USC is withholding public documents and violating transparency law, lawsuit says

A South Carolina man has sued the University of South Carolina for allegedly failing to comply with open records laws.

Frank Heindel, of Charleston, alleges USC failed to provide a log of all Freedom of Information Act requests in accordance with state law, according to the suit filed Wednesday in Richland County.

“I think there’s a general malaise in properly maintaining public records that extends beyond USC,” said Desa Ballard, Heindel’s attorney.

S.C.’s open records law allows the public access to government documents with some exceptions. Access to public records allows citizens to make sure their drinking water is safe, determine the value of their homes and know how much government officials get paid. The public can also request a “log” of those requests, which should show whether the requests are being filled in the time frame required by law.

“The central purpose of FOIA is to make South Carolinians aware of the activities of public officials,” said Taylor Smith, an attorney for the S.C. Press Association who sometimes represents The State. “The public not only has a right to know, they have a right to know when they’re being stopped from learning.”

In response to the suit, USC spokesman Jeff Stensland said:

“While we do not comment on active lawsuits, the University of South Carolina is committed to transparency and adhering to the state’s Freedom of Information laws. The university receives a large volume of information requests and makes every effort to ensure inquiries are answered in a thorough and timely manner.”

Once a formal request is filed with the government, the agency has 10 business days to respond to the request and 30 calendar days after that to fulfill the request, unless the requester agrees to extend the deadline, according to S.C. law.

Heindel filed his request on Oct. 3, 2018, and received all of the requested documents on Feb. 1, 2019. The deadline for that request was Nov. 17, 2018. He also filed a request on Dec. 3, 2018, for similar records, which have yet to be provided in full, according to the lawsuit. The deadline for that second request was Jan. 16, 2019.

When The Greenville News requested the same type of documents from Clemson University, the university complied.

USC told Heindel the records were not held in one central place, but rather by multiple departments. Heindel and his attorney have records request logs from eight of USC’s departments, and aren’t even sure if they have asked enough departments for records, Ballard said.

“We had hoped to find a central log at the university... and we’ve been slowly getting stuff from them,” Ballard said. “There’s a lot that I don’t have.”

This isn’t the first time USC may have illegally delayed the release of public records. In August, The State published an article outlining the multiple public records requests that have been withheld longer than the legally required deadline.

Since that article was published, several of those public records requests have still yet to be filled. For example, on March 23, 2018, The State requested a list of all properties USC and its foundations own. A year later, the university has still not fully complied with that request. A May 16, 2018, request for the personnel file of a professor accused of sexually harassing a former student was filled on March 8, 2019, months after the legally required deadline.

On two occasions last summer, The State confronted USC President Harris Pastides regarding the withheld records. He promised to rectify the situation, but several requests remain outstanding.

For Heindel’s part, he is seeking damages from the university, but Ballard said this could be an opportunity for USC to fix its system for handling public records requests.

“I think this can be a win-win,” Ballard said. “If they create a central clearinghouse for FOIA requests, it only helps with transparency of the system.”