Lawmaker Aims to Strengthen State’s Open Government Law

South Carolina’s Freedom of Information Act may soon be getting more enforcement teeth.

A bill that passed through a House subcommittee Wednesday allows state and local entities to charge only copy fees for an FOIA request, disallows search fees for requests, and creates a time limit for a public body to provide information.

In the first action on the bill in a year, the committee passed a strike-and-insert amendment stating a public body may no longer charge fees for staffers’ time spent gathering or reproducing records. The amendment also requires copy fees to be capped at “the prevailing commercial rate” for paper copies.

“That’s what you would get down at Kinko’s for a copy, say, 8 cents a page,” Rep. Bill Taylor, R-Aiken and sponsor of the bill and amendment, told The Nerve. “That’s a real limit that just makes sense, to avoid those ridiculous $10-a-page fees you hear about.”

The Nerve has reported extensively on how loopholes in South Carolina’s FOI law make it possible for state agencies to charge fees in the hundreds of dollars to fulfill a single request. Other loopholes allow a public body to simply acknowledge that it has received an FOIA request within the state’s 15-working-day time limit but not actually fulfill the request until months later.

Taylor’s measure changes the limit for a public body to acknowledge whether it will release the requested records to 15 calendar, instead of working, days; and it institutes a new 30-working-day limit to actually provide requested records.

Working days exclude Saturdays, Sundays and legal public holidays.

For requests involving information more than 24 months old, a public body may use up to 30 working days plus 45 additional calendar days to respond to the request.

“Right now, I wonder if ‘FOI’ shouldn’t stand for ‘frustration of getting information’ act,” Taylor said to the House Judiciary Special Laws Subcommittee. “We need a time barrier in here.”

Taylor introduced the amendment to his own bill, H. 3235. The subcommittee approved Taylor’s amendment by a 3-0 vote.

Other changes Taylor’s measure would make to FOI law include allowing FOIA responses to be transmitted electronically and requiring that records stored or transmitted electronically be provided free of all charges.

The bill also requires immediate disclosure of any documents used in a public meeting in the past six months, without the need to make a formal FOIA request.

“For example, let’s say you go to a school board meeting and they only have 10 copies of their budget, but 200 people show up,” said Taylor. “Then, the school board has to put this information online, immediately. It’s available to the school board; it ought to be available to us.

“The information’s already there. They just have to put it up.”

Representatives from the S.C. Department of Health and Environmental Control and the South Carolina Association of Counties expressed concerns during the meeting that the changes Taylor proposed would put unreasonable cost and time restrictions on public bodies.

In response to a DHEC representative’s testimony that prohibiting administrative search fees would drain local government funds and therefore local government services, subcommittee member Rep. Seth Whipper, D-Charleston, said agencies opposing such a restriction need to quantify how much revenue they would lose.

Whipper also suggested agencies offset reduced revenue from FOIA requests by adding needed funds to their annual budget requests.

During the subcommittee’s meeting on the bill last week, multiple citizens presented stories of their experiences with open-records abuse in the state.

Alberta Wasden, a small business owner from Wagener, said that when she filed an FOIA request with the town of Swansea, the town sent her a charge of $10,000 to cover both search and copy fees.

“The intimidation process of filing a Freedom of Information request is tremendous,” Wasden said. “It took me two years to get the information. . . . I had to get a lawyer, so I didn’t pay the $10,000; but I still paid some hundreds of dollars, and the lawyer was an additional cost.”

Wasden had submitted an FOIA request for the town’s finance records and copies of minutes from town meetings. The town of Swansea told Wasden that she would have to pay for 80,000 sheets of paper to cover her request as well as $21.85 for each hour a clerk spent fulfilling the request, Wasden said at the meeting.

After filing multiple FOIA requests in a piecemeal process over two years, Wasden told The Nerve she received information that was printed on 500 sheets of paper and was incomplete. Wasden said she is still sending requests to the town to receive her requested information.

“This only happens in South Carolina and nowhere else,” said Wasden. “Most requests come from people like me – just an ordinary person. An individual, just a regular person out here, has never been charged $10,000 in a town of 800 for an information request.”

“This stuff should be readily accessible,” she added. “States are turning loose millions of dollars to towns with no oversight.”

Among other citizen testimony given at last week’s meeting, Kim Murphy, who serves on the Lexington Richland District 5 board, said the public body she works for “regularly withholds public information from citizens.”

Murphy cited one example in which a newspaper in her district submitted an FOIA request to inspect school board members’ emails, which by state law are public records. The district refused to release the records, and there was nothing the newspaper could do under current law to force the release, Murphy said.

Murphy told the subcommittee the real problem with South Carolina’s FOI law is that it contains no enforcement mechanism to force public bodies to give public information to citizens. Murphy dubbed the state’s FOIA “not an open records law” but a “loophole law.”

“There’s always a loophole to exploit, and those loopholes have even been used to keep public information from me,” said Murphy. “And again, I’m on the school board.”

Taylor said he was happy with the progress his bill and amendment made in subcommittee, particularly with the amount of citizen testimony that was presented.

“We’re trying to get real people with real stories up here, to show the problems with this law,” Taylor said.

Taylor’s bill now moves to the full House Judiciary Committee, which is scheduled to meet Feb. 21.

Reach Kumar at (803) 254-4411 or amit@thenerve.org.

Bill Could Give Arts Commission Secure Source of Funding

The head of the S.C. Arts Commission is taking a cautious approach regarding a recently introduced bill that could give his agency a steady source of revenue.

Ken May, executive director of the commission, said one of the key components of H. 4697 is a provision that would provide the agency with a set percentage of state admission tax revenues, rather than have the commission’s funding held to what some see as the vagaries of politics.

“What I like about the idea is that it’s saying, ‘let the arts pay their own way,’” he said. “If arts generate revenue for the state, let’s take a portion and reinvest it for the benefits of arts across the state.”

If the bill passes, it would eliminate some of the uncertainty that has surrounded funding for the agency in recent years, particularly since Gov. Nikki Haley took office in January 2011. Currently, the agency has to submit its budget to the governor, who then forwards it to the General Assembly.

Haley vetoed all funding for the agency last year, a total of $3.6 million, including more than $1.9 million in general funds.

However, the General Assembly overrode Haley’s veto by an overwhelming margin.

For 2012-13, the commission submitted a budget request of $3.54 million, including $1,864,988 in state funds, which would represent a 3 percent reduction in the latter if approved.

However, Haley’s proposed budget for the coming fiscal year completely eliminates both state and federal funding for the commission.

No End in Sight for Court Fees

If users of the state’s court system are hoping to see lower court fees any time soon, they likely won’t find an ally in S.C. Supreme Court Chief Justice Jean Toal.

During a hearing last week before a Senate Judiciary subcommittee, Toal, who heads the state’s Judicial Department, said there “certainly can be some restructuring of the fees” and repeated an earlier pledge not to raise fees.

But she made no promises to immediately seek to eliminate or reduce any of the filing and motion fees in circuit and magistrate courts, or fees charged on alimony and child support payments ordered by family court judges.

In fact, Toal made no commitments even when presented with the possibility of the passage of a proposal that would generate an estimated $38 million more for the court system in the first year after its enactment.

Under state law, filing a lawsuit in South Carolina’s circuit courts cost $150; motions filed with a suit cost an additional $25 each. Filing a civil complaint in magistrate’s courts costs $25, and most other civil filings in that court costs $10 each.

For child support or alimony payments order by family court judges, there’s an additional 5 percent “assessment” on the amount of the payments.

Those costs can be a burden on people with lower incomes.

Charleston Council Passes Short-Term Rental Ordinance

Marc Knapp
Citizen Reporter

Charleston City Council gave a final reading to an ordinance creating a short-term Rental Overlay District in the city.

The ordinance was passed unanimously – significant, as the Planning Commission rejected it in its original form. Because of this rejection, at least 75 percent of the council needed to approve the measure for it to pass.

The ordinance before the Planning Commission allowed short-term rentals in commercially zoned districts anywhere in the City. Council voted to limit the overlay to commercially zones areas only in Elliottborough and Cannonborough. The overlay can be seen here.

It was agreed that the ordinance would be reviewed in six months.

Details of the proposed ordinance have been discussed in recent council meetings.

Suffice to say that the city’s purpose in creating the ordinance was twofold: to assist the rehabilitation of large and neglected buildings in Elliottborough and Cannonborough; and to provide low-cost short-term rental opportunities to friends and relatives of students at the College of Charleston and of patients at the City’s hospitals.

There were other restrictions beyond geographical, as well. All rental units must have full kitchen and bathroom facilities, no more than nine units are to be allowed on any site, and parking is to be designated as per City code.

It should be noted that short-term rentals – less than 30 days – are allowed in the city only in the Accommodation Overlay Zone, or at bed and breakfasts in the Historic District. The latter have to meet strict conditions in relation to parking, facilities and the number of units.

Council members Gary White Jr. and Aubry Alexander have expressed concern with the new ordinance. It was not that they saw an adverse impact, but whether such an ordinance was possible.

There were a number of citizens that spoke in favor of the new ordinance. Most were architects, developers or residents of the two boroughs.

All touted the benefits – the resuscitation of old buildings, the displacement of college students (with the implication that they made little contribution to the fabric of the community), and the likely reduction in on-street parking pressure.

Only one citizen spoke against the ordinance stating that creating rental properties in a residential area was taking away from the community.

Tim  Keane, director of Planning, Preservation and Sustainability, told the city council that the staff had spent considerable time shaping the ordinance.

He said studies had been made of a number of cities in the US where short-term rentals had been permitted. It seemed that the policies had failed when the rentals had been massed, and in residential areas. What the city was proposing would avoid the mistakes made by others.

Marc Knapp is a contractor specializing in heavy underground utilities and the owner of Charleston Site Utilities.

Restructuring Could Face Filibuster in Senate

The S.C. Senate this week is continuing to debate a restructuring bill that goes a long way toward overhauling state government but – to some informed observers – falls short of true, comprehensive reform.

How the Senate got to where it is on the issue also concerns some reform advocates. Indeed, it has been an uphill fight even to arrive at this point, and the same is likely true going forward.

Sen. Robert Ford, D-Charleston, told The Nerve on Monday that he and some other senators plan to help Sen. Hugh Leatherman, R-Florence, lead a filibuster against the bill in an effort to defeat it in their chamber.

At the center of this restructuring battle is the Budget and Control Board (BCB), a hybrid of the executive and legislative branches of state government. Widely described as unique to South Carolina, the BCB consists of an agency and a five-member board, both of the same name.

The BCB agency performs many central administrative functions of state government, such as managing employee benefits programs, which in other states are under the jurisdiction of governors.

The BCB board, meanwhile, controls several critical areas of state finances, such as construction projects and land transactions. The board consists of the governor, comptroller general, treasurer and the chairmen of the two legislative appropriations committees – Senate Finance and House Ways and Means.

The Budget and Control Board has long been criticized as an unaccountable hydra that tramples the constitutional separation-of-powers doctrine, fostering inefficiency and dysfunction in state government.

S.C. House Bill Proposes Major Child Custody Law Changes

South Carolina’s child custody law would see its biggest overhaul in decades under a bill that has sailed through the S.C. House.

The bill (H. 4614), sponsored by Rep. Mike Pitts, R-Laurens, spells out definitions of joint and sole custody for the first time in the S.C. Code of Laws – something which, according to family law attorneys, has varied depending on the family court judge hearing a case. The proposal also lists 15 factors that judges can consider in awarding custody.

There were 3,372 child custody and visitation cases filed statewide last fiscal year, which ended June 30, plus another 987 cases in which modification of child custody or visitation was sought, according to figures from the S.C. Judicial Department.

Pitts’ bill, which was introduced on Jan. 17, unanimously cleared the House last week and is now in the Senate Judiciary Committee.

Meanwhile, S.C. Supreme Court Chief Justice Jean Toal is expected to ask lawmakers Wednesday in her annual state-of-the-judiciary speech for six more family court judges and three additional circuit court judges to deal with increasing caseloads.

The Search for a Joint Open Session on the Budget

State law requires that House and Senate appropriation committees meet in joint open session to consider the governor’s proposed budget within five days of it being released.

On Jan. 23, the fifth and final day such sessions could be held, Braum Katz of the South Carolina Policy Council attempted to find members of the legislative appropriation committees meeting, per state law.

It was a fruitless quest.

More Lawmakers Supporting Independence for Legislative Ethics

A third bill has been introduced to put the kibosh on ethics self-policing in the S.C. General Assembly, and the effort is now bipartisan.

Rep. Boyd Brown, D-Fairfield, introduced the latest bill on Jan. 18.

The legislation, H. 4634, would place members of the Legislature under the jurisdiction of the state Ethics Commission. The bill also would abolish the House and Senate ethics committees.

Brown’s proposal is the third measure pending to reform legislative ethics by bringing more transparency, accountability and independence to the enforcement process.

Efforts to reach Brown on Wednesday and Thursday on his cell phone and at the State House while the Legislature was in session were unsuccessful.

Brown’s bill has attracted three co-sponsors, including Rep. James E. Smith, D-Richland.

“It’s very important,” Smith says of ending the longstanding practice of legislators watching over each other for ethics violations. “I think it’s just generally a concern.”

Provisos: Legislators’ Earmarks – and Why They Love Them

Lots of politicians rail against federal earmarks in Congress, but the S.C. General Assembly has its own version of earmarks and many of them represent the very same kind of special-interest, pork-barrel spending.

The Legislature’s version of these little gems is called provisos.

A few of them currently in effect, as examples:

• Prohibit the Department of Parks, Recreation and Tourism from reducing funding allocated to its regional tourism-promotion efforts or scaling back the agency’s full-time staffing levels at the State House gift shop and the Santee Welcome Center;

• Rebate up to $114,000 in state admissions tax this fiscal year to the Darlington Raceway, a Darlington County facility that plays host to NASCAR races; and

• Provide Hollywood welfare in the form of film incentives.

Those samples, however, are small potatoes compared to some provisos.

Lawmaker: Budget and Control Board Does ‘Jam-Up’ Job

On Jan. 26 the S.C. Senate debated a bill that would abolish the Budget and Control Board – the powerful five-member board that runs state government.

Although observers of both parties have usually agreed that the Board system has not served South Carolina well, Sen. Robert Ford, D-Charleston, disagrees.