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FOIA report could have been better

Posted: September 7, 2017 2:47 p.m.
Updated: September 8, 2017 1:00 a.m.

One of the agenda items during this week’s Kershaw County Board of School Trustees meeting was a report from Trustee Shirley Halley on topics covered during an Aug. 19 S.C. School Board Association School Law Conference.

One of the topics during the conference was “Sunshine on My Shoulders: Understanding the New FOIA Requirements and Remedies Available to Public Bodies.” FOIA stands for the S.C. Freedom of Information Act. Halley had the district include a copy of the report -- written by the law firm of Halligan Mahoney & Williams of Columbia -- in the meeting’s agenda packet.

Since she had a lot of other topics to report on from the conference, Halley only spent a minute or so on the FOIA report. She said that as a public body, the board must follow the FOIA’s rules.

“You can’t just ignore a request,” Halley said, adding that following the updated FOIA will “keep the board out of the courthouse.”

I’ve taken the time to read the report. There’s nothing inherently wrong with it. The report goes through the updates, providing trustees across the state with some “layman” language interpretation. I found their language to still be a bit too “legalese” for my taste, but so be it.

However, the report could have gone several steps further. For one thing, the report copies out amended portions of the FOIA in full, not explicitly pointing out exactly which part of each section was changed. It would have been better to only point out the specific updates.

The biggest thing I think it lacked, however, was real world examples of how to follow the FOIA.

Now, the report’s presenters gave such examples verbally. However, since only Halley and fellow trustees Mark Sury, Dr. James Smith and Chairman Ron Blackmon attended the conference, I think having such examples in writing would have benefitted the entire board.

For example, one of the amendments made to the FOIA earlier this year states that “all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period” must “automatically be made available for public inspection and copying without the requestor being required to make a written request.”

I would have liked to seen this explained as so:

During a regular meeting of the school board, a private citizen makes a presentation to the board, during which they hand up copies of a petition signed by hundreds of people demanding trustees take a certain action. Several weeks later, someone else -- a private citizen, reporter or elected official -- comes to the district and verbally asks for a copy of that petition. Under the amendment, the district would have to provide that person with a copy of the petition, no questions asked.

Most of the amendments to the FOIA this year were minor in language, but major in scope. Public bodies now have 10 working days to initially respond to a FOIA request instead of 15 and they must fully reespond to the request within 30 days in most cases. Public documents should now be placed on a publicly accessible website “in a form that is both convenient and practical.” Law enforcement reports can be redacted of information that would deprive someone’s right to a fair trial or impartial adjudication. Law enforcement dash-cam video is now subject to disclosure, although an agency can ask a circuit court to prevent their release.

Here’s one thing that wasn’t changed by amendment to the FOIA:

“Before going into executive session, the public agency shall vote in public on the question and when the vote is favorable, the presiding officer shall announce the specific purpose of the executive session.”

“‘Specific purpose’ means a description of the matter to be discussed...” as described in a separate subsection.

A recent court ruling out of Newberry County upheld that this does not mean a presiding officer can simply quote the type of exemption straight from the FOIA. They must truly state the specific purpose of the closed-door discussion.

Back in July, I gave examples of how this should work. I’ll relate them again:

“I move that we enter into executive session to discuss the purchase of real property as a possible location for a new administration building.”

“I move to enter executive session to receive legal advice concerning the possible signing of a contract with an accounting firm.”

“I motion to go into executive session to discuss possible disciplinary action against Employee A.”

It would have been good of Halligan Mahoney & Williams to provide these kinds of example so that all school boards, including ours, properly enter executive session.

It is still not happening and, as a member of the S.C. Press Association’s 2017 FOIA Committee, I will be focusing on this during our upcoming meeting, scheduled for next Thursday.

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