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 firstname.lastname@example.org.