Friday, July 18, 2014

Not to pick a fight, but SCPA leader's FOI commentary misses important context

Bill Rogers, head of the S.C. Press Association, has written a forceful and important column on two recent state Supreme Court rulings that have done major damage to freedom of information in the state.

Bill is good and valued friend, and I don't want to pick a fight. And I agree forcefully with his frustrations over both these court rulings and trying to get any changes to the FOI Act through the Legislature.

 But I think the order in which he presents his argument is important when read with the court' ruling.

Bill writes:

The public also lost a few weeks ago when the high court ruled that not only could public bodies change meeting agendas at the last minute without notifying the public, but that agendas for public meetings were not even required.

I’m not a lawyer, but I’ve got enough sense to read this part of the FOIA: “All public bodies shall notify persons or organizations, local news media, or such other news media as may request notification of the times, dates, places and agenda of all public meetings…”

Pretty clear to a layman. But the court chose to focus on the wording for notification of regularly scheduled meetings at the beginning of the calendar year, where the wording said that notice must include the agenda, “if any.” If you announce a meeting to be held in October at the start of the calendar year, I can’t imagine having a meaningful agenda prepared. The law made it clear later that agendas must be available 24 hours in advance.

Problem is, the way the law is worded (poorly as it turns out), there is an entirely plausible other reading -- the one the court took.

Bill has structured his argument by moving the order of key points in the law.

Here is my reading of the law the way I understand the court to have read it. First, the law:
SECTION 30-4-80. Notice of meetings of public bodies.

(a) All public bodies, except as provided in subsections (b) and (c) of this section, must give written public notice of their regular meetings at the beginning of each calendar year. The notice must include the dates, times, and places of such meetings. Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty-four hours prior to such meetings. All public bodies must post on such bulletin board public notice for any called, special, or rescheduled meetings. Such notice must be posted as early as is practicable but not later than twenty-four hours before the meeting. The notice must include the agenda, date, time, and place of the meeting. This requirement does not apply to emergency meetings of public bodies.

(b) Legislative committees must post their meeting times during weeks of the regular session of the General Assembly and must comply with the provisions for notice of special meetings during those weeks when the General Assembly is not in session. Subcommittees of standing legislative committees must give notice during weeks of the legislative session only if it is practicable to do so.

(c) Subcommittees, other than legislative subcommittees, of committees required to give notice under subsection (a), must make reasonable and timely efforts to give notice of their meetings.

(d) Written public notice must include but need not be limited to posting a copy of the notice at the principal office of the public body holding the meeting or, if no such office exists, at the building in which the meeting is to be held.

(e) All public bodies shall notify persons or organizations, local news media, or such other news media as may request notification of the times, dates, places, and agenda of all public meetings, whether scheduled, rescheduled, or called, and the efforts made to comply with this requirement must be noted in the minutes of the meetings.  

The order in which those items is presented is important when courts start dissecting things. The section that Bill excerpts first actually comes last in the law. And there's the rub.

Here's another plain reading version of the  key points of the law that the court took:
  • If you're a covered public body, you have to put out a list of your regular meeting dates and times at the beginning of the year.
  • As you get closer to each of those regular meetings, you have to put up an agenda, if any, 24 hours ahead of the meeting.
  • This is different from special meetings, where the law clearly says you must post an agenda.
  • And if anyone asks you ahead of time to be notified you have to send them that information, including the agenda (if there is any) of any regular meetings and definitely the agenda of any special meetings.
The order of things is important because the court basically said that once the phrase "if any" appeared with "agenda" in regard to regular meetings, it modified that term subsequently throughout the law. That would include the passage Bill moved to the front of his argument.

Bill also argues, "But the court chose to focus on the wording for notification of regularly scheduled meetings at the beginning of the calendar year, where the wording said that notice must include the agenda, 'if any.'" He then sets up a logical straw man that no reasonable person could expect there to be agendas that far out and concludes, "The law made it clear later that agendas must be available 24 hours in advance."

But that's also a debatable argument. (In fact, were it that clear, this ruling probably would have gone the other way. The court helpfully included citations from several other states with clearer wording.)

If you look at the law, "if any" does not appear to apply at all to the yearly notice. In the opinion, the court parsed the next sentence to effectively distance it somewhat from the yearly notice requirement and focus on the 24-hour requirement. (In fact, the opinion went so far as to split the single paragraph into two "for readability," but I think there's a bit more to be read into the fact the justices felt they needed to make that emphasis.)

As a result, they concluded:

However, we agree with the circuit court and the dissent that the plain language of the words "if any" can mean only that an agenda is not required for regularly scheduled meetings.  To conclude otherwise would be to read the words "if any" completely out of the statute.  In plain terms, written public notice of regularly scheduled meetings must be given at the beginning of each calendar year and must include the dates, times, and places of the meetings. An agenda, if there is one, must be posted at least twenty-four hours before the meeting.
Bill doesn't like the ruling. Neither do I. But rearranging the law's language in making the argument drops context that was central to the court's ruling and leaves an otherwise important argument open to attack.

Ultimately, this is all folderol for readers who don't get into the legal niceties of all this. But in our anger, we produce things like this headline from the Kingstree News -- When is the next council meeting? I have no idea! -- that patently misrepresents what the court ruled (governmental bodies still must produce times and locations for their meetings). Or we denounce the court's decision denying access to autopsy reports as "irrational" and filed with "all sorts of legalese." Nothing was irrational in that decision and, yes, legalese is what court decisions are written in by definition. And if you have a problem with "legalese," let's discuss any number of court and crime stories in papers throughout the state almost daily.

The important thing is to reframe the debate, consistently and forcefully, so that we have some chance at building public opinion. That, of course, is the only thing we as journalists have in our quiver. It's all we ever had -- the ability, or at least the perception of the ability, to form opinion (this is not the same as a Fox or MSNBC bias - simply repeatedly uncovering public corruption using FOI laws, for instance, hopefully helps form the opinion to bring about change).

The reality for journalists, of course (and the thing too many still seem to be grappling with somewhere between stages two and four on the five stages of grief) is that, frankly, we're just not all that important anymore. Politicians and other public figures can easily go around us on social media or other channels. PR people can spread their version of things directly online. Our readers can find all sorts of things elsewhere.

This makes it all the more important that we stop framing this as primarily a one-week-a-year awareness thing in March. And that we stop just trying to play the clubby insiders' game at the State House (and at others around the nation where similar laws are under attack).

If we continue primarily down that path, the "house" (and Senate) always wins.

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