State Supreme Court sides with Rocky D, says public bodies cannot say FOIA hurts speech
COLUMBIA — Public bodies in South Carolina cannot use the Freedom of Information Act to justify decisions not to release records or hold open meetings, the state’s highest court ruled Wednesday.
In a 3-2 decision, the state Supreme Court ruled that a circuit judge should not have allowed the South Carolina Association of School Administrators to argue that open records requirements harmed its members’ free speech rights.
Charleston-area radio personality Rocky Disabato sued the association after it denied his open records request in 2009 on the basis it wasn’t subject to the law. The association, whose members are public school boards and board members, gets public money, and Disabato — known on-air as “Rocky D” — argued it should therefore be subject to the Freedom of Information Act.
In the majority opinion, Justice Kaye Hearn cited a 1991 case in which the court held that even a private corporation supported by public money could be defined as a “public body,” which, under FOIA, must make its meetings and records available to the public.
And, without a requirement that groups that receive public funds be therefore subject to public scrutiny, the court wrote, agencies could easily push various agendas through third-party groups without such scrutiny.
“If public bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling State funds to nonprofit corporations so that those corporations could act, outside the public’s view, as proxies for the state,” the court wrote.
The justices did not decide if the association is a public body and left it up to a lower court to take that issue back up and decide. Disabato’s lawyers said Wednesday that he will pursue that determination.
Attorneys for the association did not immediately comment on the ruling.
Jay Bender, a media attorney who filed a brief in the case on behalf of the South Carolina Press Association, applauded the ruling as a victory for open records supporters.
“I think this makes it clear, if you’re a public body, you’re required to have your meetings open to the public,” Bender said. “You can’t claim even First Amendment protection to shelter your meetings and shelter your meetings from disclosure. I think that helps democracy.”