Update: Talk show host says he’ll continue to press FOIA fight

cclick@thestate.comJuly 17, 2013 

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The conservative Charleston talk show host known as “RadioFree Rocky D” said he isn’t about to give up on a question he asked four years ago that sparked a state Supreme Court decision on First Amendment rights, non-profit advocacy organizations and the state Freedom of Information Act.

Rocky Disabato filed a legal complaint against the South Carolina Association of School Administrators in 2009 when the organization refused to reveal financial details of its lawsuit against then-Gov. Mark Sanford, who was engaged in a standoff with the legislature over his resistance to accepting federal stimulus money. A lower court had dismissed the suit.

Wednesday, the S.C. Supreme Court cleared the way for that question to be re-instated when it found that the First Amendment rights of non-profit advocacy groups that operate as public bodies are not violated by the requirement to adhere to the FOIA.

“It’s been four years and all I did four years ago was ask a simple question,” Disabato said Thursday. “All I wanted to know is where they (SCASA officials) get their money and what they spend it on.”

He plans to have Columbia attorney Jay Bender, who also represents The State on media issues, on his radio show Thursday to talk about the case. The show airs 3-6 p.m. on WQSC, AM 1340 & 950.

Disabato said he learned of the decision when Attorney General Alan Wilson and his lawyer, Carl S. “Butch” Bowers, made separate telephone calls to him Wednesday. “I thought it had just gone away,” he said.

SCASA officials decried the lawsuit as a “weapon of politics” and suggested there was enough wiggle room in the decision to warrant further examination about the role of FOIA and non-profit advocacy organizations that use some public funding in influencing state legislation and policy. SCASA’s members include state schools superintenents, principals and other leaders who pay dues to the organization out of public coffers.

Justice Kaye G. Hearn, writing for the majority, acknowledged that the FOIA had a significant negative impact on SCASA’s right to freedom of speech and association, noting that the organization must conduct meetings in the open and develop advocacy policy in the presence of people who may not always be supportive of SCASA’s mission.

“However, simply because a statute negatively affects a constitutional right does not mean the statute unconstitutionality infringes that right,” Hearn wrote. “Instead, courts assess the constitutionality of a statute by selecting the appropriate level of scrutiny and subjecting the statute to that scrutiny.”

While concurring with the majority of the decision, Justice Costas M. Pleicones said he did not believe that the FOIA could be constitutionally applied to “any organization, corporation or agency.”

“Neither the State nor the majority has explained, nor is it apparent, how extending FOIA requirements beyond the publicly subsidized activities to entire organizations receiving any public funds advances the legitimate public interest at stake,” Pleicones wrote.

SCASA executive director Molly Spearman was pleased with that dissent, saying it was clear that “all the justices agreed that we had been harassed,” although that harassment did not reach constitutional proportions. But she said the decision left unanswered questions about the FOIA’s impact on organizations such as SCASA.

“It is suggesting that the argument has to be settled on whether we are a public body or not,” Spearman said. “The great concern is that it could open this up to all types of entities that may receive a dollar from the government,” including parochial schools and public-private agencies.

The decision note that “the FOIA would not apply to a private entity that receives public funds for a specific purpose,” such as a childcare center or healthcare clinic.

Keith R. Powell, one of the attorneys representing SCASA, explained in an email, “The majority decision today is that IF a private entity is found to be a ‘public body,’ then it must still comply with the FOIA. The issue of whether or not SCASA is a ‘public body’ has not even been begun yet, and would be the subject of the remainder of the lawsuit back down in the circuit court.”

He added: “Importantly, the court implicitly rejected the plaintiffs’ arguments that merely receiving any payments from the government, and/or merely being given some role in a public advisory committee, would automatically make a body ‘public’ under the FOIA.”

SCASA, concerned about huge losses of education funding, was among several entities that filed suit against Sanford over his high-profile refusal to accept federal funds under the American Recovery and Reinvestment Act of 2009. The S.C. Supreme Court entered shortly after and ruled that it was up to the Legislature, not Sanford, to decide on accepting the $787 million in stimulus money.

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