Another SC FOIA audit has too many failing grades

 It's nice to know that in South Carolina, the more things change, the more things stay the same, at least when it comes to state agencies' arrogance over the S.C. Freedom of Information Act.

When I supervised the first statewide FOIA audit at the AP almost 20 years ago, we found widespread violations (and even creepier stuff, such as police or sheriff's offices running license plate checks on those asking for basic information that is routinely supposed to be public, even without a request).

During the years, my reporting classes have routinely tested local police and sheriffs, with the same scofflaws, led by Columbia, at the bottom every time.

The SC Policy Council recently ran its own limited test. First, the conclusion because it is important and because I don't want it to get lost at the bottom:

There simply aren’t that many FOIA requests for agencies to deal with. One of the most popular arguments against tightening the state’s FOIA law goes something like this: If you require agencies to respond more substantively to requests, those agencies’ public information offices will do nothing but respond to fishing expeditions by people looking for scandal. Our study doesn’t support that conclusion. Only the Department of Transportation received a significant number of FOIA requests; other agencies received far fewer. As for DOT, a $2 billion agency with a robust public information office should be able to handle 400 or 500 requests in a year.

So here's what the Policy Council did:

On November 8, 2016, we asked for:

► the number of FOIA requests the agency has received in the past three fiscal years;

► the number of FOIA requests to which the agency the responded by producing documents over the past three fiscal years;

► the names/identities of those who have submitted FOIA requests to the agency in the past three fiscal years;

► an itemized list of each FOIA charge for the past three fiscal years; and

► an itemized list of each FOIA charge that was collected in the past three fiscal years and a detailed summary how the funds were spent.

The state agencies were these: Clemson University, the Department of Commerce, the Department of Transportation (DOT), the Department of Education, the Medical University of South Carolina (MUSC), the State Ports Authority (SPA), Santee Cooper, the South Carolina Research Authority (SCRA), the University of South Carolina (USC), the South Carolina House of Representatives, and the South Carolina Senate.

The results -- and keep in mind that South Carolina's law has a 15-day limit for the agency to acknowledge the request but no actual time limit on when the agency must produce the records (the grades are mine based on something similar we did with the AP audit):

•  Clemson: Said it got the request, never provided the records. Grade: D
• Commerce: Generally provided the information, but cited 52 cases of exemptions. However, Commerce does have a broad exemption for economic development deals in progress. So, even though I'm always somewhat skeptical because that exemption has been abused, give it a good-faith effort. And it did supply requesters' names, so it earned a B.
• Transportation: Provided most of the info, but refused to supply the names, citing the law's privacy exemption. Because that privacy claim is doubtful (more on that later), a C+.
• Education: Said it got the request, never provided the records. Grade: D
• MUSC: Said it got the request, never provided the records. Grade: D
• Ports Authority: Responded fully. Grade: A.
• Santee Cooper: Responded fully. Grade: A.
• Research Authority: Responded fully except for one request. Again, because it deals in areas where the economic development exemption could creep in, grade it A-.
• University South Carolina: Did not even respond. Grade: F.
• S.C. House: Responded fully within the law's constraints, except that five members pulled the "legislative memoranda, communications, etc." card from the deck and blocked their specific information. Does that exemption rankle? Yes, but it is on the books and at least the House leadership and staff tried. Grade: B.
• S.C. Senate: Pulled a blanket memorandum exemption and piled on with the potentially bogus personal privacy exemption. Grade: F

So if you're plotting out the grades in this class:
 A/A-: 3 .... B+/B: 2 ... C+/C: 1 ... D: 3 ... F: 2

A D is considered failing in your major, and government agencies' "major," as said clearly at the top of the FOIA and in court decisions, should be serving the public interest with disclosure. That 45% of the class has failed says a lot. On the other hand, there are also 45% A's and B's, which were rare in the original audit. So dum spiero spero.

But in this, the "So Sue Me (repeatedly, most likely) State," it has been difficult to get lawmakers, even those intent on improving the FOIA, to understand the extent to which the privacy exemption is being abused - and the extent to which the abuse is growing.

The Columbia Police Department is the champ in this area, blocking records that clearly should be open, even without a request. But there are plenty of other agencies and departments not far behind.

That link has a detailed discussion. But a quick recap:

• Private information in public records must be segregated and the rest released.
• S.C. courts have shown an inclination to narrowly construe any privacy exemption and certainly not extend it to matters of any public interest. (The attorney general's office looked at the court record and basically told a sheriff to stop trying to invent exemptions, including privacy.) A crime victim would seem to be, as unfortunate as this is, a person of limited public interest. So would a person, to my mind, making an FOIA request:

As the state Appeals Court put it in the Burton case: Our Supreme Court has defined the “right to privacy” as the right of an individual to be let alone and to live a life free from unwarranted publicity.  Sloan v. South Carolina Dep’t of Pub. Safety, 355 S.C. 321, 586 S.E.2d 108 (2003).  However, “‘one of the primary limitations placed on the right of privacy is that it does not prohibit the publication of matter which is of legitimate public or general interest.’”  Society of Prof’l Journalists v. Sexton, 283 S.C. 563, 566, 324 S.E.2d 313, 315 (1984) (quoting Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956)).  Indeed, the Court has held that, as a matter of law, “if a person, whether willingly or not, becomes an actor in an event of public or general interest, ‘then the publication of his connection with such an occurrence is not an invasion of his right to privacy.’”  Doe v. Berkeley Publishers, 329 S.C. 412, 414, 496 S.E.2d 636, 637 (1998) (quoting Meetze, 230 S.C. at 337, 95 S.E.2d at 609).

• Who is making FOIA requests is a matter public interest, both to see if a handful of requesters are flooding the system and as another check on power and influence. Institutions (companies, foundations, etc.) generally don't spend their time and money making FOIA requests unless they are researching a matter of deep interest to them, which also usually means it or will become a matter of public interest.

 I know bad cases make bad law -- I'm always afraid of that. And nothing is a slam dunk when it comes to privacy, especially in these days of national security hacking and wiretap revelations.

But I sure wish some player with enough resources to wait out what could be a protracted court case can find a named plaintiff and take on one of these "failing" agencies or the Columbia cops. Until then, periodic FOIA audits are likely to be South Carolina's own "Groundhog Day."

When we call something "public," let's be precise

So this arrived in my inbox this morning
"Ga. journalists arrested for filming during open meeting; may face jail time"

Damn.

And it links to this, with the headline:

Georgia Citizen Journalist Facing Criminal Charges for Recording Public Meeting

And, yes, there should be lots of outrage over this. Watch the video (I've included it directly here as well).



And I very much hope Tisdale wins her lawsuit and bleeds them dry.

But we need to be accurate when we call something a "public" meeting. This was the note I wrote to the SPJ official, Sharon Dunten, who sent this out:

 Sharon:

With all due respect, and very much acknowledging that the officer's behavior here seems beyond the pale.

A political rally on private property is not a "public" meeting. Whether it was advertised as such and so she was there by invitation, and thus the trespass is bogus, is, unfortunately, a matter to be adjudicated (or, one might hope, dropped by a sane prosecutor, which does not seem to be the case). Whether it was advertised as "public" is a point of evidence and perhaps law in that adjudication -- once one invites the public, may one then decide to kick part of the public out? But inviting the public  does not mean that one relinquishes the right to control numerous aspects. (e.g.: "No shoes, no shirt, no service").

Yes, there should be outrage directed at the deputy. Yes, it's BS to invite the public to a rally like this and then expect a reporter with a camera not to be there (if she had just had a notebook, would she have just blended in and  been ignored? - serious duplicity for which the organizers should be called to heel).

But let's not weaken the case and diffuse what should be focused outrage by calling it a public meeting. Let's save that for when this kind of stuff happens at real public meetings where the law is crystal clear so that so we have an even clearer case. It is entirely appropriate for us to be outraged at this. It is not good for us to bandy about the term "public," thus weakening, not strengthening, its meaning. Bad cases make bad law -- and bad statement of the facts makes bad practice.

Doug Fisher

In memoriam: John Shurr, journalist and AP bureau chief

I had the opportunity to work with three great AP bureau chiefs who had my back in my 18 years with the wire service, the last being John Shurr, with whom I spent nine years in Columbia.

So I was saddened to hear of John's passing tonight.

It, unfortunately, was not a surprise; those of us who knew John knew he was in declining health, quite possibly from the Agent Orange he was exposed to during the Vietnam War.

John and I dealt with the craziness of Susan Smith, the madness of the James Jordan death investigation, women at The Citadel, numerous hurricanes, video poker, lowering the Confederate flag, the Republican wave that took over state government ...

Fun times, those.

And through it all, I knew I could always go to John for advice and support. It helped that we both had been in charge, at separate times, of the AP's Rhode Island office. In recent years, he and I would often exchange emails chortling at the continued parade of buffoonery by R.I. politicians and lamenting the slow, painful decline of the Providence Journal, at one time one of America's best local papers -- but sometimes overlooked as it was in the umbra of the major-major metros of the East Coast.

He's best known in South Carolina for his efforts on behalf of freedom of information, an indefatigable defender of the right of the public to know what its government is doing. And I would hope that in his honor, the Legislature this year would finally pass many of the needed changes to South Carolina's FOI law that include a quicker review process, more reasonable costs and a clear and certain window in which time records must be produced. (And, of course, there is the need to overturn the state Supreme Court's troubling decisions on meeting agendas and autopsy reports.)

And as a result of his dedication, in the late 1990s the AP coordinated the first statewide FOI audit in South Carolina that found, as we put it at the time, agencies would get no better than a D if graded on the public schools' grading scale. We found all sorts of obfuscation and harassment, including police demanding IDs from and running the license plates of those requesting records. Sadly, things have only gotten worse.

That was John's public face.

But in the bureau, he was about as good a CoB (AP lingo for chief of bureau) that you could get. He was no more than 15 feet away in his glass-walled office, complete with the picture of his sailboat, his pride and joy, tossed onshore by Hurricane Hugo. (John got a replacement -- "another hole in the water into which you throw money" -- and he tried several times to get me to crew with him. But I always managed to avoid that -- his reputation as Captain Bligh was not entirely undeserved {grin}.)

 But John always gave you enough room to do your job.

Oh, there was no mistake he was paying attention, as evidenced by those occasional "got a minute" calls from the inner sanctum. But you could always count on the fact that when you needed the resources, John would blow out the budget and ask permission (or forgiveness) from AP's headquarters later.

Then there were the years when the AP bureau was like Switzerland, caught in the middle of the Columbia-Spartanburg-Greenville-Charleston newspaper war. There were some strong personalities involved, and afterward he and I would often joke about the S.C. Press Association meeting where the editors started challenging each other -- one had a tight grip on a chair he looked as if he were about to throw -- and John and I just knew, in horror, we were going to have to break up a fight. John, in his way, was able to calm everyone down.

And when the folks in New York thought they knew their jobs better than you, John never hesitated to remind them that -- under the old AP -- a CoB ultimately held the stronger hand and to back down.

That went so far as the AP's managing editor. A former ME who shall remain unidentified here (but every ex-APer knows) used to write a weekly review, a sort of after-action report, called "Dialogue." It was pretty much a one-way conversation, however. It praised "good" work and took bureaus to task when the ME or the general desk felt they had fallen short (often, as my fellow news editors observed, without asking for explanations).

After one winter ice storm, we got blasted. Long story short, our "story" was on the coast, where we knew high winds were blowing salt spray inland, shorting out numerous electrical transformers and leaving thousands dark. We had ice and some snow in the Upstate, but not as many people were affected - the storm that was panicking New York, which was expecting a direct hit, gave us only a glance. We were shorthanded, and I decided it would be foolhardy to call someone in on overtime and make them drive into those conditions. So we concentrated efforts on the coast and used the phones to gather some great material from the Upstate, so good that New York used two of the quotes in its national story. But we got nailed for not enough effort.

I wrote a lengthy challenge. But John summed it up with a short, pointed note to the ME: "Please cancel my subscription to Diatribe."

That was the kind of person, boss and colleague John was. He will be sorely missed. Karen's and my thoughts and condolences go out to his wife, Debbie. And I'm proud to have worked with a journalist's journalist.

SC FOIA: The legislative exemption

The Nerve has an interesting piece this morning on a big exemption to the state's open-records law as the legislature moves forward to close some holes punched in the FOIA this year by court rulings.

This one puts much of the Legislature's correspondence off-limits.

It's a tough nut: While I tend to not want to delve into the average Joe's or Jane's plea for help with , say, a workers' comp claim, I sure would like to know if the Koch brothers are trying to influence folks.

And this from state Sen. Brad Hutto is a bit disingenous: “Ultimately, all we do is public. ... How we come to a decision may not be totally public, but when we actually vote, it’s on the record.”

That would be the point -- the coming to is often far more important than the final vote.

FOIA: Another little chip away in South Carolina - criminal suspects' birthdates

S.C. officials will find any way they can to withhold more information, it seems. This from The State newspaper this week:

The S.C. Department of Public Safety said it no longer will release the date of birth in incidents the agency handles.

Failure to provide that information makes it nearly impossible for the public or the media to determine whether a suspect or victim has a criminal history. SLED requires the public to provide a date of birth to do such a search.

The agency’s legal staff cites two state laws to bolster its decision: The Family and Personal Identifying Information Privacy Protection Act and a financial identity fraud law.

“Insofar as the FPPA precludes the agency from releasing a date of birth, its provisions supersede any release that would be required by FOIA,” Public Safety spokeswoman Sherri Iacobelli said, referring to overriding the state’s Freedom of Information Act (FOIA).

The crime of identity theft lists 10 examples of personal information that can be used to steal financial identity. The lists includes bank account numbers, Social Security and driver’s license numbers and credit card numbers. The last example cited in the law for personal identification is a date of birth.

 We can debate victim's birthdates. But when someone has been charged, I don't think their privacy is in the mix

Update
Wes Wolfe had some interesting insight on Facebook in reaction to this post:

I've seen this sort of crap from law enforcement agencies and it's infuriating because it's so unnecessary. It's a way of asserting control of a piece of information that makes your job harder specifically to show they have control and can make your job harder.

Currently in North Carolina when an agency does this I can check court dates on the state courts network or check the state DPS site -- if the suspect had a previous conviction that resulted in probation or prison time -- and get the DOB like I should have 10, 15 or 30 minutes earlier. It's creating and/or aggravating an adversarial relationship between law enforcement and the press when there doesn't need to be one.

Considering the number of times people with the same name or fathers and sons both have current charges or convictions, DOB goes a long way toward making sure the right person's identified.

Read more here: http://www.thestate.com/2014/09/09/3671227_officials-silence-on-trooper-shooting.html?rh=1#storylink=cpy

FOIA: Kudos to The State for laying out the problems

The State newspaper, in conjunction with McClatchy's chain-wide news service, does a good job today of laying out the abuses of using "contract" workers in the construction industry.

But deserving of just as much of a kudos is the paper's sidebar, Getting records from Columbia Housing Authority is expensive, slow, that lays out how agencies do their best to make it hard to get information. In this case it was charging more than $1,400 for the records in which the Social Security numbers were redacted.

One thing that might have made this a bit stronger was taking the $1,075 for copying costs and dividing it by the number of pages (three boxes of records) to show how much the Columbia Housing Authority wanted per page. Since the authority also charged for workers' time, the only copying charge should have been for actual copying costs -- and anything over a nickel or, possibly, a dime (next thing, FOI the agency's copier contracts to see what it is paying) is suspect.

We need to do this more, every time we run up against this kind of thing. And we need to make sure it is framed in a way that says it is the public, not journalists, who are being cheated.

Also in the story is the state's refusal to release audits or much other information because of the legal opinion that federal law makes workers' comp info private. However, there are a string of state and federal court cases also saying in general that off-limits info can be redacted and the rest released. This is why I do hope to win the lottery so I can establish an FOI foundation that will have the primary mission of providing low-cost or free legal assistance so these cases can be litigated quickly and often. Without that, it's sort of like the chocolate candies in Candy Crush -- the dodges just keep proliferating until they take over.

Getting records from Columbia Housing Authority is expensive, slow
It wasn’t easy or cheap to find out how many companies classified workers as independent contractors on the controversial Village at River’s Edge project and another project financed with federal stimulus dollars.

After receiving a Freedom of Information Act request, the Columbia Housing Authority took more than four months to supply three boxes of records to The State newspaper. The authority also charged the newspaper $1,425 for the right to review the documents. The newspaper paid the amount under protest.

State law allows public bodies to waive fees for documents when the information sought is in the public interest, but the authority chose not to do so.

The authority said it had to copy payroll sheets so it could redact the Social Security numbers of workers. The authority’s bill included $1,075 for copying costs. The remainder of the cost was to pay for staff time to prepare the records, the authority said.

Neither the Housing Authority of the city of Charleston nor the State Housing Finance and Development Authority charged anything for records they supplied. Each responded to the newspaper’s Freedom of Information Act request about a month after it was made.

Read more here: http://www.thestate.com/2014/09/07/3664301/independent-workers-raise-questions.html?sp=/99/205/&ihp=1#storylink=cpy

FOIA: Bill Rogers guest post

A guest post this week by the S.C. Press Association's Bill Rogers praising some school board members for having the backbone to walk out of a board meeting that might have been illegal.

As you read through consider the lawyer's comment, which brings to mind the retort, Well, if you'd stop practicing the law and actually become proficient at it ...

Lowcountry board members show guts to leave secret meeting they thought illegal

By Bill Rogers
Three school board members in the Lowcountry took a courageous step last week when they refused to attend an executive session they felt was illegal.

If more public officials refused to participate in improper or illegal secret meetings, we would have far more transparency in government.

The secret meeting was to view proposals to renovate an old school into district administration offices to the tune of $1.6 million.

So what is the need for secrecy? Shouldn’t the public be privy to this presentation and discussion?

The action by the three came when the Jasper County School Board held a called meeting to hear contractor presentations for proposed new district offices.

Board members Tedd Moyd and Debra Butler walked out of the meeting early.

Board member Randy Horton said he did not show up to the meeting after reading the agenda because he did not want to be a part of any illegal actions.

Moyd disagreed with the board holding the meeting in executive session as opposed to a public meeting for residents to be informed.

“It should have been a public meeting,” Moyd said. “…This is public education, why are we holding meetings like this in executive session? It makes us look like we’re hiding something,” he told a local newspaper reporter.

Mr. Moyd hits the nail on the head. Too often board members don’t stand up to school superintendents and their lawyers, many of whom have no appreciation of the concept of open government in our state.

School board attorney Kenneth L. Childs has expressed concern that encouraging citizen board members to not attend what they thought was an illegal meeting was “encouraging public officials not to perform their official duties.”

The opposite is true.

Let’s hope other school board and council members recognize they, as individuals, have a duty to obey the Freedom of Information Act and stand up for open government.

When that happens, the public wins.

Childs wrote to complain that I was giving school board members incorrect lay legal advice.

SCPA Attorney Jay Bender said, “To the contrary, Bill was giving much-needed civics advice  –  advice that many school board members never receive.”

We don’t need backroom politics and secrecy…we’ve had enough of that. Let the sun shine in.

FOIA: PACER, federal courts' records site, deleting old records

Such are the perils of the digital age and our collective memory. The one thing that should be available for a very long time, the nation's court records, are now being deleted in some jurisdictions from the federal courts' PACER database.

(We can have a long discussion later about whether court records delivered digitally should be charged the usurious price of 8 cents a page.)

Together with efforts to broaden expungement of criminal records in some states, I fear we every so steadily are being overtaken by the philosophy of presentism, a dangerous thing.

Update 9/19:
Ars Technica reports the courts will restore the documents. 

SC FOIA: Score one for us

After the recent freedom of information setbacks in South Carolina, media lawyer Jay Bender points out a new state Supreme Court ruling that puts some teeth into the law's 15-day rule and gives us a tool to at least force agencies to make a quick determination on whether records are open.

The records still do not have to be produced within 15 days, but by requiring a final determination, it opens the route to be able to quickly move to the courts to adjudicate any adverse agency opinions that records are not open. (And it opens the possibility of attorney's fees.)

But then, sigh, there's this little dodge to openness proposed by S.C. State's board chairman.

FOIA: Call for grassroots effort in SC

Don Kausler, regional editor of the Morning News in Florence, has taken up the call that changing SC's wounded Freedom of Information Act has got to be a full-time, concerted effort in which we get the public involved, not just a one-of Sunshine Week effort.

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.

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.

Body blow two to S.C. FOI

A few weeks ago, it was a ruling by South Carolina's Supreme Court saying that public bodies were not required to post meeting agendas that punched a hole in South Carolina's FOI law.

Now it has ruled that autopsy reports are medical records not subject to disclosure. (PDF of ruling.) While I felt the last ruling was defensible because of a poorly worded law, this one is just bad public policy. As reported in the Sumter case in question, the autopsy report the newspaper eventually got elsewhere seemed to contradict the police explanation in a man's shooting.

This is one where I think Justice Costa Pleiconas got it right in dissent -- that other parts of state law indicate the intent is that these be public.

As Justice Kay Hearn said, it's a matter for the Legislature. And maybe two in a row will persuade newsrooms in the state that it's poor strategy to do most of the FOI drum beating largely one week a year. As the tough road to change the law in other areas the past two years shows, this is a battle of attrition.

For starters, every newsroom should include specific FOI questions on every candidate questionnaires going out to legislative candidates this election season. They should include these two FOI issues. Don't give any room to vapidly prevaricate.

And then work with the press association to assemble a short weekly roundup of FOI issues in the state. It already has the info in its newsletter -- every paper and news website in the state should run it, perhaps under a suitably in your face head like Where you were denied vital information this week.

Broadcasters have tended not to be as involved in these issues just because for many, if it bleeds, it leads, and press release journalism or the quick official statement is the M.O. (Though it's nice to see that changing a bit as some consultants see an opening in positioning stations as "investigating for you" -- for a few ratings books at least.)

Newspapers have tended to try to play the clubby game at the Statehouse. On one hand, they do push for more openness. On the other, they are deathly scared the Legislature will take away their sales tax exemption.

But it's time to be more aggressive. The FOI, despite its vaunted opening language, is being hacked to bits from rulings like this and from open defiance from agencies like Columbia police who refuse to make copies of reports available for inspection, as the law allows. (That's another situation where I fear the court might overbroadly interpret the law's limited privacy exemption.)

If you believe in public information, it's time to put up or shut up.

FOI: A problematic S.C. ruling

South Carolina's Supreme Court has come down with a Freedom of Information Act ruling (PDF) that is problematic.

I choose that word carefully over "troubling" because I don't think the ruling is wrong. But I think it outlines starkly the reality of the "official" attitude toward conducting public business and the confrontational situation that we often find ourselves in -- as journalists and the public -- with governmental bodies.

A Saluda County resident challenged that county council's amending of a meeting agenda during a meeting. The Circuit Court said there was no violation -- that no agendas were even required for regular meetings.

The state Appeals Court overturned that, but the Supreme Court has now ruled the circuit judge was right.

I agree with the ruling from a legal standpoint. There is a problematic phrase in South Carolina's FOI law: Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board ... 

Those two words, "if any," allow for lots of mischief. They are a reminder that little phrases in complicated laws can come back to bite you on the butt.

But there is a greater philosophical backdrop here, one that contrasts what seems to be a prevalent view once people get into office versus this gauzy ideal we have of government acting for the public and under public scrutiny.

The Supreme Court helpfully reminds us in its decision that there is no common-law right to attend the meetings of government bodies. Put simply, you are let in only if the governmental body wants you there.

This goes against what I think a lot of people (and journalists) hold as "common wisdom" -- that they have a right to watch their government in action. No such thing.

Were there a common-law right, then there would be the presumption of openness, and any closures would have to be specifically legislated. Instead, as the court noted, the state and federal governments have had to legislate specific instances of openness through FOI laws. No matter how much such laws may declare that it is the intent of the legislators to have open government, as South Carolina's does, there is that reality always in the background that there is no right.

When you need specific legislation, the devil is in the specifics, and thus the case that little phrases like "if any" can come back to cause big problems.

Here's what I tell my students when I send them off to cover their first city or county council or board of education meeting: Keep in mind that this council or board is not meeting for your benefit. They are suffering your being there. You are merely being allowed to watch as you would a play. It's kabuki.

The problem, of course, is that without an agenda, it's hard to follow the action. It's like watching a play without a playbill: It can be tough to follow the characters and even the plot. That might be acceptable in the theater; it should not be acceptable in a country that at least gives lip service to the idea of a democratic society.


Having regular meetings without an agenda or where agendas can be changed at will just invites mischief or worse.

Journalists are fond of revving up their PR engines once a year during Sunshine Week, and maybe occasionally at other times, to point out that FOI laws are there for the public's, not just journalists', benefit. But the education must go deeper than that.

 Sometimes I think people find us weird: Of course we live in a democratic society, so why are you making such a big deal about things being "open"?

That "public" we like to refer to (unfortunately, sometimes condescendingly, if you've ever been in a newsroom) has to understand that the default position is not open but closed government.


The law may be an arse, but we are bigger ones if we don't make it a full-time job getting that message across.

Latest in trend study of journalists - why this one point bothers me

I had a chance the other day to read Indiana University's (I'm an alum, BTW) summary of the latest in its long series of studies of journalists, this one called "The American Journalist in the Digital Age." (PDF)

The full book is due out next year and follows on the last one, "The American Journalist in the 21st Century."

I was surprised by a few things, such as less emphasis on getting the news out quickly, in an age when the hamster wheel seems to be spinning ever faster. As I thought about it, however, it made some sense (or I was able to rationalize it) -- journalists are an ornery bunch, so it shouldn't be surprising that when the business seems to be putting more and more emphasis on getting it out now - and damn the verification in too many cases -- they'd answer that it wasn't so important to them anymore.

But there is one point that really bothers me. It's under the "controversial practices" section, lumped in with things like using personal photos and documents without authorization, using hidden cameras, paying people for information and pretending to be someone else.

That measure is "using confidential business or government documents without authorization." And those saying it "may be justified" has gone from 81.8 percent in 1992 to 57.7 percent today. (A good summary is at The Wire.)

Maybe that's "controversial." Count me in the camp that says it should be "de rigueur."

From the Pentagon Papers to Glenn Greenwald, with many people like Eric Nalder in between, some of the most important journalism of our time has been done only by getting those confidential papers and exposing them.

(Even Nalder's excellent "Breaking and Entering: How to dissect an organization," while it largely outlines public sources, has this nugget : Whether you are using FOIA with a government agency, or a mole at a private company, get your hands on the memo traffic.)

While I applaud the much greater use of the FOIA and data techniques, it remains reality that much of the "truth" that we seek remains buried in locked (now-digital) file cabinets.

I'm not sure why this is. But I see it among some of my students, too -- a corruption, if you will, of being in the age of vast information and data. That can lull journalists into thinking all that is great and good is just a few mouse clicks away and blind them into thinking that somehow it is "improper" to dig further.

It's hard, after all, to do those things Momma told you not do to -- be impertinent, ask hard questions, talk about politics and religion, ask a person's age, tell me how you know that. But that's our job description.

And so the IU results bother me greatly.

W.Va. court trashes states FOI law

If you have any doubt that freedom of information is transforming itself into "freedom of information only for those who pay," read Corey Hutchins' piece in CJR.

http://www.cjr.org/united_states_project/what_can_we_do_when_a_state_foi_law_takes_a_hit.php?page=all

I think this is the direct result of looking at government as a "business." It is not, and "governing" is not the same as running IBM. It's one of the fatal flaws of the city manager form of government, too.

(Still waiting to win the lottery so I can form the Palmetto Freedom of Information Foundation, aka "Sue the SOBs" Foundation.)

FOIA - dealing with information deniers

Worth printing out and saving - Jay Bender tips on dealing with those who seek to impose onerous requirements to get public info.

http://www.scpress.org/13eBulletin/bender1010.pdf

FOI: James Brown estate case gets CJR attention

The smelly pile of legal compost that the estate of soul singer James Brown has turned into has gotten some national attention for the Newberry Observer freelance reporter who has been dogging it for years.

Columbia Journalism Review had turned its sights on Sue Summer's battle against subpoenas from the state attorney general's office. Summer has been reporting on the attempts by the AG's office to block open-records requests from a former trustee of the Brown estate.

Current AG Alan Wilson is pursuing the case against Summer, seeking all her notes and other records of conversations. It was Wilson's fellow Republican, predecessor Henry McMaster, who stepped in to reapportion Brown's estate after all sorts of allegations of misappropriation of money went flying.

The crux of the battle is whether Tommie Rae Hynie was married to Brown at the time of his death and is entitled to some of his estate. McMaster's creation of a new trust to oversee the estate gives her a piece of the action.

CJR's interest apparently was drawn to the case by a recent story by Columbia's Free Times.

(The Observer has a history as an aggressive paper, having sued the state and won a key FOI case victory many years ago that established that state agencies can't issue blanket denials for records because parts of them might be exempt. But, according to the articles, the Observer isn't providing Summer any legal help in this case.)

Oops - here's how they spin you

Note to one of South Carolina's best-known PR firms: It's probably a good thing to mark the parts of the advice to clients that you don't want forwarded to the news media.

The case under consideration is that of a reporter for The Nerve, a reporting site run by the very conservative S.C. Policy Council. I've been vocal in my criticism of the site's prosecutorial tone and need for good editing.

But it is one of the few reporting organizations actually trying to hold officials', especially state officials', feet to the fire.* On balance, its flaws are more of overzealousness, and the former traditional media reporters working there tend to try to keep the policy council's politics out of it. (They're smart enough to realize their credibility would be less than zero if they did.)

(It is often argued by the targets of investigative reporting and aggressive questioning that the reporters are being political and biased, but I'd say the definition depends on whose ox is being gored.)

The story in question is a look at some of those behind the top salaries in state government, most of them at South Carolina's colleges and universities (all of the top 10 -- in fact, all those earning over $200,000 -- are in higher ed, according to the story; the governor, by contrast is No. 1,739).

Of course, the reporter -- a former student -- wants to talk to all those on the list he is going to cite as examples. In particular, he asks for an interview with Jay Moskowitz, the state's second-highest earner at $392,135. A phone call to Health Sciences South Carolina, where Moskowitz is CEO, produces the answer to email the questions. HSSC is a statewide biomedical research collaborative.

Unfortunately, the administrative assistant emailed back the entire response document from that PR firm I mentioned at the beginning. Here's the first page:

Always good to see the spin cycle in action. Reporters, if you had any doubts (and if you did, you've been in this business less than five minutes), here's how they like to spin you. (See the beginning of this piece for my thoughts that The Nerve has its faults but is not a partisan outlet.**)

The point, though, is just to illustrate the behind-the-scenes stuff that goes on to spin a message, no matter what the outlet.

It's also a good reminder why you should push back hard against demands that you do an email interview. Email has become the best friend of the obfuscation brigade, and the answers are almost guaranteed to such the life out of most writing.***

Here, by the way, are those last two questions and the "suggested" answers. I thought the questions were pretty reasonable and represent what would be readers' questions too:

Also worth noting in the story is how the University of South Carolina is flouting the spirit of the state FOI law.

  * See Jay Bender's excellent column in the SC Press Association about how S.C. news media need to grow a pair.
** No more, and actually a little less so, than Fox News or MSNBC are.
*** You will probably disagree with me, but I think news outlets should run at least once in every story that is forced to resort to email interview, something like "Smith would not make himself/herself available to answer questions. These answers were provided through email, so we can't be sure who actually answered the questions." (OK, the last part's a bit snarky. Drop it, but it is a reminder to reporters not to assume.)

SCDOT - calling George Orwell

You're got to love bureaucrats' reasoning, especially those at the S.C. Transportation Department and even more especially those in charge of making information available to the public.

Read, for instance, this story by one of my former students outlining the twisted trail he's going through to try to get the actual copy of a survey report the department is touting as showing public support for a controversial highway project near Charleston.

First is the absurdity that the document, in 2012, isn't available in electronic format. I didn't know they were still using monks at the University of South Carolina's Survey Research Laboratory to produce reports (no knock on the lab - I suspect it provided, or could provide, a Word doc or similarly formatted document to SCDOT).

But then there is this rather bizarre reasoning from the Transportation Department's FOI officer, Janet Tucker, about why it can't provide a copy for free in the public interest:

If you are requesting a waiver of costs for the documents, SCDOT respectfully declines your request. The FOI Act allows SCDOT to waive such costs where it determines that the waiver is "in the public interest because furnishing the information can be considered as primarily benefiting the general public.” While we recognize that your newspaper seeks to serve the public interest by providing news, this primarily benefits your own customers and your stockholders as opposed to the general public. In addition, because you are able to recoup your cost of doing business by the sale of newspapers, we do not believe it is appropriate for the State of South Carolina to underwrite the cost of the production of this information for you.

George Orwell couldn't have phrased it better. The retort from the paper:

Yeah, we can pay the $9.50, but it's a matter of principle. If the SCDOT has an employee whose job is to handle Freedom of Information requests, why is her research not already paid for by taxes?

Furthermore, why in the hell would a government agency in 2012 be unable to send a document electronically? We asked for a reason, but she has not replied.

So what exactly are the criteria for being in the public interest? Care to share, Ms. Tucker? Maybe even post them on your website? Is being a nonprofit good enough? (Note to The Nerve, maybe you should request a copy too and see what the reaction is? Or the Statehouse Report - oh, wait, it has ads now.) Or must you have monks on the staff ...

Update 9/14: The paper got the report electronically - Tucker said there was a misunderstanding over what DOT thought the reporter wanted - but was charged $9.50. Pocket change, really. But it does raise the question of a blanket base charge of $7.50 plus copying costs for a document transmitted electronically and that probably was sent electronically to the agency (copying costs for that?).