Sunday, March 19, 2017

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."

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