Thursday, June 19, 2014

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.



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