DHEC open records policy under fire

COLUMBIA, SC A state agency’s policy of charging citizens for access to public records drew sharp criticism this week from a veteran Columbia lawyer, who said the practice has a potentially chilling effect on the release of government information.

Attorney Bob Guild wrote the Department of Health and Environmental Control to complain about the practice of charging people who have filed open records requests for the time it takes DHEC staff to produce the records. Those charges are in addition to normal copying costs.

Guild said the DHEC policy is apparently a recent one. Guild, who has represented citizens in environmental cases against DHEC since the 1980s, has reviewed tens of thousands of agency records through use of the state Freedom of Information Act.

“I’ve been dealing with DHEC for 30 years and this is the first time I’ve ever had an FOIA request where they have imposed charges for anything other than copying costs,’’ Guild said Friday.

Guild said he and a grassroots citizens group he represents received a $120 bill for staff time charges, in addition to copying costs.

That might not seem like much to corporations, but paying such an amount is not easy for many working class citizens, he said. Guild was seeking records of a proposed rock quarry in western Lexington County that neighbors fear will create air pollution and cause their wells to dry up.

DHEC issued a statement Friday saying the agency is committed to transparency, but it is allowed under South Carolina law to charge “a reasonable rate for making records available to the public.”

The department charges a $20-per-hour search fee and a $20 dollar-per-hour fee to redact what it considers sensitive information from records. The department also charges $15 per box of records that have to be retrieved from off-site, according to a fee schedule the agency released Friday. Copying costs are 10 cents per page for requests of more than 25 pages.

Department spokeswoman Cassandra Harris said the agency has received more than 4,800 Freedom of Information Act requests since March 2015, an average of about 406 requests per month.

Guild wrote DHEC letters March 3 and April 6 to protest an agency decision to redact what it had said was sensitive information from records. Most of the $120 cost was for the time it took staff to black out certain information before releasing the documents, he said.

Guild questioned whether those charges are legal under the S.C. Freedom of Information Act. DHEC later told him some redactions should not have been made, records show.

Open government advocates say charging citizens for the time it takes staff to produce records is a concern in many places.

In the Midwest, journalists learned it would cost $2,774 to obtain presidential spending records at the University of Michigan, according to the Columbia Journalism Review. The university said the cost is for the time it would take to search for the records, as well as the time to review and duplicate documents, the recent CJR story said.

Jay Bender, a free press lawyer who helped craft South Carolina’s FOIA law, said the time it takes staff to retrieve documents should be a government service, even though it’s legal to charge for staff time in many cases.

“I always believe that keeping the public informed as to what a public body is doing is part of the cost of doing business,’’ he said. “But the (S.C.) General Assembly has allowed for the recovery of certain costs.”

He and Guild noted state law allows agencies to waive fees if access to the information is in the public interest.

Guild said DHEC should follow the lead of the S.C. Department of Transportation, which said last week it was softening its once-rigid open records policies.

The agency said it no longer would impose staff time charges to research, retrieve or copy records, if the effort takes less than two hours. The agency still could impose those charges if requests took staff more than two hours to respond. But the roads department said most requests don’t take that long. Efforts have also been underway in the Legislature to change the law, although that effort is stalled.

In his letter to DHEC this week, Guild said the environmental agency asks the public to comment on proposed permitting decisions that affect the land, air and water. But the department has begun assessing charges for the right to look at public documents people need to make informed comments, he said.

DHEC’s “recent change in policy to impose such charges, not historically imposed, represents a retreat from transparency for an agency that is responsible for inviting and considering public participation in much of its decision making,’’ the letter said.

Guild’s dustup with the environmental agency isn’t his first over access to records. Guild in the past has been critical of the agency for limiting access to records of a nuclear waste dump in Barnwell County.

This story was originally published April 8, 2016 at 11:03 PM with the headline "DHEC open records policy under fire."