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Despite new law, SC cities, counties are charging thousands of dollars for public records

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Gov. Henry McMaster signs FOIA bill (copy)

Gov. Henry McMaster holds a ceremonial bill-signing in 2017 for a revision to the state's Freedom of Information Act. The new law was aimed at speeding up records requests and reducing costs for residents to access public documents. Since then, newspaper editors and First Amendment lawyers say they have seen a surge of exorbitant FOIA costs. File/Staff

Two years ago, just after the Chester County school superintendent filed a lawsuit against the school board's chairwoman and its attorney, Travis Jenkins did what any good journalist would do.

The editor of the Chester News and Reporter submitted a Freedom of Information Act request seeking copies of emails to and from the superintendent. It was a routine request for messages that could provide insight into a breakdown in leadership — no different from other requests Jenkins has sent during his 17 years at the paper.

What was different was the bill he got back.

“They said they could accommodate my request for the low, low price of $29,000,” Jenkins said. “I didn’t have the money.”

That’s just one example of the eye-popping fees S.C. government agencies have levied for public records in recent years, even after state lawmakers changed the law in 2017 to speed up records requests and rein in charges for retrieving and turning over the documents.

Just before passing the General Assembly, that new law was stripped of a key section that would have made it easier and cheaper for members of the public to challenge fees they can’t afford. Also slipped in was a sentence allowing government agencies to charge the public — for the first time — for the costs of redacting documents.

Since then, newspaper editors and First Amendment lawyers say they have seen a surge of exorbitant FOIA costs, especially from local police agencies, school boards and city and county councils.

“They are the most inclined to set exorbitant fees to prevent people from seeking information that might be embarrassing to the local government,” said Jay Bender, a longtime First Amendment lawyer who also represents The Post and Courier. “I’m firmly of a mind that that it’s an effort to discourage citizens from looking into what government is doing.”

A few South Carolinians and news outlets have sued over hefty FOIA fees. But most don't have the money. More often, news editors say, high fees have led them to postpone stories and find workarounds, greatly narrow their requests for information or give up on stories altogether.

“The smaller papers cannot afford to challenge these charges in court,” said Bill Rogers, president of the South Carolina Press Association. “They just can’t afford to do it anymore. Government agencies know they can do whatever they want to do and nobody is going to challenge them.”

'They work for the public'

Such records are crucial to newsgathering, the public's understanding of government and the democratic process. They include spending receipts, government contracts, officials’ emails and police arrest records. Stories written from those documents have altered the outcome of elections, prompted new laws and sent powerful officials to prison.

Dan Johnson, the former 5th Circuit solicitor, is currently behind bars in part because of 2018 newspaper stories that stemmed from open records requests. Richland and Kershaw counties collectively charged more than $4,000 for the documents that detailed Johnson’s spending of more than $44,000 in taxpayer money on lavish trips to Las Vegas, Chicago and other locales.

The state’s Freedom of Information Act was written in 1976 to guarantee public access to that kind of information. But it was riddled with loopholes and exceptions that agencies have worn out in denying access to potentially embarrassing information.

Public bodies receive thousands of FOIA requests each year, many of them from private citizens, businesses, researchers and political activists as well as news outlets.

The law allows government bodies to charge for the reasonable costs of researching and retrieving requested documents. Those requests can take time and cost money to complete, especially if they seek documents that are older or scattered among different departments, said Kent Lesesne, director of government relations for the S.C. Association of Counties.

Lesesne said he advises counties to clearly spell out how they calculated a FOIA fee, especially with larger amounts that could come with sticker shock.

"I try to advise them on what the law says," Lesesne said. "It has to be reasonable. It has to be the actual cost."

But critics contend some agencies have abused that part of the law, jacking up fees to avoid turning over damaging information that could lead to critical stories.

Last year, Horry County sought to charge the Myrtle Beach Sun News $75,500 for records related to lawsuits it has settled over the past five years, and it refused to explain why the request would be so expensive. The Sun News reported that other local governments in the area fulfilled the same request for less than $50.

In 2018, the Horry County Police Department told the Sun News it would cost more than $23,000 to provide a breakdown explaining how sex crimes with minors have been investigated over the past five years. An Horry County police officer recently paid a $300 fine after pleading guilty to misconduct in office related to failing to investigate child abuse and other crimes.

“They constantly need a reminder that they work for the public and they work for the citizens,” said Sun News Executive Editor Stephanie Pedersen. “Charging those enormous amounts really contradicts their jobs.”

A small fraction of the disputes has led to litigation.

A Port Royal resident sued Beaufort County last year after it requested $12,000 to release County Council members’ emails, saying it would take 167 work hours — at as much as $72 an hour — for county employees to compile the electronic records and redact them.

The Charleston Police Department tried to charge The Post and Courier $200,000 in 2015 for access to the agency’s field contact records, which include personal information from thousands of people who crossed paths with officers but were not charged with a crime. The agency eventually agreed to settle a legal fight with the newspaper.

But not everyone can pay the thousands of dollars necessary to file a lawsuit and take their case to the state’s circuit court. That leaves them with little recourse if a public agency demands an extraordinary sum for records.

The State newspaper in Columbia recently had to pay $350 for the personnel records of two Lexington County sheriff’s deputies it reported were involved in a controversial death investigation. Sheriff Jay Koon said the department was charging $22 per hour for the records but declined to explain why it would take nearly 16 hours to turn over two personnel files.

But a similar fee was too much for the Independent Voice of Blythewood and Fairfield, two newspapers that share one full-time editor and several freelance writers.

Barbara Ball, the publisher, said the outlet recently abandoned a story because the public body at the center of it requested more than $300 to provide critical records.

“We’re so shorthanded,” Ball said. “When they asked for that much money, we can’t sue. So it didn’t go any further than that.”

In 2018, Ball said, Richland County charged her paper $309 to provide council spending records it had already retrieved and provided to The State newspaper. Ball said her paper wound up getting the documents from The State instead of paying the county for them.

Even South Carolina’s largest papers aren’t immune.

The Greenville News has seen a series of pricey FOIA estimates while researching for recent projects, news director Steve Bruss said.

The paper has shelled out hundreds of dollars for a few requests and as much as $1,200 for one set of documents. But it couldn’t afford an $8,000 charge from the Greenville County Sheriff’s Office for internal affairs reports on disciplinary actions for deputies, Bruss said.

“We passed and looked for other ways to get the information,” he said.

Changes on the way?

The first draft of the 2017 FOIA law change included a possible solution: Let S.C. residents quickly and cheaply dispute those charges in a special administrative law court.

But at the tail end of a seven-year push for the new law, state Sen. Margie Bright Matthews, D-Walterboro, successfully argued to strip out that section. She said it makes no sense to require local governments — and the people challenging them — to drive to Columbia for hearings that can be held locally in circuit court.

She instead proposed an amendment that requires FOIA cases to be heard in circuit court within 10 days of a case being filed and settled within six months.

Bright Matthews said this week she doesn't believe moving the cases to administrative law court would have been less costly. She said the new law aims to drive down costs for municipalities as well as the public.

"I believe in transparency, and I also believe in keeping costs down for taxpayers," she said.

But the new law isn't working well enough, said state Rep. Bill Taylor, an Aiken Republican who helped write it. Taylor, a former television news reporter, has filed separate legislation to move FOIA cases to administrative law court, but that proposal has yet to gain traction in the General Assembly.

“The circuit court is a poor process in that it is extremely expensive and time-consuming,” Taylor said. “People won’t use that as an avenue for FOIA. The administrative law court would have been an easy solution to that.”

In lieu of those changes, S.C. reporters and researchers have relied on government bodies to fill records requests in good faith. Sometimes that works. Other times, news outlets have written stories and columns publicly shaming agencies for their fees.

Jenkins', for example, wound up getting most of the emails he wanted from Chester County School District after writing a series of stories and editorials about the fees. Others outlets haven't been as fortunate.

"The 2017 amendments (to the FOIA law) had the right goal in mind," said Desa Ballard, a West Columbia attorney who has sued several S.C. agencies for public records. "The compliance has continued to be as spotty as it was before the 2017 legislation."

Note: A previous version of this story incorrectly attributed a $75,500 fee to the Horry County Police Department. The story has been corrected to note that fee was assessed by Horry County.

Reach Avery Wilks at 803-374-3115. Follow him on Twitter at @AveryGWilks.

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