeks, months, years on providing public documents; charging hundreds or thousands of dollars to “research” (by which they often mean “find a way to hide”) records and copy documents; and simply refusing to comply with the law, forcing people who seek information to hire an attorney and take them to court.
The problem was underscored by the 2012 study that ranked South Carolina as the nation’s sixth-most corruptible state, helping to propel ethics reform to the front of this year’s legislative agenda. The Center for Public Integrity found that our government is at its worst when it comes to providing public information to the public, because while the public-access requirements in our law look pretty good on paper, there’s no enforcement provisions and far too little compliance.
Although we traditionally have thought of government ethics and open government as separate issues, they are in fact inextricably linked. Secrecy, whether about how elected officials make their money or how they spend our money, creates a fertile breeding ground for corruption. And letting the public know about governmental actions reduces the chance that public officials will act in their own interest instead of the public’s interest in the very same way as letting the public know about lawmakers’ potential conflicts of interest.
The Freedom of Information bill being considered this afternoon by the House Judiciary Committee (H.3163) would reduce from 15 to 10 working days the time government agencies have to say whether they will comply with a request for access to public records; require most documents to be provided within 30 days (there currently is no deadline); limit the fees government can charge for complying with the law; and set up an appeals process to resolve disputes faster and at a lower cost than going through the courts.
They’re all provisions that really shouldn’t be necessary but clearly are, and they all were included in the report issued last month by the independent Ethics Reform Commission, appointed by Gov. Nikki Haley and chaired by former attorneys general Henry McMaster and Travis Medlock.
But the McMaster-Medlock report recommended another significant change, which is not included in the FOI bill: Eliminate the blanket exemption for “Memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs.”
You might recall that then-Rep. Nikki Haley, campaigning for governor on a platform of bringing more transparency to government, used this exemption when she refused to provide the public access to her House email account. She eventually released printouts of some emails, with names, addresses and sensitive personal information of many of those who wrote her redacted, but that episode brought enough attention to the exemption to prompt what last year was the first serious attempt I can recall to drag legislative correspondence into the light of day.
Messrs. McMaster and Medlock consider it essential to close the legislative loophole in the same legislation that puts teeth in the law, because they know many legislators would jump at the opportunity to claim they’ve reformed the FOI without giving up their exemption.
So far this year, no one has proposed adding the legislative provision to the enforcement bill, although the Press Association’s Bill Rogers, who served on the McMaster-Medlock commission, told me last week that his organization was no longer opposed to tacking it on if legislators “think it’ll get through with that on there and it’s not a poison pill.”
That’s what it turned out to be last year: After the House added the legislative provision to the enforcement bill and passed it 101-1, the bill died in the Senate without a vote.
I don’t know what the best approach is this year. The Senate seems so far to be less of a place where bills go to die, thanks to changes to its rules and the departure of some of its worst obstructionists. And as Mr. Rogers suggested, the McMaster-Medlock report might have given reform of the public-records law some legs it hasn’t had before.
But here’s what I do know: There is no legitimate reason to provide this blanket exemption to the Legislature. And there is no legitimate reason not to pass the bill to make officials comply with the current requirements.
However they do it, our lawmakers need to stop making excuses and make both of these changes. This year.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571.