Gov. Henry McMaster this past week put his signature on legislation improving the South Carolina Freedom of Information Act.
Changes have been a priority for the news media in South Carolina, with a number of lawmakers due praise for working diligently over more than a half-decade before finally achieving success this year.
The governor was joined at the ceremonial signing by representatives of the S.C. Press Association, the organization of the state’s newspapers that was out front all the way in seeing the reforms into law. The mood was celebratory as the FOIA is an essential tool for professional journalists to adequately do their job of serving as a watchdog on government.
Not to be lost, however, is the importance of the changes to every South Carolinian. The FOIA is not a law for journalists only. It provides government access for every citizen, including the many having never sought a public record or attended a public meeting. If and when their time comes, the strengthened law will be there to better serve them.
Key changes include:
• Criminal penalties for FOIA violations, which have never been imposed, were removed. Violators are now subject to awards for damages and attorney fees.
• The waiting period for response to a request for access to public records is reduced from 15 days to 10. If the records at issue are older than two years, an agency has 20 days to respond to an FOIA request. Before the change, no time limit existed for when documents had to be provided.
• Agencies are required to post fees for searching and copying documents. That fee schedule replaces the “reasonable cost” provision that has come to mean anything from an agency billing a person thousands of dollars for research to amounts far above market rates for making copies of documents. The bill requires agencies’ fees not to exceed the prorated hourly salary of the lowest-paid agency employee. Copying fees would have to be at the commercial rate and cannot be charged if documents are transmitted by electronic means.
• If a public record exists digitally, a person has the right to request and receive it via electronic transmission.
As much as the changes in FOIA are a people’s victory to be celebrated, the governor was on target at the signing ceremony in lamenting the absence of a key provision of the legislation.
At present, if an individual (or media organization) has a problem getting a request for public information filled, the person must file a lawsuit, hire an attorney and take the matter before a circuit judge. Depending on the severity of the situation, individuals and media likely and understandably will not want to spend the money and have so long a time go by as a request runs through the legal process.
The solution was creation an Office of Freedom of Information Act Review with the Administrative Law Court to hear direct challenges from citizens or media pertaining to alleged FOIA violations.
But Sen. Margie Bright Matthews of Colleton County for the second year objected to establishment of the Office of Freedom of Information Act Review based on cost and her assessment that people in her district cannot afford to go to Columbia to argue an FOIA matter.
So the legal remedy remains the circuit court, which requires hiring an attorney, though the compromise that got the bill through the Legislature and to McMaster requires an initial court hearing within 10 days. Previously cases could be delayed indefinitely.
"But it's still in circuit court, and that's a cumbersome way to go," McMaster said.
The governor and lawmakers championing FOIA as a vital tool for government transparency vow not to rest on the success of 2017. How much sentiment there will be for revisiting the law again soon is unknown. But if the FOIA is to become more functionally useful, giving people a way to seek enforcement of its provisions without spending thousands of dollars in legal fees remains a priority.