South Carolina’s open meetings and records law, designed to make government transparent and keep citizens informed, increasingly is being eroded by some state and local public officials.
Whether it is the result of court decisions, acts by elected officials, or bureaucrats who make decisions such as charging the public high prices to copy public records, people acting in the name of government are taking actions that keep the public in the dark.
The problem seems to have accelerated in the past several months.
“Politicians and bureaucrats don’t want people to know what they are doing,” said John Crangle, executive director of S.C. Common Cause, a watchdog group. “They don’t want to be inconvenienced by the public, even though the public is their boss.”
Even the S.C. Supreme Court, which in the past could usually be relied upon to uphold the public’s right to know, has joined the march to more secrecy.
In three recent decisions in the last two months, justices have:
• Ruled that coroners’ autopsy reports can be kept secret because they are “medical records,” even though the person is dead and there is no privacy to protect. Autopsy records usually contain details about the cause of death as well as whether the person had diseases such as cancer or AIDS.
As a practical matter, reporters and members of the public don’t usually request to see autopsy records. But in the case of a police shooting or similar matter of high public interest, an autopsy report dealing with the cause and manner of death could supply essential information about the case. That’s what happened in Sumter, when police said they shot and killed a man because he was facing them with a gun. But the autopsy report, obtained by local reporter Joe Perry from another source after the coroner said he could not have it, showed the man was shot twice in the back and twice in the back of the head. The (Sumter) Item newspaper sued and lost.
• Ruled that public bodies such as county councils don’t have to publish agendas for upcoming regular meetings. The high court said a close reading of the S.C. Freedom of Information Act showed it only required councils to publish times and dates of next year’s meetings. Thus, since the FOIA didn’t specifically say an agenda must be published for all those meetings, no agenda is required, the high court ruled.
• Ruled that state Judge Casey Manning must close an upcoming hearing about whether to disqualify Attorney General Alan Wilson from overseeing an ongoing State Grand Jury investigation into whether House Speaker Bobby Harrell mishandled his campaign finances. This pro-secrecy ruling overrides a precedent set earlier this year, when Manning allowed the public and press to attend two open hearings at the Richland County courthouse on the matter after The State newspaper learned of the unannounced hearing.
Chief Justice Jean Toal, one of the chief authors of the state’s “sunshine law” when she represented Richland County in the S.C. House, voted with the majority in each of the three Supreme Court rulings.
In both the autopsy reports case and the agenda case, the Supreme Court noted that the Legislature has the power to change the law concerning agendas and autopsy records.
State Sen. Larry Martin, R-Pickens, said last week he will hold a Senate Judiciary Committee study committee in the fall and get citizens and stakeholders to talk about the agenda and autopsy issues.
“Both decisions in my view need to be addressed,” said Martin, Judiciary Committee chairman.
There should be a way to require agendas for public meetings – except in cases of emergencies – and to open up public interest portions of an autopsy report without making the rest of the autopsy accessible to sensationalists who would do things like post autopsy photographs on the Internet, Martin said.
“We are going to listen to what the coroners have to say about what would be involved in maybe redacting some of that information,” Martin said.
Many public bodies don’t need to be told to post an agenda.
“We tell our clients it’s good business to publish an agenda before every meeting,” said Columbia attorney Ken Childs, whose firm represents numerous school districts across South Carolina. “It tells the public what is going to be discussed. It makes for an orderly meeting. It’s just common sense.”
Not all judges are inclined toward secrecy.
Just last week, State Judge Eugene Griffith ordered Attorney General Alan Wilson to release documents relating to the estate of musician James Brown. The ruling was a victory for freelance journalist Sue Summer of Newberry, who has long been trying to get access to normally public court documents in Brown’s estate. She is represented by former state senator Tom Pope of Newberry and media lawyer Jay Bender of Columbia, who also does work for The State newspaper.
In a statement Friday, Wilson’s office said he has not decided whether he will fight the judge’s order or make the documents public. Wilson has 15 days to produce the documents.
Sometimes, government chooses to release information, despite provisions in the open records law that would allow secrecy. As far as is known, no harm to anyone has resulted.
At least eight times in the past three years, for example, Columbia City Council could have gone behind closed doors to discuss “legal matters,” but its members voted to allow the public to listen to discussions on: purchase agreements for the Palmetto Compress Warehouse, changing the city’s form of government and salaries of the mayor and council members.
But that’s not the norm, says S.C. Press Association executive director Bill Rogers, who keeps tabs on public access.
“We are definitely seeing a trend toward public relations folks managing the news, sanitizing information and slowing down its release,” Rogers said. “The public should be concerned.”
7 THINGS PUBLIC OFFICIALS DON’T WANT YOU TO KNOW
WHAT COLUMBIA OFFICIALS WERE DISCUSSING WITH NOW-CONVICTED FELONS
In early 2013, The State newspaper asked the city of Columbia under the S.C. Freedom of Information Act to see “all communications,” including emails, between city officials and Greenville businessman Jonathan Pinson and Florida developer Richard Zahn.
Columbia’s public relations office responded there were more than 1,000 such communications and it would take time to release them.
In late 2013, 10 months after receiving the newspaper’s request, the city released some 200 emails.
No city official has explained why the newspaper received only 200, not 1,000, emails.
And no one has said why it took nearly a year to respond.
The law says public officials have 15 working days to respond to a request for public records. Rogers says the law strongly implies agencies should act – actually turn over the document – within 15 days. But, he notes with regret, there is no specified time limit by which they have to turn over a public document. That's one of the things he'd like to see changed. As a practical matter, however, most agencies do turn over documents they deem public within 15 days, he said.
Both Zahn and Pinson, who were discussing development projects with city officials, are now convicted felons. Earlier this month, a federal jury convicted Pinson, a longtime friend and business partner of Mayor Steve Benjamin, on 29 counts after a federal public corruption trial. Zahn pleaded guilty, testified against Pinson and is hoping to avoid a prison sentence.
HOW MUCH PANHANDLING HAPPENS DOWNTOWN
Matt Kennell, head of the taxpayer-supported City Center Partnership, which gets $250,000 yearly from Columbia City Council for the private nonprofit’s use to hire yellow shirt security and litter clean-up workers, apparently doesn’t want the public to know details about data his yellow shirts routinely gather.
City Center Partnership, an alliance of businesses, has said the data does not use the word “homeless,” a controversial topic for business and city leaders. But it does includes broad figures about the frequency of panhandling, trash and litter pickup.
“We will make a determination whether this request is eligible under FOIA and then after that will determine whether to share any additional information in any case,” director Matt Kennell wrote this newspaper on June 2.
It shouldn’t take a lawyer to determine whether the information is public. A landmark S.C. Supreme Court case held that any organization that receives or spends public money is subject to the open records law.
However, after checking with his private lawyer, Kennell notified The State newspaper that his City Center Partnership has “no duty” to release weekly reports compiled through the yellow shirts. “... the weekly reports that you are requesting are not in our (City Center Partnership) possession so there is no duty to provide them to you or the State Media Company.”
Instead, he referred the newspaper to a private company that City Center Partnership contracts with to hire the yellow shirts.
CRIMES AND DETAILS ABOUT CRIMES
The Lexington County sheriff's department charges reporters $5 per copy of an incident report – a vital public document that describes what happened during a reported crime that the police respond to.
South Carolina's FOI law specifically says this document must be made public. It is often difficult to fully report a crime incident without seeing a police incident report. Other law agencies – the Richland County Sheriff’s Department, the Columbia Police Department, the Kershaw County Sheriff’s Department and the Sumter County Sheriff’s Department – make incident reports available at no charge.
Charging reporters $5 for incident reports is a policy that started under former Lexington County Sheriff James Metts, now indicted and facing federal criminal felony charges for accepting cash bribes.
The preamble of the state’s open records law says that “it is vital in a democratic society that public business be conducted in an open and public manner.” That section of the law also encourages public officials to turn over public information “at minimum cost or delay.” Specifically, the law says police reports are public records to be made available at a citizen’s request.
Some law agencies also practice censorship when releasing incident reports.
The Richland County Sheriff’s Department, for example, routinely omits the names of victims of crime.
According to S.C. Press Association executive director Bill Rogers, law agencies can’t routinely censor basic information in incident reports – and that they must describe a specific reason or a specific threat made against a victim if they are deleting a specific name from a report.
HOW PUBLIC HOUSING DEVELOPERS HANDLE CONTRACTED LABOR
High fees are one way public agencies throw up roadblocks to the release of public information.
In March, the Columbia Housing Authority billed The State newspaper $1,425 for three boxes of copies of payroll records for companies working on the Village at River’s Edge and another authority project.
The newspaper argued that the fee was exorbitant and said it did not ask for copies, just to be able to review the records.
Housing Authority officials said they had to photocopy each original record and then remove protected Social Security numbers of workers before releasing documents.
The law, which dates to 1976, specifically notes that public agencies don’t have to charge citizens and the media for police incident reports and other public documents. The public agency “may” waive or reduce fees if it determines that to releasing the information “can be considered as primarily benefiting the general public.”
WHERE SEXUALLY ORIENTED BUSINESSES MAY LOCATE
Columbia and other public agencies routinely refuse to release information that involves advice from their attorneys, who are paid with public money for their advice to public bodies on public issues.
In January 2013, the newspaper asked Columbia officials for access to locations in the city where sexually oriented businesses could legally locate. The request was triggered by City Council seeking to rewrite its zoning law after Taboo, an X-rated adult store, opened on Devine Street.
At the time, city staffers were using computer mapping to calculate places where future adult businesses could open their doors, because federal law will not permit outright bans.
City Hall declined the request, saying any communication between the city and the city attorney’s office was protected “work product” between an attorney and the client (city government).
The city later used the computer mapping to defend itself in court from a challenge by Taboo’s owner – releasing in the courtroom the data the newspaper had asked for.
WHAT SPECIALLY TRAINED STATE EMPLOYEES KNOW
The S.C. Department of Health and Environmental Control routinely muzzles officials who have first-hand knowledge about matters of public interest.
Since Catherine Templeton’s appointment as director of DHEC in the spring of 2012, the agency rarely grants reporters interviews with its knowledgeable agency staffers. Instead, key agency officials – including DHEC’s chief spokesman – respond to questions themselves through emails. And often, the written responses do not fully answer the questions.
Also, in previous years, reporters and members of the public could talk with DHEC board members during breaks in their meetings.
However, last September, signs were posted at the board’s monthly meetings that bar anyone from approaching board members at their seats in the agency’s board room. “Board members and designated DHEC personnel only,” the signs stated. An armed guard sat next to one of the two signs.
An agency spokesman said at the time that DHEC had a long-standing policy of trying to keep the public and reporters away from the conference table. But the September meeting was the first time signs articulating the policy had been placed in the room, the spokesman said.
Another example of muzzling happened earlier this summer, when the S.C. Ethics Commission ordered its longtime attorney, Cathy Hazelwood, not to comment publicly when queried by reporters. For years, Hazelwood’s knowledge of the law has provided the public with insight into arcane state law and often murky ethical situations.
Instead, the commission authorized its executive director, Herb Hayden, to comment. However, Hayden is not nearly as accessible and responsive as Hazelwood in explaining ethical situations, according to reporters who have dealt with him. In one week in June, for example, when Hazelwood was out of the office, Hayden didn’t return three phone calls made by an editor at The State concerning public officials’ disclosure of business trips.
WHO’S BORROWING MONEY FROM THE CITY
During the summer of 2011, Columbia City Council learned that $817,500 in commercial loans the city had extended to low-income borrowers using largely federal money were in default. The default rate was 30 percent of 30 borrowers, who owed a total of about $2.7 million.
The State newspaper submitted an open records request in August of that year for information about businesses and residential borrowers delinquent on the loans made through the city’s Community Development department.
The city also asked the S.C. Attorney General whether that information was public. In December 2011, the Attorney General’s office said its study of the law indicated the borrowers of city money, the loans and the amounts are subject to disclosure.
So city officials agreed to release information on past due, delinquent and written-off commercial loans.
But at Mayor Steve Benjamin’s urging, council then hired a private attorney who provided an opinion that residential loans likely are not subject to disclosure.
The city never released how much it spent on the second legal opinion nor has it released any details about the numbers, amounts or which borrowers are delinquent on residential loans.