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It's illegal for SC officials to hide public records. But if they're lost, you can't sue.

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The S.C. Court of Appeals ruled Wednesday that a citizen can’t sue the government for failing to save documents that the public has a right to access.

The case came from Newberry County, where attorney Desa Ballard represented a former part-time chief magistrate. To build her case, Ballard requested copies of about five years’ worth of the county administrator’s texts and emails in December 2014.

It’s the straightforward sort of request that counties field every day, with documents considered public under state law. But there was a problem not fully accounted for by the Public Records Act and the Freedom of Information Act: The administrator’s laptop had crashed a few months before, erasing much of the information Ballard needed. The county didn’t have a central email server or backup system and hadn’t archived the text messages.

Records clerks did their best to help, according to court documents, plucking relevant emails from other employees’ inboxes and providing about 2,000 pages of the messages that Ballard had asked for.

Ballard sued the county in circuit court, where a judge split the decision and had Newberry County cover about half of Ballard’s legal fees. The county had violated the Freedom of Information Act by failing to make and follow a retention policy for electronic documents, the judge ruled, but since the documents were already lost there was nothing he could do.

Besides, the county argued, Ballard didn’t have a right to sue. The FOIA law requires government bodies to hand over documents that the public requests but doesn’t outline how they’re supposed to be archived in the meantime. Because the messages had already been deleted by the time Ballard requested them, it was really the Public Records Act that dictated how the information should be stored.

And while the two laws cover similar material, there’s a key difference in how they’re enforced: the Public Records Act holds governments criminally liable for dodging its rules but doesn’t say that a private citizen has the right to sue.

Ballard appealed the case, asking the Court of Appeals to let her either sue under FOIA or enforce the Public Records Act under a little-used public importance exception, but she was denied.

Instead, Judge Blake Hewitt penned an opinion finding that the circuit court had erred — not by refusing Ballard standing, but by ruling that the county had violated FOIA at all.

Ballard told The Post and Courier that Newberry County had set aside funds for a server to back up public records, as recommended by information experts, but hadn’t followed through on the purchase. The county’s attorney, Nick Nicholson, didn’t remember details of the plan but said it didn’t matter: the law, much of it written before computers were widely used, doesn’t dictate a specific way that records have to be preserved.

“For every dollar you spend on a server to back up documents, you can’t spend that on the sheriff’s department or EMS,” Nicholson said. “What works in Newberry County won’t work in Charleston County.”

The county has since updated much of its record system, Nicholson said.

The final opinion in the case acknowledged that Ballard’s plight was pitiable, and that public records laws aren’t much good without preserved documents to fulfill them. But the county had already paid half her fees to take responsibility for a related but straightforward FOIA violation and couldn’t be expected to take precautions that weren’t outlined in the law.

“We fear the court’s decision invalidates years of progress in public scrutiny of government activity,” Ballard said.

Ballard worries that public agencies will now take license to dispose of files they don’t use regularly, before citizens have a chance to ask what’s in them. It’s a natural concern, the court’s opinion admits, but not one they’re authorized to fix.

Reach Sara Coello at 843-937-5705 and follow her on Twitter @smlcoello.

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