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Sunshine Week: Emails are subject to FOIA

Posted: March 19, 2015 10:06 a.m.
Updated: March 20, 2015 1:00 a.m.

The controversy encircling former Secretary of State Hillary Clinton and her use of private email to conduct public business provides our latest example of government in the shadows, a situation we know well in South Carolina.

“Shadow government,” as S.C. Press Association Director Bill Rogers has labeled it, means conducting public business via private emails, texts, Twitter or other social media accounts which are not connected to government servers and thus not retrievable by government agencies and the public.

The idea electronic communication of public business should be stored and made available to the public similarly to printed communication is not new. Compliance remains another matter.

Mrs. Clinton called her use of private email “a matter of convenience.”

She said she turned over all relevant emails to the State Department which will review them and later publish them online. Worth noting is the nonpartisan Committee for Effective Government has rated the State Department last among major agencies in processing FOI requests, once taking as long as six years to comply with a request.

Here in South Carolina, our examples of shadow government range from the governor’s office to the smallest town’s elected officials.

Decisions about budgets, taxes, school and road openings and closings, hirings and firings, you name it -- public officials who discuss these and other issues via private channels prevent citizens and the press from participating in the process and overseeing the actions of those who represent us.

Under the S.C. Freedom of Information Act, public bodies are required to turn over all public records in their possession. The law says public records include documentary materials “regardless of physical form or characteristics.” When the law was adopted in 1976, developing technology couldn’t be specifically included because, of course, it didn’t exist. But the qualifying phrase, ”regardless of physical form or characteristics,” applies.

Sadly, South Carolina’s email retention laws are confusing and inconsistently enforced, resulting in blurred lines between public communication and private. This has resulted in the loss of important correspondence never made available as public records and also documents inadvertently deleted from state servers.

Bills under consideration right now in Columbia include one which would designate an office of FOI review, making it easier for citizens and journalists to use FOI tools without costly legal bills; and another which would require an agenda for public meetings, thus negating a state Supreme Court decision last year which seriously weakened public notice of government intentions.

Rep. Weston Newton, R-Beaufort and a sponsor of the bills in the House, said our state has a culture developed around the idea that decisions are made by a select few and everyone else hears about it afterward.

And even if we hear about it afterward, we might never know the twists and turns, compromises and promises, intentions planned and unintended, if the discussions along the way are not open and available.

Making government transparency as ubiquitous as email would seem so easy to accomplish. Compliance is what we need.

And, there’s one bright spot in the current email debate worth noting: at least Hillary Clinton knows how to use email. Our own Sen. Lindsey Graham declared on national television he’s never sent an email. Ignorance of communication technology is truly so last century.

As we focus on open government during Sunshine Week, your right to know is never more important.

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