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Keeping records of arrests public freedom's priority--ISSUE: Judge's ruling about PTI and FOIA

OUR VIEW: Legislature should change PTI law to clarify that records open until case resolved via the program

South Carolina's legal system affords first-time offenders in some non-violent cases the opportunity to go through a program known as Pre-Trial Intervention. Counseling and education can be a part of case resolution, which features one key outcome: The person's record is officially expunged of the offense.

Crafted by the Legislature nearly two decades ago as an alternative form of punishment, the program has had its critics. We're among them, most notably because of a provision in the law that undermines the public resolution of court cases.

It is up to the circuit solicitor to decide which cases go into the program -- and many solicitors over time have chosen to reveal that the outcome of a particular case was its transfer to the PTI program. Some have not been so forthcoming.

The law that created PTI indicates that details about a case transferred to the program, or even the mere fact that the case went to PTI, is confidential. It's a flaw that should have been corrected years ago.

Why? Because when a person is arrested, indicted etc. and proceeds through the legal system, possibly with media notice as a result of public record, there is an obligation by the state to carry the case to a speedy conclusion and an obligation by media to report its outcome. Guilty or not guilty. If a case simply disappears from the docket with no note of outcome, the accused is effectively "the accused'' forever. There is also the legitimate concern that such a secret program is open to abuse in which cases get secretly referenced to PTI.

The flaw in the PTI statute has surfaced again, this time in 2003 with a circuit judge handing down a ruling that clarifies how PTI and the state's Freedom of Information Act, which guarantees open public records, relate.

The case involves a November 2002 shoplifting arrest by the Union County sheriff, who withheld the reports about the case from the Union Daily Times when the newspaper sought them in December. The sheriff said the accused had applied for Pretrial Intervention and that meant that the sheriff was not to release details.

The newspaper filed suit against the sheriff, noting that the state FOIA ensures that incident reports and arrest records be open.

Circuit Judge John C. Hayes III heard the case in July, ruling that the sheriff must turn over the records.

He reasoned that one law, FOIA, guarantees open records. The sheriff is obligated to abide by it in this case since the accused had only made application for the PTI program. A solicitor's decision on the case, which can takes weeks or longer, would not come before such records are available to the public.

Hayes said compliance with FOI in providing records in such cases appears to be in conflict with the PTI law. He said opening records does diminish the protection designed to be part of the PTI program, but he reasoned that the court cannot base its decision on conflict that comes from legislative enactment. Ironing out that conflict is the prerogative of the Legislature.

Our lawmakers surely do not intend to have police and other records kept secret while a legal case winds its way toward resolution, which may or may not involve PTI. Their approval of FOIA says openness is a priority.

Legislative resolution should come in the form of assuring that no state law, PTI or otherwise, undermines the fabric of ensuring access to public records. It is integral to our system that the records of persons arrested, jailed and processed through the legal system be public. Crime and punishment, even in minor cases, in secret is a dangerous threat to freedom for all.