S.C. government officials often fail to comply with FOI law
The Associated Press
12.20.99
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COLUMBIA, S.C. — If you want to know what crimes are committed in your neighborhood, there's a good chance that in South Carolina you can't find out.
Want to check if someone's in jail? In some places you'll be told that's not your business.
Want to know how your taxes are being spent? Some city or county governments will say you can't see the records.
The Legislature says you're entitled to those records. Last year lawmakers changed South Carolina's Freedom of Information Act to make clear what must be immediately available so you, the taxpayer, can get a quicker and more complete look at how your police, your school districts and your government function.
All you should have to do is ask. The law doesn't require identification, oaths or a need to say why you want it.
But the law isn't working very well, based on the results of the first statewide check of compliance coordinated by the Associated Press and the South Carolina Press Association. In nearly one out of every three cases, when records were requested, they were denied or not produced within the law's time limits.
In one case, Union County sheriff's deputies traced the license plate of the woman making the request. The sheriff said the woman's request and questions had unnerved people.
In another, Anderson's mayor said he wouldn't provide the records because the person requesting them wasn't from there.
"I am puzzled as to the relevance of our expenditures in Anderson to your daily existence. With no visible connection to our community, I find this exercise useless," Mayor Richard Shirley wrote.
Shirley later said he was afraid it was a harassment tactic by anti-government groups.
"That illustrates the absolute arrogance of some people who shouldn't be in government," said Jay Bender, a Columbia lawyer who has helped shape the state's open-records and open-meetings laws.
In short, were South Carolina to be graded by the same standards it demands of its public school students, the 70% compliance rate would be a low D.
In many cases where records were supposed to be available immediately for the asking, especially jail logs and crime reports, agencies were given two or three chances to produce them.
"If you don't know what elected officials are doing and not doing, how would the electorate have an idea if they need to re-elect them or not," said Eldon Wedlock, a University of South Carolina constitutional law expert.
"The General Assembly finds that it is vital in a democratic society that public business be performed in an open and public manner," says the law, first enacted in 1978 and updated several times. It encourages "minimum cost or delay to the persons seeking access to public documents or meetings."
State Attorney General Charlie Condon also wrote to public officials: "When in doubt, disclose."
Along with jail logs and crime reports, meeting minutes are supposed to be available immediately.
For other records, agencies are supposed to tell you within 15 working days whether the records will be released. You're supposed to be able, for instance, to find out what your city manager has spent on cellular phone calls, what the terms of your school superintendent's contract are, or, if your district is hiring a superintendent, who the finalists are and their qualifications.
Those who asked for the records didn't say they were reporters or journalism students. They went in just like you would if you wanted to see if your government was working properly.
They made 363 requests for jail logs, crime reports, superintendents' contracts, meeting minutes and city and county expense reports. In 63 cases, officials refused to release anything. In the others, the time limit came and went without any records or response.
"I'm just shocked" at the lack of compliance, said state Rep. James Klauber, the Greenwood Republican who has worked to expand and define those records clearly open to the public. He wants changes in the law that would give citizens the right to quick court decisions when access to records is denied.
Local governments "do not want to disclose information. They want to keep in everything they possibly can," Klauber said.
The head of the state sheriff's association, however, protested that people normally don't refuse to say who they are or work for.
"I question whether or not your audit was done in an honest fashion," said Jeff Moore, executive director of the sheriff's group. Of course law enforcement agencies get suspicious when someone walks in and aggressively demands information, he said.
But, Bill Rogers, the press association's executive director, said: "This was an audit of public access and not of reporters' access." And if police and sheriff's deputies understand the importance of sometimes going undercover, he said, "It is ironic that they don't recognize that in this audit."
Reporters were told not to lie about who they worked for but were urged to avoid identifying themselves as journalists, Rogers said.
Violating South Carolina's law is a misdemeanor with a fine up to $100 or as long as 30 days in jail for the first offense. Do it again and it's as much as $200 or 60 days in jail and a third violation can mean a $300 fine and 90 days.
South Carolina's 70% compliance rate is similar to North Carolina's, where a study was done this summer.
A survey in Arkansas netted public documents in two out of three instances. A state-run, by-the-letter-of-the-law audit in Connecticut, which has a separate agency just to deal with freedom-of-information issues, found full compliance only a fifth of the time.
South Carolina is the same state that has fought federal efforts to restrict access to driver's license records, said Jane Kirtley, a University of Minnesota media law and ethics professor and former head of the Reporters Committee for Freedom of the Press.
The numbers reflect "the basic distrust I think people in government often have of the public" and how guarded they are about records, she said.
In South Carolina:
When crime records were sought from 57 sheriffs' and police departments, the requests were turned down on 25 visits — a 44% refusal rate.
On visits to 46 jails, logs of who was behind bars weren't made available on 16 visits, or 38% of the time.
About half of the city government officials did not provide expense reports within the time limit. Forty-two percent of county governments failed to comply.
- County council meeting minutes were denied about 14% of the time.
The law says it is in the public interest to provide records free or at reasonable cost. Most records available were free. But Berkeley County, citing an hour of research time, charged $32.50 for one page of the county supervisor's expense report.
In a third of the cases, public officials wanted to know who was making the request and why, even though the Freedom of Information Act doesn't require that.
School superintendents called around to try to identify who was asking. Law officers aggressively questioned the requesters.
When Susan Orr, a reporter for the Herald-Journal in Spartanburg, went to Union County for copies of a police property crime report and jail logs, the sheriff's department refused to open the logs but insisted on finding out who she was.
"Was I a victim? Was I related to a victim? Was I an attorney? Was I in the media?" Orr said.
She left after refusing to identify herself, but a deputy looked up her car's license plate, traced her to Spartanburg, checked with police there and found out she was reporter, Sheriff Howard Wells said.
Wells, who wasn't there when Orr visited, said the surveillance was necessary because she asked questions at so many places around the county she "had everybody on edge up here."
Authorities needed to know who she was if something happened, Wells said. "What if this person was stalking someone," he said.
Orr didn't get all the records she sought because she wasn't specific enough about what she wanted, Wells said. She asked for the jail log, for instance, but in Union County it's called the "jail book," he said.
Some of the requests went to the wrong people and for some records there is a chain of command that requests must follow, Moore said.
The open-records law doesn't say anything about chains of command, only that jail logs, crime reports and meeting minutes must be available if you ask for them in person and "without ... being required to make a written request to inspect or copy the records."
In Anderson, Independent-Mail reporter David Williams typed a request for expense reports from Anderson's mayor and city manager on plain paper and gave his return address in Seneca.
Shirley, the mayor, wrote back that filling the request could open his office "to responding to the same question from over two hundred and sixty million Americans who do not live in Anderson."
City Manager John Moore said he asked the South Carolina Municipal Association what to do and it encouraged the city to provide the information, but Shirley said that didn't matter.
Four years ago an offshoot of the Freemen's movement tried to gum up the city's administration with paperwork requests, the mayor said.
"I'm not going to suffer fools gladly," Shirley said.
