AFTER LUGGING around my bootlegged copy of the infamous Bechtel report for nearly two weeks, I was finally ready to actually read the whole 130 pages of acronym-infested observations about engineering, construction, procurement and management decisions in the building of nuclear reactors.
But I couldn’t get past that insulting note stamped at the top of every single page: “CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED,” followed by two lines describing the law that had forced Santee Cooper to provide a copy to Gov. Henry McMaster.
Although Santee Cooper officials clearly added this stamp in an effort to ward off the threatened lawsuit from the hyper-secretive SCANA Corp., our state-owned utility had agreed from the beginning to keep the report secret — and to use the “attorney-client privilege” ruse as cover. The very first paragraph on the very first page of the report notes that Bechtel Power Corp. analyzed problems with the V.C. Summer nuclear project by way of an agreement not with the utilities themselves but with the utilities’ law firm, and declares that “Any disclosure” of the contents beyond the utilities and their lawyers “is not authorized.”
Indeed, “attorney-client privilege” is a familiar term at Santee Cooper.
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The agenda for the Sept. 6 special called meeting of the Santee Cooper board of directors, for instance, noted that it would be held in executive session “To receive legal advice about matters subject to the attorney-client privilege relating to new nuclear construction and to discuss employment matters relating to employee appointment, development and retention.”
The minutes for the Aug. 11 special board meeting — the one where the board decided to scrap already-approved rate increases — note that “Chairman Lord requested an Executive Session to receive legal advice about matters subject to the attorney-client privilege relating to 2018-2019 Rate Revision.”
The minutes for the July 31 special board meeting — the one where the board voted to abandon the nuclear construction project — note that “Director Wynn requested an Executive Session for the Board to discuss matters subject to the attorney-client privilege relating to new nuclear construction.”
Minutes for other meetings show similar motions.
State law allows governing bodies to meet in private to receive actual legal advice — not simply to have a policy discussion (Do we rescind rate increases or not? Do we cut our losses or keep pouring in more money?) with a lawyer present. The same is true of reports commissioned by a lawyer that use factual information to draw engineering, construction, procurement and management conclusions.
Unfortunately, Santee Cooper is not alone.
Unfortunately, Santee Cooper is not alone.
There’s nothing unusual about government agencies in South Carolina involving attorneys in matters that do not require attorneys, in order to claim attorney-client privilege and slap a “CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED” label on what should be public documents and discussions.
One of my favorite examples occurred when the Berkeley County school board decided it didn’t want the public to see what it thought of its superintendent. When Charleston’s Post and Courier asked to review the school board’s evaluations of the superintendent, the district refused, saying they were covered by attorney-client privilege. It seems that rather than doing written evaluations, the board members were interviewed by a law firm, which compiled the results. Which is something a secretary could have done.
The newspaper sued, arguing that the law firm was brought in for the sole purpose of fabricating a claim of attorney-client privilege to circumvent the public records law. Fortunately, the state Supreme Court saw through the ploy, and the unanimous court concluded that “the attorneys were only hired as a means to insulate the Board from FOIA compliance.”
‘The attorneys,’ the court said, ‘were only hired as a means to insulate the Board from FOIA compliance.’
The justices said that while state law allows government to hide some information “that would violate attorney-client relationships,” the burden of proving the information qualifies for secrecy “lies with the government.” The court also found that what qualifies for attorney-client privilege must be determined on a case-by-case basis, and “the exemptions should be narrowly construed to not provide a blanket prohibition of disclosure in order to ‘guarantee the public reasonable access to certain activities of the government.’”
The court continued: “The General Assembly, by the clear language of the statutes, believes FOIA should be broadly construed to allow the public to gain access to public records. The interest in confidentiality expressed through the attorney-client privilege should not trump the public’s right to know.”
But it does, as we keep being reminded. By Santee Cooper and other governmental entities.
Recall that just last year, the Richland County Recreation Commission claimed attorney-client privilege when it refused to let local legislators or the governor see an investigation into allegations of sexual harassment by former director James Brown.
The board members, along with Mr. Brown, have all been replaced. Which, come to think of it, isn’t a bad way to deal with public officials who try to hide behind their lawyers to shut the public out of the public’s business.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.