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Friday, March 17    |    Upstate South Carolina News, Sports and Information

Sunshine law provisions leave many in the dark
What information can be disclosed still causes confusion, experts say

Published: Friday, March 17, 2006 - 6:00 am


By David Dykes
BUSINESS WRITER
ddykes@greenvillenews.com

The state's Freedom of Information Act was designed to give the public and the press access to the workings of their government, and it is specific in defining what is a public body and what type of business can be conducted in private.

If a body is supported by public funds, even partly, or spends public money, it is subject to the FOIA.

Public records include all types of records, including computer data, prepared by or in the possession of public agencies.

But income tax returns, and records of medical history, scholastic performance and adoptions, aren't considered public.

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And while some public bodies have difficulty determining what constitutes a meeting, the law should clear up any doubt. It says they are meeting when they have a quorum -- enough present for an official vote -- regardless of whether they are meeting in person, at a social gathering or a conference telephone call.

Open meeting advocates say that means if those agencies are discussing public business and have a quorum present, those meetings should be announced to the public and press in advance and then be open.

In South Carolina, business conducted by a public body has to be done "in the sunshine, that is, in the open," said Attorney General Henry McMaster.

There are exemptions. Executive sessions can be called by government officials and closed to the public on sensitive issues, such as personnel and contractual matters.

But those exemptions "are few in number," McMaster said.

"Our law is very good," he said. "It's very broad."

For the most part, the law has been on the books in South Carolina since 1976. The General Assembly updated it in 1987 and again in 1998, 2000 and 2003, largely at the behest of the South Carolina Press Association and its FOI Committee.

The problem with the law, according to lawyers, government officials, and business leaders interviewed by The Greenville News, is that many people -- among both state and local agencies and the public -- simply don't understand it.

Those interviewed said many members of the public approach the law on a grab-bag basis, not knowing specifically what information they want or precisely what can be released.

"A lot of times people that come in wanting FOI (requests) really don't know what they want," said Tommy Thompson, director of emergency services for Anderson County.

He has extensive experience with the FOIA since his office fields public requests for records. He also received disclosure requests in the case of a 7-year-old boy who was abducted two years ago in a case that drew widespread media attention.

It was his nephew.

Hunter Thompson was returned safely the next morning, and deputies charged a 31-year-old man with kidnapping. The case is pending.

Some FOIA cases involve matters as simple as a resident who wants to know which neighbor filed a complaint with police about his barking dog, Tommy Thompson said.

"All of a sudden that person wants to come in here and demands who called," he said. "You're privileged to that information at a point, like when it goes to court. You're there and you're privileged to face your accuser."

Until that point, however, all that can be disclosed is that "a call came in at such-and-such a time and this is the complaint and this is what we did about it," Thompson said.

Other FOIA requests are far more complicated, such as those involving patient confidentiality in an EMS case, he said.

"Where we get into a sticky situation is, of course, with the new HIPAA act (Health Insurance Portability and Accountability Act) and other rules and regulations of privacy that come up," he said.

Sensitive issues are sent to the legal department for its review, Thompson said.

Overall, the law is working effectively, said Sheryl Schelin, the in-house attorney for the Horry County Department of Airports.

"Usually, it is straightforward," said Schelin, also a member of the South Carolina Bar's government law section.

"But if there's a question that hits my desk," she said, "it's hit my desk because somebody had a question and there is some confusion about whether it should be disclosed at all, or whether there's information that's private that needs to be withheld to protect somebody else's interest."

The law requires that anyone who requests information be notified within 15 business days on whether the requested documents will be disclosed.

It also says public bodies have to vote in open session on the specific reason they're going behind closed doors. Other voting has to wait until they return to public view.

From Schelin's perspective, one of the most significant additions to the law has been the exemption regarding photographs and images related to autopsies. The law says those images -- and audio recordings -- are exempt from disclosure except to coroners, medical examiners, judicial officials, prosecutors, members of law enforcement agencies, certain relatives and a few others.

That was prompted in large part by Dale Earnhardt's death, she said. After the NASCAR driver was killed in the Daytona 500, several newspapers sought photos of his autopsy to determine whether better safety equipment might have saved him.

Earnhardt's family objected, and newspaper lawsuits for access to the photos failed.

Another FOIA provision of particular public interest in South Carolina deals with the disclosure of information from public agencies offering economic incentives to recruit businesses, Schelin said.

Added in 2003, this portion of the law says public agencies must disclose the fiscal impact of the incentives after the project has been publicly announced or the incentive agreement is completed.

The law says the fiscal-impact disclosure must include a cost-benefit analysis that compares the anticipated public cost of the commitments with the expected public benefits.

"When companies come into a particular geographical area and the local body has been asked to consider some sort of economic incentive, i.e., for job creation or for capital improvement investment in the area, then this section puts an onus on the public body that wasn't there before," Schelin said.

Most of her office's FOIA requests -- roughly 75 percent -- come from the media, she said. Most of the others come from companies competing for different contracts.

"If they don't get the job, then they will frequently file their Freedom of Information Act request to find out why, essentially," she said.

Ned Cochrane, vice president and secretary of Mauldin-based Mount Vernon Mills Inc., a textile maker, said his business now depends far more on the Internet than the FOIA to retrieve information about a competitor, supplier or customer.

According to Schelin, someone filing an FOIA request at the county or state level needs first to identify which agency or entity most likely will have the document.

"Then, in all likelihood, he should put that request in writing," Schelin said.

According to Schelin, if a request comes in via e-mail, the agency may treat that as sufficient, or it may ask that the requester use a specific form.

The requester should be very specific when framing the request -- "all documents relating to" a rezoning, for instance, is quite voluminous and time-intensive, and, most likely, costly to reproduce, she said.

From the agency's perspective, it needs to identify the deadline for response, make sure it complies with the law and identify what the requester is actually asking for, Schelin said.

Agency officials need to determine if the law covers the requested document, she said. If the information doesn't exist in an existing format, the agency isn't required to create a document, she said.

"I think I've seen requests originate in just about every conceivable format -- handwritten on a piece of notepaper, e-mailed, telephoned, in a formal letter from an attorney," Schelin said.

"Usually, we'll reduce that request, no matter how it originates, to writing on our county's form, in order to properly track our handling of the request. This is good practice."

Many times, the attorney for the agency will be asked to review the documents and the request to ensure compliance with the law, or to give an opinion on whether the document is subject to disclosure or exempt from disclosure, she said.

For large FOIA requests, some agencies will estimate the time and number of pages involved in satisfying the request and will ask for payment up front, in order to discourage unnecessarily broad requests and to ensure that requests are made in good faith, Schelin said.


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