It’s Sunshine Week, the annual observance that since 2005 has focused attention on access to public information, open government and journalism's role in promoting transparency.
In South Carolina, there is a cloud over this Sunshine Week with a recent ruling by a circuit judge in a case involving the S.C. House Republican Caucus.
Media organizations sued the caucus under provisions of the S.C. Freedom of Information Act, seeking access to records turned over to the State Law Enforcement Division agents during an investigation into Statehouse corruption.
The contention is the records are those of a public body and thus are available to the public under FOIA.
Circuit Judge Robert Hood disagreed, rejecting the argument that the House Republican Caucus is a public body subject to FOIA.
The caucus does not spend or manage public dollars, with its operating funds coming from annual membership dues and private donations. But it is granted office space and meeting facilities in the publicly owned Statehouse complex.
Hood said a 1991 ruling opening University of South Carolina foundation records because the organization receives public funds does not apply to the non-monetary subsidy the caucus receives via use of the office and meeting facilities.
“The indirect financial benefit received by the legislative caucuses through the use of office space and equipment in the Blatt Building does not transform (the caucus) into a public body,” Hood stated.
FOIA allows exemptions for correspondence of individual lawmakers as well as their staffs, but it makes no exemption for caucuses. The House has rules that specifically exempt caucuses from FOIA.
For the body that created FOIA because “it is vital in democratic society that public business be performed in an open and public manner,” the General Assembly has a track record of exempting itself from provisions of FOIA. The judge’s decision is a blow to transparency in the legislative process.
Yet it is not the most troubling aspect of the ruling.
Saying FOIA only allows individuals to file a lawsuit, Hood also ruled media organizations are not citizens and cannot sue for access. The Associated Press, The State newspaper, The Post and Courier of Charleston and The Greenville News joined the South Carolina Press Association and the South Carolina Broadcasters Association in the lawsuit.
FOIA states: “Any citizen of the state may apply to the circuit court for either or both a declaratory judgment or injunctive relief to enforce provisions” of the law.
Yet it is clear legislators did not intend to exclude the media or any other organization. In the same section, the law reads: “If a person or entity seeking such relief prevails, he or it may be awarded reasonable attorney fees and other costs of litigation. If such a person or entity prevails in part, the court may in its discretion award him or it reasonable attorney fees or an appropriate portion thereof.”
The media – whether it be an individual reporter, a single outlet, a corporation or group of corporations – have the same rights under FOIA as an individual. Overturning the judge’s order is vital to the future of the press and public access under FOIA.