Sunshine law advocates fear public increasingly kept in dark

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Jay Bender, a Columbia attorney who represents the South Carolina Press Association, and other news organizations, said the laws have vastly improved since their inception 30 years ago.

But he said officials' use of security concerns after the 911 terrorist attacks to hide information and illegal closed-door meetings by government boards remain the top threats to the state's open government law.

Kenneth Campbell, who teaches mass media law at the University of South Carolina, said his students are surprised each semester that FOI problems persist.

"The few times that I have personally used the South Carolina Freedom of Information Act, I have encountered the problem of delayed response time and the issue of charging for compiling information — information that I thought should have been readily available," he said.

Bender, a former journalism student, said that keeping the law strong helps every South Carolinian because it grants citizens access to their government.

"It was designed not for newspapers," he said. "Citizens need the leverage of the law to get access to whatever it is they are looking for, whether it's tax records, the number of accidents at an intersection or how many times somebody has been arrested in this neighborhood."

The law was designed for citizens like Greenville's Ned Sloan, who has waged a long-running battle to protect what he sees as the best interests of the taxpayers of Greenville County.

"Everybody should have to follow the law. That includes governments too," the retired paving contractor told The Associated Press.

Legal actions with citizen Sloan's name as the plaintiff have popped up in the middle of everything from Greenville County Council's process for awarding contracts to Gov. Mark Sanford's service in the Air Force Reserves to proposals for a new minor league baseball team in Greenville County.

Ann Sutherlin, the longest-serving member of the Greenville County School Board that has battled Sloan in recent years over the district's construction program, said Sloan's lawsuits help ensure local governments follow the law.

"I don't think there can be too much intervention in the protection of the best interest of the taxpayers," she said.

Weighing security against openness

Bender said security concerns following the terrorist attacks in 2001 have posed threats to sunshine laws nationwide.

"I think there are legitimate instances where governmental secrecy is appropriate," Bender said, but he questions whether security is sometimes used as a pretext to keep things secret.

"I think it's like the executive session. The fact that it exists as an exemption from full disclosure provides an opportunity for government abuse of that by hiding things that are not security related or by meeting illegally to discuss things that are not allowed to be discussed in private."

Some agencies, city councils and school boards still do not provide adequate notice of meetings, Bender said.

Strengthening the law

Bender said some changes are needed to strengthen the FOI law.

Some officials appear to use high copying fees as a means either to raise more money for their agency or to discourage record requests, he said. Such charges should be held to the local prevailing commercial rate, he said.

Bender also said the time allowed for government officials to respond to requests should be shortened from 15 days, which excludes weekends and holidays and can be used to stall for time.

He also would like to find a way to stop officials from using executive sessions to discuss business that should be talked about in public.

Bill Rogers, executive director of the South Carolina Press Association, said methods used in other states include recording such sessions so judges can later hear what was discussed or having board members sign sworn statements that they only discussed in private what is allowed by law.

Carl Muller, a Greenville lawyer who represented The Greenville News in its lawsuit almost 20 years ago to open financial records of a USC foundation, agrees the changes are necessary.

He also points to the secrecy surrounding doctors' disciplinary records as among the major threats facing the state's sunshine laws.

Muller said use of the FOI in recent decades has been a "tug of war."

"Sometimes it's headed in the direction of more openness and more access and other times it's headed in the other direction," he said.

"Knowledge is power," he said, "and people who have knowledge frequently don't want to share knowledge because they don't want to share power."

Muller said ordinary citizens are increasing making use of the Freedom of Information laws.

"They know that it's a vehicle for getting information. They know that the information is very important. And they want to get it," he said.

"They're not just saying, 'It's none of my business.' Citizens are waking up. And they are waking up because when the press succeeds in extracting things using the Freedom of Information Act, citizens see how powerful it really is."