SC activist’s push for criminal trial dismissed in open-records case

jself@thestate.comDecember 17, 2013 


An open-government activist says S.C. Attorney General Alan Wilson should have criminally prosecuted the director of a state agency for failing to answer a public records request on time.

Instead, an attorney with Wilson’s office last week dismissed the criminal allegation against Department of Health and Human Services director Tony Keck.

Ned Sloan, a retired Greenville construction contractor, accused Keck and the health agency of violating state law by failing to respond on time to Sloan’s request for public records related to the hacking of the agency’s data.

W. Allen Myrick, senior assistant deputy state attorney general, said Tuesday he dismissed the criminal case after finding no evidence Keck “willfully” violated the law or even knew about the delay in responding to the request for information. Proving the violation was done “willfully” – or on purpose – is a requirement for criminal penalties, Myrick said.

Keck’s office declined to comment.

Myrick dismissed Sloan’s criminal allegation against Keck last Wednesday, the day before it was set for trial in a Richland County Magistrate’s Court.

The criminal allegations followed a successful civil lawsuit that Sloan and his attorney, Jim Carpenter, brought against Keck and Health and Human Services in December 2012 for responding late to the records request. A Circuit Court judge ruled in May that Keck and the agency violated the law. The judge ordered the defendants to pay nearly $4,740 to cover Sloan’s attorney and litigation fees.

The civil and criminal actions are two of about 100 lawsuits that Sloan and Carpenter have brought against agencies – from the governor’s office to local school boards – about how they spend taxpayer money and whether they comply with the state’s open records law, Carpenter said.

Violating the state’s open records law “willfully” is a misdemeanor under state law, carrying a penalty of up to a $100 fine or 30 days in prison. Penalties double for second offenses and triple for third.

There has been only one criminal prosecution for an alleged violation of the state’s open records law, said Jay Bender, a Columbia media attorney who sometimes represents The State.

In 2011, a jury found the commissioners of a Spartanburg-area volunteer fire department not guilty of willfully and intentionally violating state law when they held a secret, illegal meeting.

In Keck’s case, Sloan and attorney Carpenter disagree with Myrick’s interpretation of “willfully.”

“Everybody is charged with knowing what the law is,” Carpenter said, arguing the health agency decided to fulfill the request late, making it a willful act. “It’s not like they were incapacitated for 15 business days.”

Carpenter dismissed Myrick’s statement that Keck should not be blamed because he was not involved in fulfilling Sloan’s request, saying the request was addressed specifically to Keck. “He’s the man in charge over there. I don’t think that he can escape responsibility by saying, ‘Oh, it wasn’t me, it was my underlings,’” Carpenter added. “The buck’s got to stop with him.”

On Monday, Sloan wrote Myrick to say the Magistrate’s Court could have decided whether Keck and the agency violated the law willfully and whether Keck was an appropriate party to blame, but the dismissal of the case prevents a court from ruling.

Sloan said the case’s dismissal is disappointing, but he has other actions in the works.

“I don’t get upset. I get even.”

Reach Self at (803)771-8658

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