IT’S ONE THING even libertarians would agree that government does well: Hide information from the public.
That $1 million report that told Santee Cooper and SCANA they weren’t doing their jobs in providing oversight of their over-budget, over-deadline nuclear construction project. Secret.
Details of a $224,000 taxpayer-funded settlement the city of Columbia paid for mauling a resident’s yard. Secret.
Payments the S.C. House Republican Caucus made to the Richard Quinn & Associates consulting business that just pleaded guilty in the state corruption investigation. Secret.
The number of sexual harassment complaints the S.C. House has received from staff, from pages and from House members. Secret.
And of course videos that show police officers killing people — sometimes with justification, sometimes without. Secret.
The Legislature updated our Freedom of Information Act this year to make it tougher for cities, counties, school boards and state agencies to get away with keeping public information secret. The new law specifically requires police to release dash-cam videos unless they can convince a judge to keep them secret, for instance, although body-cam video is still secret. It also speeds up the court process, which should make it less expensive for people to go to court to challenge violations.
But more changes are needed, as we keep being reminded.
The most significant example of secrecy since the new law passed involves Santee Cooper, the state-owned utility that entered into an agreement with SCANA to build two nuclear reactors. When the project started falling apart, the companies hired a law firm to commission a study. The lawyer clearly was hired to let the companies claim attorney-client privilege and hide the report. Or, if you read between the lines, to force Santee Cooper to keep SCANA’s secrets.
Like unto this was Columbia’s agreement this summer to pay $115,000 in tax money to settle a lawsuit after workers cut down a trove of mature trees and shrubs without notifying the homeowner. (This after spending another $109,000 in tax money to fight the lawsuit.) The settlement included a gag order, which means the homeowner can’t talk about what happened without losing his $115,000 payment, and the city has a legal fig leaf that protects it from having to answer difficult questions about its actions.
I don’t think SCANA’s “attorney-client privilege” claim would have held up in court if anyone had known about the report earlier, and sued to get their hands on it. But of course you can’t ask for something you don’t know about. That’s also one of the problems with Columbia’s yard-butchering settlement, the details of which were right there in the courthouse records for anyone to see — if they knew to ask for them. Which the gag order sought to prevent.
Federal courts in South Carolina already refuse to allow gag orders on lawsuit settlements, and state courts bar them in cases involving public safety. But government should be held to a higher standard, and we shouldn’t have to rely on the courts to do that.
The Legislature needs to change state law to prohibit any government agency from entering into any sort of non-disclosure agreement. Not in a lawsuit settlement, as with the Columbia tree case; not with a business partner, as in the case of Santee Cooper. Perhaps there should some circumstances under which an agency could petition someone for approval to make an exception, but that would need to be a public process.
While they’re making improvements, legislators also need to change state law to make it clear that legislative caucuses are subject to the Freedom of Information Act, just like other entities that receive government support. The House Republican Caucus has always maintained that it isn’t, which is particularly troublesome since its members constitute a majority of the House, and so can make decisions in secret about how to change state law.
The Legislature also needs to clarify what qualifies for two of the most abused exemptions to the law. The Supreme Court has made it clear that you can’t just hire a lawyer and claim anything said in his presence qualifies for the “attorney-client” exemption, but that still happens. And even though the “personal privacy” exemption is so narrow that it doesn’t even cover all home phone numbers and addresses, agencies often act as though it prohibits them from giving out so much as an employee’s name. (Those exemptions don’t require secrecy; they merely allow it, though you’ll be hard-pressed to find a government official willing to acknowledge that.)
If lawmakers want examples of these abuses, they don’t have to look far.
When The State’s Maayan Schechter asked for numbers — not names, simply numbers — of sexual harassment and assault allegations the House had received since 2000 from pages, from staffers and from House members, the clerk’s office refused to provide them, saying that would “constitute an unreasonable invasion of personal privacy” (30-4-40(a)(2) and violate attorney-client privilege, because attorneys had been hired to investigate the complaints. Ditto a request for a “description of the alleged offenses for each case.”
Of course, Ms. Schechter didn’t ask for results of the attorneys’ investigations; it asked for the number of complaints from each of three groups — that is, information from the uninvestigated complaints themselves. And she left it to the House to describe the complaints in a way that didn’t reveal any identifying details, much less any “unreasonable invasion of personal privacy.”
The House did say that complaints had been filed against a total of three House members. But don’t hold your breath waiting to find out which three.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.