If you think the state’s Freedom of Information Act is running smoothly and everyone in public office is on board, think again.
The S.C. Policy Council did an experiment to find out how responsive 11 state agencies are to requests for information under FOIA laws. The agencies were Clemson University, Medical University of South Carolina, University of South Carolina, the state House of Representatives, the state Senate, Department of Education, Department of Commerce, Department of Transportation, State Ports Authority, Santee-Cooper and S.C. Research Authority.
On Nov. 8, 2016, the Council asked for the following from each agency:
-- The number of FOIA requests the agency has received in the past three fiscal years.
-- The number of FOIA requests to which the agency has 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.
-- An itemized list of each FOIA charge that was collected in the past three fiscal years and a detailed summary of how the funds were spent.
The results ranged from good to nothing short of disturbing.
Some, such as the State Ports Authority, had a next-day reply with all questions answered. Others took a little longer to compile the information, but complied with the request nonetheless.
But let’s cut to the disturbing responses. Or lack thereof.
The Department of Education responded to the S.C. Policy Council’s request the very day it was received. Responding, however, does not equate to being responsive. You see, under the state’s FOIA law, a response can simply be a statement of fact, such as “We are in receipt of your request for X.” That agency’s chief communications officer told SCPC “... our records retention policy filed with the state requires us to maintain Freedom of Information Act records for one year. I will be sure to let you know the availability of the documents requested within that one year timeframe.” Nothing more was said or done, and SCPC still waits.
That might be a common thread that runs through the halls of education.
The University of South Carolina never even responded to the Policy Council’s request. In fact, it did not even acknowledge receipt of the request. That in and of itself is a direct violation of the state law. And, under the FOIA, a lack of any response is akin to forfeiture of any right not to disclose some or all requested information. In short, everything requested should be given to SCPC.
Just up the road at Clemson University, a similar echoing of the sounds of silence. Clemson did at least respond Nov. 30 to say it would supply whatever information was required to be supplied under state law, but to date nothing has been delivered.
As is common, the two chambers operating beneath the Statehouse dome do not always see eye to eye. Case in point: the S.C. Policy Council’s request.
The House responded within the allowable 15 days from receipt of the FOIA request, adding the caveat that there were five instances in which a House member claimed an exemption under FOIA section 30-4-40(a)(8). That section of the law relates to “memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs; however, nothing herein may be construed as limiting or restricting public access to source documents or records, factual data or summaries of factual data, papers, minutes, or reports otherwise considered to be public information under the provisions of this chapter and not specifically exempted by any other provisions of this chapter.”
The Senate is a different story. While it did reply within 15 days, it applied the same section of the FOIA law to claim a total exemption.
“To the extent that any public documents responsive to your request exist and are in the Senate’s possession, those public documents are exempt from disclosure.” The Senate’s response went on to say, “Furthermore, your request for names and other identifying information constitutes an unreasonable invasion of the personal privacy of those making request which likewise makes those documents exempt from disclosure.”
In essence, the halls of the state Senate apparently are hallowed and the public has no right to know who has requested public information from that body, how much it charged anyone for information given under FOIA, how many FOIA requests it even received (well, we at least know the Senate received one request, that coming from SCPC) and so forth.
Taxpayers should derive great discomfort from knowing the state Senate thinks itself above state law. And what can you do about it? Not much. The most you can likely do is make your thoughts known on Election Day because the state’s FOIA comes with gums, not teeth. There is little to no punishment to mete out and a lawsuit comes at great cost in terms of time and money when any public body flouts FOIA laws.
And you wonder why meaningful reform to our state’s FOIA comes at a sloth’s speed, if at all.