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Court ruling shows FOIA needs revision

Posted: June 27, 2014 9:20 a.m.
Updated: June 30, 2014 5:00 a.m.

Two years ago, I applauded a S.C. Court of Appeals ruling that Saluda County Council violated the S.C. Freedom of Information Act (FOIA) in 2008 by adding to an already published agenda for one of its regular meetings. I did so because I, as I believe my fellow journalists do, that a) publishing an agenda provides proper notice to citizens of what a public body intends to consider at its regular meetings, and b) that adding items to an established agenda during a meeting is unfair to those citizens not in attendance who didn’t know about something ahead of time they might have wanted to hear or speak up about.

Recently, the S.C. Supreme Court reversed the lower court’s ruling because the FOIA includes the following language concerning meeting agendas: “Agenda, if any (my emphasis), 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.”

Justices ruled not only that there is no language keeping public bodies from amending agendas at any time, including during meetings, but that the “if any” phrase means public bodies need never again publish any sort of agenda prior to a regular meeting (they would still have to for emergency or special called meetings).

While the Court’s ruling is technically correct, I would argue that this negates the intent the crafters of the S.C. FOIA had in ensuring open government here in our state. There are two steps to take, in my opinion: 1) urge public bodies to continue publishing agendas -- and not amending them during meetings -- despite this ruling; and 2) work to change the language of the FOIA so as to require all public bodies to publish agendas no less than 24 hours before all meetings. Personally, in order to facilitate publication by the media and, therefore, better notice to the public, I’d like to see this increased to 48 hours.

The good news for us here in Kershaw County is that our local governments are pretty good about agendas. In addition to physically posting on meeting room doors, etc.:

• Camden City Council not only publishes its agendas well ahead of time but provides the media with its entire agenda packet so that we can, if we choose, give you, the public, even more information about what’s coming up.

• Kershaw County Council provides its agendas via email to the media. Although it does not provide an entire packet as the city does, County Administrator Vic Carpenter is always willing to provide additional information whenever asked.

• The Kershaw County Board of School Trustees places its agenda and supporting documentation online for everyone to see.

Early indications are, specifically from county council, that our local officials plan to continue publishing agendas and amend them only when absolutely necessary.

If I have any complaint about some of our local agendas is that they sometimes do not clearly spell out the fact that a vote will be taken on certain items. However, in checking with experts at the S.C. Press Association (SCPA), the word “vote” doesn’t have to appear on any agenda. As long as the public knows that an item is even coming up for discussion, that’s considered sufficient. So be it.

Just because our local public bodies are pretty good about agendas now doesn’t mean future iterations of councils and boards won’t take advantage of the Court’s ruling. And, just to broaden things a bit, there are many public bodies throughout the state that are very, very bad on just about every aspect of their meetings.

However, strengthening the S.C. FOIA would be easy to do. In that one quoted sentence from the FOIA, simply remove the words “if any” and replace “regularly scheduled” with “all.” SCPA officials tell me they are already looking into fighting for some type of revision during the next legislative session.

Having our legislators and the governor agree to this would speak very highly of their collective support of open government. The question is, do they have the will?

I’m afraid that -- and I’m speaking overall because our local delegation is pretty fantastic in my book -- the General Assembly collectively is not real keen on openness. Just look at the whole Bobby Harrell mess. If a number of editorials I’ve read from around the state are any indication, my peers aren’t too confident that legislators won’t want to help out their fellow elected officials on the local level who’d rather work in secret. All they have to do is ... nothing.

I happen to know from experience that S.C.’s FOIA is one of the best in the nation. There have been times when I’ve sought what I knew to be public information here in another state only to have officials tell me they are not required to give out that particular information -- even to their own residents.

All kinds of things are required to be out in the open in South Carolina that are not in other states. Unfortunately, the S.C. Supreme Court’s ruling weakens this wonderful law and sets us up for further open government failure.

Again, the S.C. FOIA is good law. We just all need to fight to make it even better for the benefit of all our citizens.


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