COLUMBIA — Nearly four years after South Carolina lawmakers attempted to strengthen the state’s Freedom of Information Act, compliance remains spotty, threatening the public's access to important public records, The Post and Courier found in a review of Midlands-area agencies.
Months ago, the newspaper sent identical open-records requests to more than two dozen cities, counties, school districts, colleges and state agencies based around Columbia. Each request sought basic information about the spending of public money: a breakdown of each agency’s legal fees since Jan. 1, 2019.
The goal? To track whether each agency met its new deadlines to acknowledge the request and turn over the records — and to see how much they would try to charge the newspaper for them.
The newspaper also checked whether agencies were following a new requirement that they post their FOIA fees online so citizens can know how much a records request might cost them.
The newspaper fired off the requests in early January. Because some of the records sought were slightly more than two years old, agencies had ample time to respond: 20 business days to acknowledge the request and then 35 more calendar days to provide the records, a total of more than two months.
Most of the 26 agencies provided the requested records well within those legal deadlines, and for free.
But a handful missed those generous deadlines to respond to the request. And still more wanted money before turning the information over, from the $16 sought by the Lexington County Sheriff’s Department to the $1,876 assessed by Richland County School District One.
Other agencies lacked websites that clearly explained how a citizen can submit a FOIA request or how much they might be expected to pay for those records.
"It’s unfortunate that some agencies think that they can ignore the law and not respond in a timely manner," said S.C. Press Association President Bill Rogers, whose group has lobbied for strong open-records laws. "That hinders the public in being able to get access to their information."
A constant struggle
News outlets, activists, everyday citizens and public agencies have fought over access to public records for decades.
Reporters have used FOIA requests to obtain government spending records, contracts, internal emails and other documents that reveal more about how government operates.
Sometimes, those records contain evidence of officials’ wrongdoing or blunders, embarrassing details they would prefer remain hidden.
But for years, the state’s FOIA law lacked teeth. Public bodies — who often said they were overburdened with public records requests — could drag their feet in responding, or ignore them altogether.
In 2017, news outlets pushed legislators to strengthen the law. The new version featured hard-and-fast deadlines to acknowledge requests and turn over the records sought.
But some agencies have continued to miss those deadlines — or charge exorbitant fees for basic information. And citizens have little recourse, outside of the costly process of hiring a lawyer to bring a lawsuit against the government.
Missing, meeting deadlines
To gauge compliance with the law in the Midlands, The Post and Courier sent requests to two nearby colleges, eight other state agencies, five school districts, two sheriff’s departments, two counties and seven municipalities.
Most agencies replied promptly and free of charge, citing the ease of the newspaper’s request.
The town of Irmo, for instance, turned over the records the same day.
“We always get FOIAs out of here just as soon as we get it,” Town Administrator Bob Brown said. “We’re a government body. There’s no reason to be screwing over anybody or jerking them around or making them wait."
The state Department of Labor, Licensing and Registration acknowledged the request within a day and provided a breakdown of its legal fees within 10.
The agency’s spokeswoman, Lesia Kudelka, said the pace reflects the agency’s commitment to open government as well as her background as a former reporter.
“I fully appreciate the importance of FOIA, and the need to respond quickly,” Kudelka said.
But other agencies were slower. In some cases, much slower.
The Lexington County Sheriff’s Department missed its Feb. 3 deadline to acknowledge the request by more than two weeks. The University of South Carolina acknowledged the request on time but didn’t provide the records until April 13, nearly seven weeks after the legal deadline.
The Richland County Sheriff’s Department, one of the state's largest law enforcement agencies, and town of Eastover, one of the Midlands' smallest municipalities, never acknowledged the request or turned over the records.
Lexington Sheriff spokesman Adam Myrick said the department’s FOIAs are processed by the county, which typically turns them around quicker than the legal deadlines.
USC spokesman Jeff Stensland said the state’s flagship university is working to improve its FOIA response times. The school is building a website to accept incoming FOIA requests and has hired a coordinator to track and fulfill them.
Previously, FOIA requests were handled by departments scattered all over USC’s sprawling campus. The recent change is a response to long-running criticism that USC has disregarded open-records laws, even amid promises to improve. The State newspaper and other open-records advocates have sued the school over habitually failing to fulfill FOIA requests.
“We (now) have a standardized process throughout the university for processing these things,” Stensland said.
The town of Eastover in lower Richland County — population 749 — couldn’t explain why it didn’t respond to the request.
Mayor Philip Gunter told the newspaper he plans to update the town website — which doesn’t explain how to submit a FOIA request — with a new portal to make the process easier.
“We shouldn’t have any problem putting it up there,” Gunter said. “The public’s got every right to ask for any information of the town.”
The Richland County Sheriff’s Department did not respond to questions asking why it failed to respond to the FOIA request.
Cost of doing business
A handful of other agencies were willing to provide the records on time — for a price.
Some of the charges were modest, such as the $46 proposed by the S.C. Department of Health and Environmental Control and the $51 assessed by the city of West Columbia.
Others were less affordable for the average taxpayer.
Richland County wanted $341, the equivalent of four day's income for the average Columbia-area resident.
For Richland One, school district attorney Susan Williams estimated it would take her 24 hours — one hour per month of legal fees sought — to retrieve the records. She said her hourly fee is $78.18, meaning the newspaper would have had to fork over $1,876 to have her pull the school district’s records.
Williams said she would not waive that fee, since she would have to perform the task outside of normal business hours. But she did provide a list of the district’s outside law firms and instructions for how reporters could use the district’s website to calculate their legal fees themselves.
Under a 2017 change in state law, government agencies were allowed to charge the public — for the first time — for the cost of redacting documents. But each agency is largely left to decide for itself how much to charge.
Over the past few years, public bodies have occasionally levied eye-popping fees to turn over sensitive or potentially embarrassing documents.
Chester County Schools wanted $29,000 from the local paper for copies of the superintendent’s recent emails in 2018. Horry County sought to charge the Myrtle Beach Sun News $75,500 in 2019 for documents related to lawsuits it had settled over the previous five years.
In 2015, Charleston police quoted The Post and Courier a $200,000 fee to gain access to a database that recorded officer interactions with citizens. The city later agreed to make much of that information public after the newspaper filed a lawsuit.
But some agencies have found it just as easy to provide them for free, raising questions about why more can’t do the same.
S.C. Gov. Henry McMaster’s office, for example, provided The Post and Courier's requested records at no cost, just as it handled hundreds of FOIA requests last year for records detailing the governor’s response to the coronavirus pandemic.
“It’s good government,” McMaster said in a recent interview. “Our goal of every government office … should be to inspire the confidence of the people. And when the people ask for information, they ought to get it.”
State Rep. Weston Newton, a Bluffton Republican and architect of the state’s landmark 2017 FOIA measure, said the law has shown its worth, although minor changes may be needed.
“I have not seen the level of frustration and concern that existed in response times and quotes for production of documents that we did before we adopted the last revisions to the law,” Newton said. “But I’m sure there’s always room for improvement.”
The S.C. House Legislative Oversight Committee chairman has spent more than 20 years in government, first as a member of the Beaufort County Council and, since 2013, representing House District 120 that serves Beaufort and Jasper counties.
An attorney and longtime advocate for transparency, Newton said a robust FOIA law is among the best ways to improve trust with the public while holding elected officials accountable.
“Fundamentally, I believe the public’s business ought to be done in public, and I think that’s the way you hold people accountable,” Newton said. “In order to either restore or maintain the public’s confidence in government, I believe it is essential that the public have easy access to government documents and materials, and that it is easy for them to hear and see what their elected officials are doing.”
Upfront about fees
Regardless, the new law requires public agencies to be up front about what they might charge inquiring minds for records.
That means posting the list of potential fees on their websites.
But several local agencies hadn’t yet adapted to that requirement, the newspaper found.
That includes USC, which is in the process of building a new FOIA webpage, and Richland County, the state's second largest in population.
It also included Eastover, whose mayor also plans to upgrade the website to include a FOIA portal.
Three other agencies said they didn’t have a FOIA schedule because they didn’t think they needed one.
Clerks for the S.C. Senate and S.C. House of Representatives said they hadn’t charged anyone for public records in years but would work on updating their websites anyway.
Midlands Technical College general counsel Joseph Bias said earlier this month he was unaware that information wasn’t already on the website. The school added it the next day. Bias said Midlands Tech hasn’t charged anyone for records since he was hired in September 2019.
“We will continue that policy going forward,” he said.