COLUMBIA -- Freedom of the press was debated Wednesday inside the S.C. Supreme Court, where The Post and Courier argued that the Berkeley County School District should be more open in how it evaluates its superintendents.
The overriding theme was that elected school board officials should not be able to suppress their superintendent's performance evaluations under cover of attorney-client privilege.
The dispute dates to 2007 when school district officials refused the newspaper access to the board members' individual summations of then-Superintendent Chester Floyd. The district said its documents were protected under attorney-client privilege because its lawyers had facilitated the process.
The newspaper's lawsuit countered that the tactic circumvented the state's Freedom of Information Act.
In court Wednesday, newspaper attorney Charles Baker called the district's motives an "end run" around the FOIA, drawing in "lawyers where they are not needed."
At least one member of the court panel showed signs of agreeing. Justice John Kittredge wondered aloud if the FOIA might eventually have no meaning at all "because everything would be run through a law firm and protected under attorney-client privilege."
The case began after school officials set out to give Floyd his annual evaluation, which included a written report by each of the board's members. District lawyers argued that it was necessary to enlist the help of an attorney because some newly elected members had created a contentious environment.
If Floyd received a satisfactory review, he would receive a 5 percent salary increase.
In the first legal go-round, Circuit Court Judge Roger Young of Charleston denied the paper's access request, saying there was no need for the process to move forward and granting summary judgment in favor of the district.
Young held 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.
After five of the nine board members gave Floyd a commendable review for 2007, he received a 5 percent raise, bringing his salary to $196,980. The district refused to disclose what rating the other four board members gave him.
In its appeal, the newspaper said Young should have given more opportunity for discovery in the case and allow access to a copy of the questionnaire school board members used.
In court Wednesday, school board attorney Kenneth Childs told the justices that Young correctly interpreted the FOIA on the basis that it specifically exempts legal correspondence and work-product from scrutiny.
Childs' statement drew out retired Justice James Moore, who sat in for Chief Justice Jean Toal on the panel; she was away at a conference.
"You contend a blank questionnaire is privilege?" he asked Childs.
Childs answered that he does when it is attached to legal documents. "There is no public policy question here," he added. Moore also lightheartedly suggested that resolving the matter could be done by simply removing the "staple" and turning over the blank questionnaire.
Baker said the fact that the media's FOIA interests were colliding with attorney-client privilege necessitated a determination of "which one trumps the other."
The court did not indicate when it would rule; a decision could be months away. The South Carolina Press Association is supporting the newspaper's stance.
Floyd has since moved on. After leaving Berkeley County in January 2009, he is now at Lexington County School District 3. To date, the Berkeley County school district has spent about $73,000 on legal bills defending its position.