May 17, 2024

The Nerve Archive

Where Government Gets Exposed

Freedom of Information Bill Faces Rocky Road in Senate

FOIAAn S.C. House-passed bill to monumentally strengthen the state’s open-government law faces a precarious road in the Senate.

Most immediately, the Senate is consumed with crafting a legislative response to an S.C. Supreme Court decision. The ruling last week disqualified scores of candidates from the June 12 statewide primary elections.

Beyond that, the Senate is preparing to debate a budget for the 2012-13 fiscal year that starts July 1.

Moreover, the committee chairman who has frontline jurisdiction over the sunshine bill in the Senate says he is concerned about a provision that would eliminate an exemption in the open-government law for legislators.

Those three strikes against the bill, however, do not necessarily mean it’s out.

Despite his reservations about ending the legislative exemption, the committee head, Judiciary Chairman Larry Martin, R-Pickens, says he is working to get a hearing on the bill.

Sponsored by Rep. Bill Taylor, R-Aiken, the measure would close several big loopholes in the S.C. Freedom of Information Act (FOIA), which is widely regarded as one of the weakest such statutes in the country.

In addition to the legislative exemption, the weaknesses in the Palmetto State’s law allow state and local government entities to subvert the intent of it and instead use it to stonewall or thwart efforts to obtain information by the public, the press and, on occasion, even government officials.

“I have referred that FOIA bill to a subcommittee with a request that they get it up for a hearing as soon as they possibly can, maybe even this week,” Martin told The Nerve on Monday.

Martin said he couldn’t recall off the top of his head which subcommittee, but thought it was a Judiciary panel chaired by Sen. Chip Campsen, R-Charleston.

Campsen said Monday he did not know whether the bill, H. 3235, had been assigned to his subcommittee.

Efforts on Monday and Tuesday to confirm with Senate Judiciary staffers which subcommittee got the bill were unsuccessful.

Apparently, pretty much the entire Senate is swept up in addressing the Supreme Court ruling. Related to a paperwork filing issue, the decision booted some 180 candidates across the state – all of them challengers to incumbents – out of the primaries balloting.

Legislators are working feverishly against a tight clock – the primaries are less than five weeks away – to try to rectify the situation.

“That’s what I’m focusing on,” Campsen said.

As Judiciary Committee chairman, Martin wields a key hand in producing a legislative fix on the Senate side. Martin said Monday the “debacle” was “taking all my time this weekend and today.”

“And it only takes one senator to frustrate our efforts,” he added. “That’s one of the big obstacles that we face.”

It’s also another potential roadblock to the Freedom of Information bill, along with a mere month or so remaining in the legislative session.

If the bill doesn’t pass this year, it would have to be reintroduced and start from scratch in 2013.

“Obviously if it doesn’t I’ll be back next year,” says Taylor, a former TV news anchor, director and reporter.

The key provisions of his bill would:

  • Delete an exemption in the Freedom of Information Act that shields from disclosure “memoranda, correspondence and working papers” possessed by legislators “or their immediate staffs”;
  • Impose a 30- to 45-day deadline to provide information requested under the law, depending on how old the information is;
  • Shorten, from 15 business days to 15 calendar days, the deadline for responding to an FOIA request;
  • Prohibit state and local entities from charging fees for staff time spent complying with FOIA requests;
  • Allow state and local entities to charge only prevailing commercial rates for copying records; and
  • Disallow charging for documents available in digital format.

Currently, the law does not impose a deadline to supply information sought. Instead, it merely says that a public body must respond in writing within 15 business days as to whether it intends to fulfill an FOIA request.

That loophole allows state agencies and school districts and the like to drag their feet on requests, sometimes for months on end, if they don’t want to give up certain information. And as The Nerve has documented, that’s not an uncommon practice.

The Freedom of Information Act as written also gives government officials room to hit requesters with large, punitive research and copying fees, which have the practical effect of stymieing transparency – another not infrequent abuse of the law.

“I’m very open to fixing that,” Martin says of the deadline and fees shortcomings in the law.

But, he says, “I would be misleading if I didn’t say I have some reservations about broadly lifting what’s called the legislative exemption.”

Martin says he will not agree to disclose his correspondence with his constituents. He says it sometimes touches on deeply personal issues such as domestic abuse, and he does not want to see it turn up in a news report or other public format. “I just don’t think that does anybody any good.”

Campsen agrees. “I mean people will share their biggest, deepest problems,” he says.

Yet at the same time, Martin says he admits that such a blanket veil over legislators’ communications and working documents might not be a good policy. “I’m not suggesting to you there’s not something that we can do (on the legislative exemption),” he says.

Reach Ward at (803) 254-4411 or

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