Ruling favors Berkeley school board

MONCKS CORNER — A judge has ruled that the public does not have the right to see the Berkeley County School Board members' individual performance evaluations of Superintendent Chester Floyd.

The Post and Courier filed a lawsuit in November alleging that the school district broke the law by not making the evaluations public under the Freedom of Information Act.

In an order released Monday, Circuit Judge Roger Young agreed with the school district's contention that the evaluations are exempt from the law because they are protected by attorney-client privilege.

District lawyers had argued that it was necessary for the board to enlist the help of an attorney with the evaluations because some newly elected members had created a contentious environment.

In the ruling, the judge wrote that the FOIA broadly exempts attorney-client privilege to protect "all communications relating to the rendition of legal services and advice, and not merely the legal advice itself."

He also wrote that the board members' individual assessments do not constitute the board's overall evaluation, which was made public.

Other school districts, including Dorchester District 2, have released those individual evaluations.

Ken Childs, attorney for the Berkeley school district, said Tuesday that the district is pleased with the decision.

"We think his order was the correct statement of law," he said.

Representatives for The Post and Courier and the South Carolina Press Association said the ruling has statewide implications.

"We are on a slippery slope when public bodies can hire attorneys to perform administrative tasks and then claim attorney-client privilege to keep information from the public," Post and Courier attorney John Kerr said.

Jay Bender, attorney for the state press association, said there's no good reason to keep evaluations private.

"It seems to me this was an effort by the school board to shirk public accountability," Bender said.

The newspaper has 30 days to appeal. Publisher Larry Tarleton said the newspaper is still weighing its options.

Bill Rogers, the press association's executive director, said the organization is willing to join in if the paper files an appeal.

"If this holds up on appeal, it will create a loophole in the Freedom of Information Act big enough to drive a school bus through," Rogers said.

The judge's order says the contentious circumstances surrounding the evaluation process, including serious disagreements between Floyd and some school board members, raised legal questions necessitating attorney involvement.

John Reagle, one of the attorneys for the school district, said the Freedom of Information Act exempts legal correspondence between attorneys and their clients.

"The judge found that this was not a mere 'administrative task,' " Reagle said.

Rogers said any legal advice provided by the attorneys could have remained private without suppressing evaluations that have long been upheld by the courts as public documents.

School Board Vice Chairman Frank Wright, who served as chairman when the lawsuit was filed, said he was pleased with the decision.

"I thought it was the right decision for the school board and the school board members," he said.

Reach Andy Paras at 745-5891 or aparas@postandcourier.com.