Tuesday, July 29, 2014

More SC FOIA follies from the AP's Jeffrey Collins

The AP's Jeffrey Collins provides this image on Facebook today of a North Augusta police report:

Here is his explanation:

I'm not a big fan of calling myself words like watchdog. But I do like to verify information governments want to give out. Sometimes it's not the whole story. Sometimes, it isn't true. I wanted to talk to the woman who called police on the 9-year-old girl at the park in North Augusta. Maybe she regrets the decision now. Maybe she saw something really dangerous that is not in the police report. But the Solicitor's Office blacked out all the identifying information about her. First off, it is likely illegal. Secondly, this is South Carolina, so your government is saying it knows best.
This was my response in the comments (slightly edited here):

This is very typical from what I've found in the spot audits my students do. It was also mentioned in The Sate's FOI piece this weekend.

What we have here is a clash of two sections of state law - the FOI and the privacy provisions. 

There shouldn't be a clash. But there is one, manufactured by too many agencies' legal guns and bureaucrats. As a result, the provisions of SC Code 30-4-30 http://scstatehouse.gov/code/t30c004.php that require police reports to be open for inspection without a written request are being undermined by  legal opinions or departmental policies focusing on 30-4-40, which deals with information of a "personal nature." Those (such as Columbia PD's) generally have advised that if certain information is private, the record must be redacted by the legal staff.

That triggers two things. As in the case of our experience with the Columbia Police, the claim now becomes that you can no longer just inspect the record for free, as the law allows. Instead, you must be provided a redacted copy, which the city then uses as an excuse to charge (for the staff time, of course).

And then there are the overreaching redactions, as you see here based on a very broad reading of 30-4-40(3)d exempting law enforcement material "endangering the life, health, or property of any person." Too many departments now say this includes all people mentioned in a report or, as in this case, the person who filed the complaint. Balderdash. All this is despite the language of the law that says bodies "may" but are not required to withhold such info and court and attorney general's opinions that say such exemptions must be construed very narrowly. I reviewed some of those here http://commonsensej.blogspot.com/2012/01/columbia-police-really-that-clueless.html

Especially of note is the attorney general's "Tanner" opinion (http://www.scag.gov/wp.../uploads/2011/03/06may23tanner.pdf). But the reality is that someone is going to have to sue over this, and given the recent state Supreme Court rulings, I'm not nearly as sure anymore that the privacy exemption might not be expanded, despite the precedents.

Collins follows up with this:
I see skirting or outright breaking of the FOI law in SC on nearly a weekly basis. There is no fear of it by public bodies any more. They aren't scared of being embarrassed and there is no fear of criminal sanctions. I keep my favorite police reports. Here's one from Walhalla, where the officer writing the narrative didn't feel all that inspired. 
He's right. There is no fear. 

While I'm all about the potential of the digital age, it has had unmistakable consequences for news orgs (and, in this case the public's ability to know) that I doubt we'll ever get back and that directly bear on this. (And that are not really talked about enough.)

The collapse of the monopolistic/oligopolistic financial model has left most limited in their ability to or unable to pursue the kind of blanket-bombing legal cases that might be necessary to stop this. (In other words, you sue the SOBs early and often, hoping to get enough lower-court rulings to send the message but also to establish a solid footing for a case to go to the state Supreme Court. And even if you get a favorable SUPCO ruling, as we can see with the S.C. Legislature's constant flouting of "local legislation" prohibitions, it might become a legal battle of attrition.)

Second, news media, thrown into the truly competitive marketplace (a good thing generally, I think), also find they no longer have the reality or, more likely, the perception that they can effectively mobilize public opinion. That really was the only thing in journalists' quiver that made public officials take notice. Politicians are like sharks in the water - they can smell blood a mile away, and it hasn't taken long for them to figure out that journalists are now more nuisance than threat. (Aside from the marketplace, journalists themselves have done their own damage to this with a series of scandals combined with failing early on to realize that their audience was moving on into the digital age. And some news orgs still don't totally get it.)

Collins  is doing his part by trying to publicize this regularly. But I hope more media outlets will do so. As I've said, this no longer can be a "Sunshine Week" thing. News orgs are going to have to get deep into the fray.

There's an excellent and readable (even though it's an academic paper) treatment of this (and the angst such activism provokes) in June's Journalism & Communication Monographs by Emily Erickson: The Watchdog Joins the Fray: The Press, Records Audits, and State Access Reform. (Unfortunately, as with many academic journals, it's not free unless you have connections through your local college or public library. But the abstract alone is worth reading, and I do recommend asking your library to get a copy if it does not have the database.)

Update: Good takeout on SC's FOIA issues from Jonathan Peters at Columbia Journalism Review.

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