A decision made by the S.C. Supreme Court Wednesday made national headlines ... if you’re a journalist, that is. There’s a great blog maintained by the Society of Professional Journalists (SPJ, of which I’m a member) called FOI FYI.
The blog -- maintained by SPJ intern and freelance writer Kara Hackett -- published a pretty good summary of the court’s reversal of a Richland County court case that originally ruled that the state’s Freedom of Information Act (FOIA) violated the S.C. Association of School Administrators’ (SCASA) First Amendment rights.
In the original case, Rocky Disabato, a Charleston-area radio personality, sent SCASA a FOIA request for “all emails, letters, memos, documents and other records” SCASA had that “discuss both the American Recovery and Reinvestment Act (ARRA) of 2009 and Governor Mark Sanford, including but not limited to any references to the lawsuit filed by your organization against Gov. Sanford in May 2009.”
SCASA’s lawsuit, by the way, was actually filed against Sanford and then State Superintendent of Schools Jim Rex due the governor’s decision to accept ARRA “stabilization funds,” but use them to pay the state’s debt rather than use them to boost education funding.
SCASA refused Disabato’s request because, it claimed, it wasn’t a public body and, therefore, not subject to FOIA.
Disabato claimed otherwise, hence his lawsuit. SCASA fired back, motioning to dismiss the suit, again on the grounds that, “when the FOIA is applied to a public body that is a non-profit corporation engaged in political advocacy, the FOIA unconstitutionally violates the First Amendment rights of free speech and association.”
Wow! Freedom of information violates free speech?
I don’t think so, but the Richland County court did. The lower court dismissed Disabato’s suit saying, “the FOIA’s broad definition of ‘public body’ can only be sustained as constitutional if the FOIA’s open meeting and records disclosure requirements are substantially related to a sufficiently important government purpose and no less restrictive means of achieving this purpose exists.”
In simpler words -- as a non-profit public body -- SCASA could actually use FOIA itself to justify its decision not to release those records ... or even hold open meetings.
But there’s an important point about why SCASA is considered a public body: it not only engages in public advocacy but receives some public funding, as Hackett points out in her blog post.
I indirectly sided with SCASA in its actions against Gov. Sanford. I wrote at the time, and still would today, that he was wrong to divert ARRA funds away from their intended purpose.
But I have to disagree both with it and the lower court when it comes to the current matter, which is why I’m happy with Wednesday’s ruling.
The court spent about 20 pages of its ruling discussing various points of law and precedents concerning FOIA, public bodies and the First Amendment. As Justice Kaye G. Hearn wrote in the ruling’s introduction, the case required the court to “reconcile two competing principles of our democratic tradition.” The first of those, “embodied” in the FOIA, “is the principle of an open, transparent system of government, vital to maintaining an informed electorate and preventing the secret exercise of governmental power with its potential corruption.” The second principle includes “the rights of citizens to freely speak and associate” as guaranteed by the First Amendment.
I’m not going to go through every bit of the court’s analysis. As I said, it’s some 20 pages long. Allow me to highlight two points.
For one, the court noted that, back in 1991, it ruled that even a private corporation that receives any public funding falls within the definition of a public body. It clarified that ruling at the time by saying that while it didn’t mean private companies were subject to FOIA under every condition, it would “when a block of public funds is diverted en masse from a public body to a related organization” or when a private organization manages the spending of public money. “...the only way that the public can determine with specificity how those funds were spent is through access to the records and affairs of the organization receiving and spending the funds.”
Justices actually decided Wednesday not to rule on SCASA’s “public body” status since the organization didn’t actually challenge Disabato’s claim that they are one.
Instead, it focused more on the application of FOIA to SCASA. There -- under the assumption that SCASA is a public body -- the court said, “If public bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling state funds to non-profit corporations so that those corporations could act, outside the public’s view, as proxies for the state.”
Now, there’s a scary thought, and I think that’s exactly why the court ruled to reverse the Richland County court decision and bring SCASA -- and all other similar organizations -- back into the light of open government.
Justices Costa M. Pleicones and Donald W. Beatty concurred with the part of the opinion on the transparency of public funds, but dissented with the majority’s application of FOIA to bodies like SCASA.
I’m with the majority, and I don’t think SCASA’s right to act as advocates is hurt by its need to be transparent.